Volume 82 — Federal Reporter

On a former hearing, a preliminary injunction ivas granted. A statement of the case is found in the opinion then delivered. 80 Fed. 218. The defendant the city of Indianapolis now demurs to Hie bill, and also moves to dissolve the injunction.

<p>1. Equity — Pleading—Time op Filing Answbií.</p> <p>. Code W. Ya. c. 123, § 5, provides that, after tlie filing of a bill, a rule may bo taken “to declare, plead, reply, enjoin, or for oilier proceedings.” Section 44 provides (bat, “if tlie defendant fails to appear at tlie rule day at which the process against him is returned executed, * * * tlie plaintiff, if he lias filed liis * * * bill, may have a * * * decree nisi against him,” and also that, if defendant fails to appear at the next rule day thereafter, the bill shall be entered as taken for confessed. Held, that defendant is not required to plead to the merits of tlie suit until the decree nisi has been taken, although the bill may be filed on or before the return day of the summons.</p> <p>2. Removal op Causes — Petition-Time op Filing.</p> <p>Act Cong. March 3, 1887 (24 Slat. 554), provides that the party desiring to remove a cause from a state court to the circuit court of the United States on the ground of diverse citizenship must file Ills petition “at the time, or at any time before the time, when the defendant is required by the laws of the state * * * to answer or jilead to the declaration or complaint of the plaintiff.” Held, that this has reference to the time when he is required to plead to the merits of the cause, and does not limit the filing- of the petition to the time when pleas in abatement must be filed under the state practice.</p>

Suit in equity by W. G. Moore, a citizen and resident of the state of New York, against W. N. Bahr, C. F. Glover, W. Livingston, S. Duncan, J. J. Browning, William J. Schneider, E. V. Baker, and J. M. Scott, citizens and residents of South Carolina, and state constables. Heard on rule to show cause why injunction should not issue, and return thereto.

<p>Alien — Deportation- op Chinaman — Refusal to be Sworn.</p> <p>A Chinese person, who is shown by uncontradieted evidence to be entitled to remain in the United States, cannot be deported because of his refusal to be sworn to testify at the request of the prosecution.</p>

<p>1. United States Marshals — “Endeavor Expenses” — -Vouchees.</p> <p>A marshal cannot recover in a suit against tlie government a charge of two dollars a day, under Kev. S1. § 829, allowing him the sum actually expended in endeavoring to make an arrest under process, not to exceed two dollars a day, in addition to 1ns compensation for service and travel, where his claim is not supported by vouchers or an itemized statement, and was for that reason disallowed by the comptroller.</p> <p>2. Same — Mileage — Serving Subpcena in Criminal Cases before Commissioners.</p> <p>Where a United States commissioner, on issuing the warrant for the arrest of a person charged with the violation of the internal revenue laws, at the same time issued subpoenas for witnesses to be used to sustain such charge,,which subpoenas were left blank as to time and place of return until return was made, the practice being for the marshal to serve such subpoenas only in case the arrest was made, the marshal Is entitled, under Kev. St. § S2S), to mileage on such subpoenas, when served, from the place of return to the place of service, the same as though issued after the warrant had been served and returned.</p> <p>8. Same — Transportation op Prisoner.</p> <p>Where a defendant committed by a United States commissioner is confined in the nearest jail to await the action of the grand jury, and after Indictment, on an order to bring him into court, is taken from such jail to court, the marshal is not entitled, in addition to the mileage allowed by Kev. St. § 829, “for transporting criminals,” to treat the order as an original process, and charge thereon two dollars for service, and mileage at the rate of six cents from the place of holding court to the jail.</p> <p>4 Same — Attendance before Commissioner.</p> <p>A marshal attending criminal examinations in separate and distinct cases on the same day, before the same commissioner, is not entitled to fees in each case, but only to the two dollars per diem allowed by Rev. 'St. | 829.,</p>

<p>1. Patents — Infringement.</p> <p>The use of a plain iron ring to prevent the ends of barrel bodies molded from paper pulp from shrinking or losing their iiroper shape while drying, is not an infringement of a patent for an article consisting of a ring having an inwardly-extending flange and a cross fastened down on the flange, its arms extending beyond the outer periphery of the ring.</p> <p>2. Same — End Supporter por Puir Barrels.</p> <p>The Laraway patent, No. 339,064, for an improvement in mechanism for preventing a molded barrel body from shrinking in diameter at either end while being dried, if valid at all, must, in view of the prior state of the art, be restricted to the precise mechanism described.</p>

<p>Suit in equity by William D. Hale, as receiver of the American Savings & Loan Association, against T. W. Bugg and others. Heard on the pleadings and stipulation of facts.</p>

<p>Í. INJUNCTION — MARCHING ON HkíHWAT — INTIMIDATING EMPLOYES- — CONTMMI>T.</p> <p>All injunction was granted and served on defendants, restraining them and all others from in any way interfering with the management, operation, or conducting of the mines named in the bill, either by menaces, threats, or intimidation of any character used to prevent the employes of said mines from going to or from the same, or from engaging in their usual business of mining. Defendants joined a body of over 200 striking miners in marching, with music and banners, past one of said mines and the homes of the miners working therein, marching and count «.marching for three days along the public highway between the mine and the homes of the miners, halting in front of the miñe, and taking positions on each side of the roacl which the miners must cross in going to and from the mine, before daylight and late at night, at the time when such miners were going to and from their work. The avowed object of the strikers was to influence the miners to join in the strike, and this marching and halting in front of the mine were with the evident intent to accomplish this object by intimidation, and some of the minors were thereby intimidated and kept away from their work. Held, that defendants were guilty of contempt.</p> <p>2. Same — Use of Highway.</p> <p>Any use of a public highway which prevents its reasonable, seasonable, and ordinary use by the general public, or by citizens, for purposes connected with their regular business, is unlawful, and in a proper caso the continuance of such use may be enjoined.</p> <p>3. Same-Mine Ownek — Unlawful Inthbfebence.</p> <p>The owner of a mine is entitled to the aid of the courts to protect him, against the unlawful interference of others, in the continued enjoyment of the right to operate his mine, the right to employ the labor of those willing to work, and his right to the use of the highway leading to his mine, for himself and his employes.</p>

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

<p>Suit by the Investor Publishing Company of Massachusetts against G*. A. Dobinson and the Investor Publishing Company for an injunction and accounting. Heard on bill and answer and agreed statement of facts.</p>

This was a suit in equity for alleged infringement of letters patent No. 512,113, issued January 2, 1894, to complainant, Janowitz, for-a dress stay. The circuit court found that the patent was valid and infringed, and entered a decree for the complainant. 80 Red. 731. The defendant has appealed.

Suits in equity by the Nashville, Chattanooga & St. Louis Railway Company against George E. McConnell and others, by the Louisville & Nashville Railway Company against W. S. Duckworth and others, and by the Western &■ Atlantic Railway Company against W. S. Duckworth and others. Heard on motions for preliminary injunctions on the pleadings and proofs.

<p>1. Appeal — Objections in Loweb Court — Equity Jurisdiction.</p> <p>In an equity proceeding to quiet title, where the Mai court had jurisdiction of the subject-matter, an objection to the jurisdiction, on the ground that the complainant had a plain and adequate remedy at law, comes too late when made for the first time on appeal.</p> <p>Si Execution — Sheriff's Deed — Laws op California.</p> <p>The grantee in a sheriff’s deed, made by the successor in office of the sheriff who sold mining property on a valid decree of foreclosure against the owner, has title to such property by virtue of Code Civ. Proc. Cal. § 700, which provides that “upon the sale of real property the purchaser is substituted to and acquires all the right, title, interest, and claim of the judgment debtor thereto,” and the act of 1858 authorizing sheriffs to make deeds for lands sold by their predecessors (St. Cal. 1858, pp. 95, 96).</p> <p>3. Mortgages — Foreclosure Sale — Statutory Judgment Lien.</p> <p>The lien enforced upon a. foreclosure sale is not a statutory judgment lien, but the contract lien of the mortgage, and the title of the purchaser rests upon such lien. Code Civ. Proc. Cal. § 671, prescribing the period for which a judgment shall live or bo a lien, has no application to such sale.</p> <p>4 Same — Time of Sale.</p> <p>A sheriff’s sale under foreclosure, made more than five years after entry of the decree, is not void by reason of the provision of Code Civ. Proc. Cal. I 681, that execution may be issued at any time within five years after entry of judgment, if the order of sale was Issued within the five years.</p> <p>5, Mining Claims — Location by Alien — Declaration of Intention.</p> <p>The subsequent declaration of intention ro become a citizen, by an alien who had explored and located a mining claim on public lands, relates back to the date of the location, and, in the absence of adverse rights attaching prior to the declaration, operates to validate the location.</p>

<p>Patents — -Suit por Infhinoement— Laches — Excuse for Deray.</p> <p>A patentee, who has quietly acquiesced in the open and notorious infringement of his patent for 16 years, cannot maintain an action for such infringement. It is no excuse for such delay that his co-owners of the patent would not agree to prosecute infringements.</p>

This was a bill in equity by the Boston Lasting-Machine Company against Erastus Woodward, James Barrett, and Thomas Barrett, for alleged infringement of letters patent No. 248,543, issued October 18, 1881, to the said Frastus Woodward for a “lasting and fastening machine.” The complainant was the owner of the machine by assignment. The circuit court held that there was no infringement, and dismissed the bill. 75 Fed. 272. Complainant has appealed.

This was a suit in equity by George A. Bates against George E. Keith for alleged infringement of letters patent No. 419,239, for a welt-guide for sewing machines.

<p>These were two libels, one in rem against the steamship St. Paul, and the other in personam against her owner, the International Navigation Company, to recover for salvage services rendered to the said steamer by the libelants, Israel J. Merritt and Israel J. Merritt, Jr., composing the Merritt Wrecking Organization, and the president and the directors of the Insurance Company of North America.</p>

<p>1. MASTER AND SERVANT — KkOMOENCE—ORDINARY RISKS OP EMPLOYMENT.</p> <p>A master of a iugbonf who ordered ono of the crew to'jump ashore to attach a line, is not guilty of negligence if the latter, by reason of his being unaccustomed to jumping, received injuries in attempting io execute the master's order, where ii doc's not appear that the masíer liad knowledge of his inability, since a master of a tugboat is justified in assuming that a member of the crew is accustomed to all ordinary duties required of men on such vessels.</p> <p>3. Mastkr asn Servant — Auíoliuence—Ordinary Risks op Employment.</p> <p>in such case rite master is not guilty of fault, unless the distance from the wharf was so great as to render the service unnecessarily dangerous to a man of ordinary strength and activity.</p> <p>8. Master and Sum ant — .N'cglkíioxce—Emergency.</p> <p>The plaintiff, who while jumping ashore to attach a line failed to light upon the wharf, and slipping down its breast into the water was struck by the boat and injured, alleged as negligence on the part of the master his failure to keep tN> boat off from the wharf after the plaintiff had fallen in the water. //>M, that the master ivas not guilty of negligence, since' it appeared that he had acted in the emergency with which he was confronted in a manner which seemed best to him under the circumstances.</p>

<p>In Error to the Circuit Court of the United Stales for the Southern 'District of Florida.</p> <p>On motion to dismiss the writ of error and affirm the judgment of the circuit court.</p>

<p>1. Federal Court — Jurisdiction—Mexican Grants.</p> <p>Wiien both parties claim under Mexican grants, confirmed and patented by the United States in accordance with the provisions of the treaty of Guadalupe Hidalgo, and the controversy is only as to what were the rights thus granted and confirmed, the suit is not one arising under said treaty, so as to confer jurisdiction on a federal court.</p> <p>8. Same — Allegations of Bill — Effect of Disclaimer on Answer.</p> <p>When the only ground of federal jurisdiction grows out of allegations in the bill that defendant’s claim of title is based in part on certain acts of a state legislature which attempt to transfer to him the title held by complainant's grantors at the time of their passage, the court will not retain jurisdiction when an answer is filed by the defendant denying such allegations and disclaiming any title or claim of title not held by him before the passage of said acts.</p>

<p>1. Equity Practice in Federal Courts — Parties.</p> <p>Under the forty-seventh equity rule, the complainant In a federal court need not join any but indispensable parties, when their joinder will oust the ‘jurisdiction; and, if he does join them, the court may permit their dismissal, and thereupon it has the same jurisdiction in the case that it would have had if they had never been made parties. Their subsequent introduction into the suit on their own petition, evén if they be citizens of the same state with complainant, will not oust the jurisdiction.</p> <p>2. Federal Courts — Following State Decisions — Powers of State Corporations.</p> <p>When the highest court of a state has determined the extent of the powers and liabilities of corporations created under its laws, that decision is conclusive in the national courts in all cases involving no question of general or commercial law, and no question of right under the federal constitution.</p> <p>3. Corporations — Power to Mortgage Property and Franchises.</p> <p>A terminal and warehouse company organized under the Iowa statutes for the purpose, among others, of constructing and maintaining a railway, has express authority (McClain’s Code, §§ 1955, 1965, 1966) to mortgage its present and future acquired property and its franchises, and this power Is not lost by failure to claim it in the articles of association.</p> <p>4. Perpetuities — Iowa Statute — Lease and Mortgage.</p> <p>Under the statute of Iowa which provides, “Every disposition of property is void which suspends the absolute power of controlling the same for a longer period than the lives of persons then living and for twenty-one years thereafter” (McClain’s Code 1S88, § 3091). a mortgage in the form of a trust deed, given by a corporation to secure its bonds payable in 10 years, which recites the existence of a lease of the same property for 100 years, and transfers to the trustee all the rights of the mortgagor thereunder, is valid and binding, whether the lease and mortgage are considered separate instruments or a tripartite agreement.</p> <p>5. Corporation — Mortgage—Excessive Indebtedness.</p> <p>A mortgage given by a. corporation to secure a debt in excess of the amount of indebtedness which it had power under the statute to contract is binding on the corporation and its subsequent creditors, where the corporation lias received the full consideration for the debt secured, and the transactions were free from fraud.</p> <p>6. Same— Estoppel — Mortgage Executed by Officers.</p> <p>After a corporation has negotiated and received the proceeds of bonds secured by a mortgage executed by its officers, sealed with its corporate seal, and reciting that it was executed by authority of the corporation, both the corporation and its subsequent creditors are estopped from denying the validity of the mortgage because its execution was not authorized 1:, a proper resolution of its'board of directors.</p> <p>7. Same — Statutory Redemption — Sale in Solido.</p> <p>The right of redemption and right of sale in parcels given by the statutes of Iowa (McClain’s Code 1888, §§ 4317-4331) do not extend to real estate of a corporation mortgaged with its franchise to take, hold, and use property for public purposes, the chief value of which depends upon its unity and use for such purposes.</p>

<p>Mortgages — Separate Mortgage of Improvemekts.</p> <p>Under' Ci-v. Code Cal. § 2047, providing that “any interest in real property capable of being transferred may be mortgaged,” personal property, which by being attached to land by the owner has become a part of the realty, may still be mortgaged separately from the land itself; and such mortgage, when properly recorded, is enforceable against a subsequent purchaser of the realty.</p>

<p>Heard on Exceptions to Master’s Keport.</p>

This is a bill in equity for an accounting and for a decree establishing a lien upon the one-quarter interest in the Keystone Min-' ing Company, situate in Lincoln county, Key., for the amount found,… Held: but not before.” The following receipt is indorsed upon said contract: “Received at Fenner, California, August 8, 1892, of O. O. Perry, the sum q| twenty thousand dollars ($20,000) in full satisfaction of and in full compliance with the foregoing contract.

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>This is an appeal by the United Waterworks Company, Limited, from an order confirming the report of a master which rejected certain coupons presented by the appellant for allowance under a decree of foreclosure upon the Omaha waterworks.</p>

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

This was an action at law, in the nature of ejectment, by W. W. Schoolfield and Henry G. Miller, as.surviving partners of Schoolfield,, Hanauer & Co., against John F. Rhodes and others. The case was tried to the court without a jury, and judgment was given for defendants. Plaintiffs have brought the case to this court by writ of' error.

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

Action at law by the Illinois Steel Company against John Budzisz and others. On motion to strike out special matter alleged in the answer. This action is in ejectment, and the plaintiff moves to strike out, as irrelevant, incompetent, etc., special matter alleged in the answer by way of defense and counterclaim.

This is a writ of error to review a judgment of the circuit court of the United States for the Western division of the Northern district of Ohio. The plaintiff on the 9th of October, and prior thereto, was employed as a brakeman by Samuel R. Calloway, receiver of the Toledo, St. Louis & Kansas City Railway Company, appointed by the circuit court of the United States for the Northern district of OMo.

This suit was brought by Maier & Berkele, a mercantile firm composed of Herman A. Maier and John Berkele, who are defendants in error, against R. G. Dun & Co., a firm composed of Robert G. Dun, Arthur J. King,' and Robert D, Douglass, who are plaintiffs in error, to recover damages for alleged libelous matter published by ihe latter firm concerning the said John Berkele.

<p>Master and Servant — Action for Personal Injuries — Incompetency of Fellow Servant.</p> <p>In an action by an employé for personal injuries, the ineompetency of the foreman in charge of the work and crew affords no ground of recovery, if it appears that the injuries were caused by the carelessness of another member of the crew in executing the foreman’s orders to uncouple cars, but in a manner not directed by the foreman.</p>

<p>In Error to the Circuit Court of the United States for the Sou (hern District of Xew York.</p> <p>This writ of error was brought to reverse a judgment for 82.034.85 rendered upon a verdict of the jury In favor of Michael Coneys, the plaintiff below, in an action to recover damages for personal injuries caused by the negligence of persons alleged to be the servants of the defendant, a steamship company having a line of steamers running to and from New York, and engaged in the transportation from New York to London of cattle, horses, grain, and general merchandise. The plaintiff was an employe of an elevator company, and at the time of the accident was at work upon a canal boat alongside of the defendant’s steamer Mississippi, and between it and a. grain elevator from which the .steamer was loading. He was injured by the fall upon him of a wooden shutter which was used for closing a gangway at the side, of the top deck of the steamer, and was a part of the fittings of the vessel for the carriage of cattle, and which was being handled by carpenters in the employment of II. P. Kirkham & Son. a firm of carpenters, who were repairing the cattle stalls. The accident happened through the negligence of the carpenters. The defendant relied upon the jrosilion that the workmen were in the employment of independent contractors, and were not its servan!/, and. in various forms, requested the trial court to thus instruct tire jury. The court charged the jury that the evidence showed they were not the servants of an independent contractor, but that they were doing the ship’s work at the request of, and under the direction of, the ship’s officers. To this charge the defendant excepted, and the assignments of error relate to this exception, and to ihe various refusals of the trial judge to direct otherwise. The facts in regard lo the course of business of the defendant with the firm of H. P. Kirkham & Son are given in the opinion.</p>

This was a suit in equity by John W. Warner, as receiver of the First National Rank of Watkins, N. Y., against William J. Penoyer and others, directors of said bank, for losses of the bank alleged to have been caused by defendants’ negligence as such directors.

<p>1. United States Marshal — Removal of Office Deputy — Civil Service Law.</p> <p>An office deputy marshal appointed hy the joint action of the attorney general and the marshal under the provisions of the act of May 28, 1806 (29 Stat. 182, § 10), .is protected in his position hy the civil service laws and rules, and is not subject to removal by the marshal.</p> <p>2. Injunction — Removal prom Office — Civil Service Law.</p> <p>One who holds a position under the protection of the civil service laws and rules is entitled to the remedy by injunction to prevent his unauthorized removal therefrom.</p>

<p>Sur’Demurrers to the Petition of the Interstate Commerce Commission, and Motion to Dismiss Petition.</p>

<p>Contempt — Interference with' Property rtr Custody of Court — Delivery of Goods under Writ of Replevin</p> <p>Wliere a marshal, wlxo had taken goods on a writ of replevin directing him to deliver them to the plaintiff, permitted plaintiff’s agents to pack the goods, load them into a car, and procure a shipping receipt and bill of lading therefor, sucli acts constituted a delivery to the plaintiff, and the goods thereby passed out of the custody of the court, and a sheriff who thereafter levied on them under a writ of attachment issued by a state court was not guilty of contempt of the federal court.</p>

<p>1. Criminal Law — Invalidity or Sentence — Omission or “Hard Labor.</p> <p>In the courts of the United Slates the rule is that a judgment in a criminal case must conform strictly to the statute, and that any variation from its provisions, either in the character or extent of the punishment inflicted, renders the judgment void.</p> <p>2. Same — Habeas Corpus — Extent op Relief Granted.</p> <p>Petitioner was indicted and convicted under section 5392 of the Revised ■Statutes of the United States, which imposed as a penalty fine and imprisonment at hard labor. He was sentenced to pay a fine and he imprisoned in the House of Correction at Detroit, Mich, (a penitentiary), but “hard labor” was omitted in the sentence and judgment. On habeas corpus the defendant was released, but without prejudice to the right of the United States to take lawful measures to have him resentenced on the verdict against him.</p>

<p>Usternaii Revenue — Proceeding for Forfeiture of Spirits — Motion to Produce Evidence.</p> <p>In a proceeding for the forfeiture of distilled spirits on the ground of a fraudulent violation of the internal revenue laws, the government will not be required, on motion of an intervening claimant, to furnish such claimant before irinl wMli tlie report of tlie ganger showing the measurements of tlie packages containing such spirits, such report being on file in tlie proper district, and the claimant being entitled, on application there, to an inspection or a cer tilled copy of the same.</p>

This was a suit in equity by Benjamin S. Lovell against Mary Elizabeth Johnson for alleged infringement of letters patent 3Sfo. 230,409, granted to Charles H. Entebrouk, July 27,1880, for an improvement in breech-loading firearms.

<p>Action at law by L. E. Holden against the Utah & Montana Machinery Company and George E. Chandler. Heard on motion to dismiss.</p>

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

<p>1. Receivers — Ai/lowance oe Compensation.</p> <p>Tlie proper time for the final allowance of compensation to a receiver for services is at the close of the receivership; and until that time full compensation will not be made.</p> <p>2. Same.</p> <p>Where a receiver of an insolvent corporation is clothed with the duty of winding- up its affairs with all convenient speed, partial or intermediate allowances of compensation for the receiver should be materially less than the worth of the services rendered by the receiver prior to the making of such allowances; and the final allowance, made at the close of tlie receivership, should be so adjusted that the receiver will have fair and just compensation for his services as a whole, notwithstanding the inadequacy of the partial or intermediate allowances considered by themselves.</p>

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

<p>This was an action in ejectment, brought by Mary A. Brickell and others against James P. Farrell and others.</p>

This was a suit in equity by Michael Clune against Thomas Madden, Edward J. O’Reilly, and Christopher A. O’Connor for alleged infringement of a patent relating to folding bed-lounges. The circuit court held the patent invalid, and dismissed the bill. 77 Fed. 205. The complainant has appealed.

This was a suit in equity by the Universal Winding Company against the Willimantic Linen Company for alleged infringement of three patents covering, respectively, a machine for winding cops, a method of winding cops, and a cop wound according to such method. On final hearing.

<p>Removal op Cwses — National Bank Receivers.</p> <p>A receiver o£ an insolvent national hank, appointed hy the comptroller of •.Lo eurmioy. against whom an action is brought in a state court to recover loss than $2,000. has no right to remove the same to a federal court.</p>

This was a suit in equity by the Northern Pacific. Railway Company against Fred Kurtzman, treasurer oí Franklin county, Wash., to remove a cloud on the title to certain lands, and to enjoin the sale thereof for taxes under a judgment of a state court, which judgment is alleged to be null and void. The cause was heard on demurrer to the complaint.

<p>1. Jurisdiction op Federal Courts — Federal Question.</p> <p>A suit to restrain the enforcement of a city ordinance limiting charges for artificial gas, on the ground that it allows no profit to the gas company, and therefore deprives it of its property without due process of law, and denies it the equal protection of the laws, contrary to the fourteenth amendment, is one involving a federal question, and a federal court has jurisdiction, regardless of the citizenship of the parties.</p> <p>2. Injunction — Temporary Restraining Order.</p> <p>Whether a temporary restraining order should bo granted pending litigation in a suit for perpetual injunction depends largely on the character and extent of the inconvenience or injury that will result 1o the one ¡¡arty or the other from granting or refusing it. If the injury to the complainant, .from its refusal, should his contention be sustained, would be practically irremediable, it will be granted on terms protecting the rights of the defendant.</p>

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

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

<p>1. Novation — Sai.b of Bonds Pledged as Collateral — Rights of Holders.</p> <p>Where bonds of a corporation, pledged as collateral security for debts of the corporation, are subsequently sold by the board of directors, the purchaser assuming and agreeing to pay such debts, the sale does not create a novation of the indebtedness, so as in any wise to affect the rights of the creditor to proceed against the corporation, or Its property in the hands of a receiver.</p> <p>2. Priority of Liens — Levy by Sheriff — Property Surrendered to Receiver.</p> <p>A sheriff levied an execution on the property of an insolvent corporation, and left it in custody of the president of the corporation, who agreed to hold it for him. Subsequently a receiver was appointed by the federal court, who took possession of the property in the absence of the custodian and the sheriff, and subsequently agreed with the sheriff that, if any lien attached under his levy, and it had not been lost by abandonment, it might be asserted in the federal court. Held, that the judgment creditors acquired a prior lien on the property thus levied on, which had not been lost by abandonment, and which would be enforced by the federal court.</p>

<p>1. Municipal Corporation — Bid Made by Mistake — Relief in Equity.</p> <p>A Bid for public work can be withdrawn, upon, the ground of mis lake, although the charter of the city contains a provision that bids cannot be withdrawn or canceled “until the board shall have let the contract for which such bid Is made and the same shall have been duly executed."</p> <p>2. Same — Injunction.</p> <p>A court of equity will enjoin the enforcement of such bid, induced by the mistake of one, although it could not reform such bid unless the mistake had been mutual.</p>

This was a suit by Jobn Fraser, a subject-of the queen of Great Britain, against the McConway & Torley Company, a corporation of the state of Pennsylvania. The cause was heard on demurrer to the bill of complaint.

This was a suit in equity by Bass, Ratcliff & Gretton against Christian Feigenspan, a corporation, to restrain the alleged infringement of a trade-mark. The cause was heard on complainant’s motion to amend its bill of complaint.

<p>1. Equity — Jurisdiction—Action for Legacy.</p> <p>Under the decisions of the supreme court of the United States and of the supreme court of Ohio, a suit for a legacy in that state is of equitable cognizance.</p> <p>2. Federal Courts — Jurisdiction of Suit for Legacy — Pendency of Probate Proceedings.</p> <p>Pending the settlement of an estate in the probate court, a citizen of another state, who is a legatee under the will, may maintain a suit in the federal court against the resident executor and the other legatees and heirs to recover such legacy.</p>

<p>1. CONSTITUTIONAL LAW — AMENDING CHARTER OF RAILROAD COSIX’ANY — -EToRTH Carolina Act.</p> <p>The North Carolina statute of February 25, 1897, entitled “An a.et to amend an act entitled an act to incorporate the Atlantic and North Carolina Railroad Company and the North Carolina and Western Railroad Company,” impairs the obligations of the contract in the charter, by repealing the provision that the voting power of the state as a stockholder shall be 300, and that the voting power of each stockholder shall be ascertained by a fixed rule therein stated, and is therefore unconstitutional and void.</p> <p>2. Same — State as a Stockholder — Power, to Remove Directors and Proxy.</p> <p>It is no violation of the contract between the- state and the private stockholders of the North Carolina & Atlantic Railroad Company for the state to remove, before the expiration of their terms, without the consent of the private stockholders, the directors and proxy which it is by the charter entitled to appoint.</p>

This was a suit in equity by the American Freehold Land-Mortgage Company of London, Limited, a judgment creditor of an insolvent Kansas farm-mortgage company, against Chauncey B. Woodworth, to enforce defendant’s liability as a stockholder in the Kansas corporation under the Kansas statute. The cause was heard on demurrer to the bill.

<p>Public Lands — Ghauts to Northern Pacific Railroad Company — Forfeiture.</p> <p>The Northern Pacific Railroad Company not having definitely located any line of road between Portland and Wallula, the original grant of lands to it by Act July 2, 1864 (13 Stat. 365, § 3), never took effect as to lands between those points; and those of such lands lying contiguous to the lino built from Portland to Tacoma, and within the limits of the grant made by the joint resolution of May 31, 1870 (16 Stat. 378), were embraced within the latter grant, and on compliance with its conditions the title thereto vested in the company and its grantees, and was not affected by the forfeiture act of September 29, 1890 (26 Stat. 496).</p>

<p>On Petition for Rehearing. The opinion on the original hearing is reported in 81 Fed. 454.</p>

The defendant is an assessment life insurance order, chartered in the state of Maryland, and having a supreme conclave in that state and subordinate conclaves located throughout various other states, one of which is in Chattanooga, Tenn. Plaintiff’s husband was a member of the Chattanooga Conclave, and held a certificate for if,3,000, payable, in the event of his death and good standing in the order at the time, to his wife, the plaintiff.

District of Washington. The nature of this action, the general character of the evidence introduced, and the principles 'of law involved therein, are set forth in the charge of the court to the jury, as follows: “Tiie plaintiff in this case, Mr. Richard T. Cox, sues, as receiver of the First National Bank of Arlington, Oregon, to recover from the defendant, J. L. Robinson, the amount of a judgment which the bank obtained against a man named N. Cecil.

Suit for the breach of certain conditions of a postmaster’s bond, in failing to account for and pay over to the post-office department the sum of $9,399.88. Answer that the money was embezzled by a clerk who held his office under civil service laws. Demurrer to answer.

This was an action at law by Louis Feurer against Olive J. Stewart, and was commenced by an attachment against the defendant's property. The case is now heard on a motion to dissolve the attachment.

<p>1. JURISDICTION — AMOUNT IN CONTROVERSY.</p> <p>Jurisdiction of an action for conversion is not lost by reason of the finding' that the goods were worth less than the jurisdictional amount, where there is no reason to believe that the value was overstated in the declaration for the purpose of conferring- jurisdiction.</p> <p>2. Conversion — Assignment for Creditors.</p> <p>An action for conversion is maintainable though the defendant came into possession and disposed of the property as an assignee for the benefit of creditors under the Wisconsin statute, as property in the hands of an as-signee under that statute is not in the custody of the law or of á court.</p> <p>3. Same — Appeal-Scope oe Review.</p> <p>Questions involving an inquiry into the correctness of the finding of facts cannot be considered on writ of error.</p>

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

<p>This is an action at law by Phillip Tillinghast, as receiver of the Columbia National Bank, against F. L. Carr, upon a promissory note for $1,750. In his answer the defendant pleads want of consideration as a defense to the action. There was a trial by the court, a jury being waived.</p>

<p>Opinion on Petition for Rehearing.</p>

<p>1. Indictment — Violation of Interstate Commerce Act — Description of Offense.</p> <p>An indictment under section 2 of the interstate commerce act, which fully and amply alleges all the details of time, place, distance, amount, and kind of freight transported for A., and then charges that the service was for a less compensation than was received from B. “for doing for him a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions,” sufficiently describes the services rendered for B.</p> <p>2. Receiver of Railroad — Criminal Liability — -Failure to Observe Joint Rate.</p> <p>A receiver not being bound to continue contracts made before his appointment, is not criminally liable, under section 6 of the interstate commerce act, for the violation of a joint tariff previously established by the railroad company of which he is receiver and another company, and which he has not ratified, adopted, or recognized in any way.</p>

<p>Oleomargarine — Use in National Soldiers’ Home — Power op State to Regulate,</p> <p>The governor of the soldiers’ home at Dayton, Ohio, in serving to the inmates, as food, oleomargarine furnished by the government, is not subject to the law of the state prescribing the manner in which oleomargarine shall be used in eating houses, because his act is that of the government of the United States, within its constitutional powers, and wholly beyond the control or regulation of the legislature of the state.</p>

Applications by the Southern Pacific Company for a review, under section 15 of the customs administrative act (Act June 10, 1890; 26 Stat. 131), of the decision of the board of United States general appraisers relative to the classification for duty of two importations of creosote merchandise. Both petitions were heard together.

<p>Copyright — Subjects op Copyright — Letter Files.</p> <p>A system of indexes, constituting a letter file, being designed for use, and not for conveying information, is not a proper subject of copyright. 78 Fed. 479, affirmed.</p>

This is an appeal by the J. L. Mott Iron Works from a decree sustaining tbe demurrer to its amended bill of complaint, and dismissing the bill for want of equity.

<p>1. Trade-Marks — Xneiuxgemkxt—-Deception or Public.</p> <p>Where the name, portrait, and i'ac simile signature of another are employed without his consent and against liis will, and are so assumed with a view to deceive the public into the belief that the product marketed and sold was prepared under his supervision, and offered to the public with his sanction, an injunction will be granted.</p> <p>2. Same — How Acquired — Period of Use.</p> <p>It is not essential to a valid trade-mark that its use shall have been Ions continued, or that the article on which it is used should he widely known, or should have attained great reputation. It is sufficient if the article with the mark upon it has become actually a vendible article in the market, with intent by the proprietor to continue its production and sale.</p> <p>3. Same — Border of Proof.</p> <p>Where an alleged infringer in America, who used marks unquestionably belonging to another in foreign countries, claims to have anticipated him in the use of the mark in the American market, such alleged infringer should show with accuracy and detail the times of its earlier sales, and in the absence of such proof the court will not be overeritieal in respect to the /late of the first -occupancy of the American market hy the proprietor of the genuine article.</p>

This is an appeal from a decree which dismissed a bill brought by Mast, Foos & Co., a corporation, for the infringement by the appellee, the Demp-ster Mill Manufacturing Company, a corporation, of letters patent No. 433.531. issued on August 5, 1800, to the appellant, as the assignee of Samuel W. Martin, for improvements in windmills. 71 Fed. 701. Here are copies of the drawings and specification of this patent: “(No Model.) . S. W. Martin. “Windmill. “No. 433,531.

<p>Fedekal Jurisdiction — Suit in Wrons District — General Appearance— Motion to Dismiss.</p> <p>The filing of a general appearance in a federal court in an action commenced by service of summons alone is no waiver of defendant's right to move to dismiss for want of jurisdiction, when, on the subsequent service of the complaint, it for the first time appears that the only ground of federal jurisdiction is diverse citizenship, and that the action is brought in the wrong district.</p>

<p>1. Process — Service on Foreign Corporation — Return as Evidence.</p> <p>A return on a summons against a nonresident corporation, showing service upon a person stated therein to he agent of such corporation, is prima facie evidence of a good service under the statutes of Pennsylvania.</p> <p>2. Removal of Causes — Status of Cause After Removal — Rulings- of State Court.</p> <p>Where a nonresident defendant, sued in a state court, invokes the judgment of that court by a motion to set aside the service of the summons, he is concluded by the court’s decision, and cannot renew the motion in the federal court, after removing- the cause, on substantially the same evidence.</p>

<p>Decree Dismissing Bill in Equity — When not a Bar to Hew Suit.</p> <p>A decree dismissing a suit in equity without a hearing, or determination of the merits, whether made wilh or without the consent of the complainant, is not a bar to a new suit.</p>

<p>Admirsior of States — -Transfer of Pending Cases — Waiver of Rtght.</p> <p>The Utah enabling-act authorized the constitutional convention to provide for the transfer of pending cases to the proper state and federal courts. Accordingly it was provided in the state constitution that, in cases of concurrent state and federal jurisdiction, a transfer to the federal court should be made upon motion and bond, in default whereof the case should proceed in the proper state court. Held, that where neither party sought a transfer, but after final judgment in a territorial court one of them look an appeal to tlie state supreme court, and the other joined in submitting it there for -decision, this constituted an election to proceed in the state courts, and precluded the defendant from transferring the case to the federal court after a reversal and remand for a new trial.</p>

<p>. This was a foreclosure suit, instituted by the Farmers’ Loan & Trust Company, as trustee, against the Cape Fear & Yadkin Valley Railway Company and others.</p>

<p>Reformation of Deed — Mutual Mistake.</p> <p>Tlie owners of a tract of mineral land negotiated an advantageous sale of the same, but, before it was concluded, the negotiations were suspended, in consequence of notice given the purchasers by two other persons that they claimed an interest in the mineral. The vendors, in order to clear their title and consummate the sale, procured deeds from the claimants, paying therefor a sum approximating 840,000. Formerly the two claimants had held their interests in common, but prior to the execution of such deeds they had partitioned the same by agreement, and then held in severalty. The deed of one of the claimants described the entire tract, purporting to convey an'undivided one-half of the mineral therein, with a warranty of title. Twenty years afterwards such grantor brought suit for partition, claiming .to still be the owner of an undivided half interest in the mineral in the portion held by him in severalty when the deed was made. Held, that the circumstances inducing the purchase, and under which it was made, clearly evidence that it was the intention of the parties to purchase and to sell the entire interest of the claimants, and that the holders under sucli deed were entitled to its reformation on the ground of mutual mistake.</p>

<p>1. Street Railroads — New Jersey Statutes — Illegal Boots — Innocent Holder — Claim Piled with Receiver.</p> <p>Under the New Jersey statute providing for the incorporation and regulation of street-railway companies, approved April 6, 1886, which provides, among other things, that no company incorporated under the act can Begin to build its road until the whole amount of its capital stock has been subscribed for by responsible parties, and 50 per cent, of each share has been paid in cash, that, bonds secured by mortgage can only be issued to the amount of the capital stock, and for the purpose of aiding’in tlie construction of tlie road, such bonds issued before tlie whole amount of the capital stock of the company lias been paid in cash, and expended in the construction of the road, are illegal, and are void, except so far as they are held by bona iide purchasers for value without notice, but, where so held, constitute a valid claim against tlie property, in the hands of a receiver, for the amount actually received therefor by the company.</p> <p>2. Same — Illegal Construction Contract.</p> <p>A contract by which certain directors of a street-railway company, acting in tlie name of a third person, who is a mere dummy, are to construct the road, and divide between them the balance of the stock and bonds not required therefor, is fraudulent, and bonds issued pursuant thereto are void.</p> <p>8. Same — Ultra Vires Contracts.</p> <p>A contract by which a street-railway company, in order to procure a right of way over streets running through lands owned by a land, company, guarantied that certain lots of the laud company would, become worth a certain price, and agreed to pay the difference between such price and wlrf the lots would bring at auction, is not ultra vires.</p> <p>4. Insolvent Corporation — Right to an Accounting — General Creditor.</p> <p>General creditors of an insolvent corporation, who have proved their claims, have an equitable lieu on the assets in the hands of a receiver, and, on tlie refusal of the receiver to enforce the lien, they have the same right as the receiver to require ail accounting of the amount due on the mortgage bonds.</p>

In the matter of the petition of the Johns Hopkins University in reference to the status of the preferred stock of the .Baltimore & Ohio Railroad Company, issued under the Maryland act of 1885 (chapter 395).

In Equity. The complainant filed his bill against the defendant Charles U. Gordon, as postmaster of the city of Chicago, and John M. Hubbard, as assistant postmaster, and charges: That in the year 1893 he was appointed postmaster at Englewood, a post office then existing in the county of Cook, state of Illinois.

<p>1. EVIDENCE — UNACKNOWLEDGED AGREEMENTS RELATING TO SALES OB LAND.</p> <p>Tiie Wisconsin statute (Laivs 3891, e. 288) declares that all unacknowledged agreements relating to saps of land which have been recorded in the register's office for 20 years may be proved by certified copies, with the same effect as if the instrument * had been acknowledged. The act, however, provides that it shall not affect pending suits. Held, that the statute was applicable to a suit brought after its passage to quiet title, and incidentally to restrain an ejectment suit, though the latter suit was instituted prior to the enactment.</p> <p>9. Powers of Attorney — Deeds.</p> <p>Four persons having taken steps to procure title, as tenants in common, to a section of land, one of them executed a power of attorney authorizing the attorney to convey an undivided one-fourth of such section. By an error or oversight of the land office, title was made to each of a quarter section in severalty. Thereafter each of the grantees made conveyances of their quarter sections to a third party, who then reconveyed to each of them an nndivihed one-fourth interest in the whole section. Thereafter the attorney, under the power of attorney, executed a conveyance of an undivided one-fourth interest in the entire section. Held, that ibis was an effectual conveyance of such undivided interest, as it carried out the clear intent of the parties at the time it was given.</p> <p>3. Same.</p> <p>A recorded power of attorney to convey certain lands remains in force, as to purchasers in good faith, without notice, from the attorney, though the grantor himself in the meantime convoyé the same lands by a deed which remains unrecorded.</p> <p>4. Conflicting Deeds — Priority or Record — Burden of Proob.</p> <p>A junior purchaser, whose deed is first recorded, is presumptively a bona fide purchaser for value, without notice, and the burden of proof to the contrary rests on the senior purchaser, whose deed has not been recorded.</p> <p>5. Conveyance ry Tenant in Common ob Undivided Acres.</p> <p>A deed by a. tenant in common conveying a, specified number of acres, undivided, in a tract described, is not void for uncertainty, but. is an effectual conveyance of such a proportion of the, tract as Hie whole number of acres conveyed hears to the whole number of acres in the tract, and entitles the grantee' to all the rights and remedies incident to the tenancy in common. And, whore the tract borders upon a river, such a conveyance includes a proportional interest in the bed of the stream.</p>

<p>Receivers — Appointment and Removal — Ancillary Appointment — Nonres-idence.</p> <p>A receiver appointed by a federal court in New Jersey for a New Jersey manufacturing corporation whose plant and business are located in Ohio, and subsequently appointed on the commencement of an ancillary suit, by a federal court in Ohio, will not be removed by the latter court on the application of mortgage creditors who have subsequently become parties, merely cm the ground that he is a nonresident of Ohio, where it appears that he is a fit person to manage the business, and intends to giye it his personal supervision.</p>

<p>1. Equitable Assignment — What Constitutes.</p> <p>One procuring a loan from an agent of the lender for the purpose of discharging a debt of the same amount due by him to a third party, on executing the note and mortgage verbally directed the agent to pay over the money, when received from his principals, to such third party; and the latter, on learning of the arrangement, assented to it. Hold, that this was an equitable assignment of the fund.</p> <p>•2. Laches.</p> <p>Plaintiff, through one T., made a loan to G., secured by a trust deed. When the loan became due T., who was an agent of certain eastern money lenders, engaged to procure for G. a loan from them with which to pay oft' plaintiff’s loan. T., therefore, who was the trustee in plaintiff’s trust deed, procured from him the note, in order that he might release the trust deed, so that G. could make a new mortgage to the new lenders. The trust deed was accordingly released of record, and a new note and trust deed executed by G., and forwarded by T. to his principals. The latter, instead of forwarding the full $0,000, the amount of the new loan, rendered to T. a statement showing that he owed them $2,600, consisting of two items of $1,000 and $1,000 each, and .remitted him the balance, with directions to apply it, together with the $2,6.00, upon the loan. T. in fact owed them only $1,000, but he did not make any objection to the statement. G. had directed him, on receiving the amount of the loan from his principals, to pay it over to plaintiff; but T., without the knowledge either of his principals or of G., applied the money to his own use, continuing to pay the interest to plaintiff as if the same were coming from G., and leaving plaintiff to suppose that G. had not yet obtained the now loan. Plaintiff, although he had surrendered his note, made no effort to find out the real reason why he did not receive his money, and did not even examine the county records to discover whether his trust deed had been released. Some two years later, T. became a fugitive, and plaintiff, learning the true state of affairs, sued the eastern money lenders for the amount which they had charged against T. in the account rendered to him, and which they liad not forwarded to be applied on the new loan. Held that, in view of plaintiff’s ladies, he, rather than defendants, must suffer the loss to the extent of the $1,600 actually due from T. to defendants wlien they rendered him the account, hut that defendants Mere liable lor the ¡51,000, which in fact T. did not owe them.</p>

<p>1. DIVORCE — SUBSEQUENT AwAKD OF ALIMONY — JURISDICTION.</p> <p>A decree of divorce was entered toy a circuit court of South Dakota in favor of plaintiff, a resident of that state, against defendant, a resident of Massachusetts; the court having no jurisdiction of defendant. Defendant afterwards married, and subsequently, on an amended hill filed by plaintiff, by leave of the court, without notice or attempted notice to the defendant, a decree was entered awarding plaintiff alimony. Held, that such decree was void, and an action based thereon to recover the alimony could not be maintained.</p> <p>2. Same — Effect of Marriage of Dependant.</p> <p>Where, in accordance with the laws of the state, a court renders a decree of divorce in favor of one of its own residents against a resident of another state without acquiring jurisdiction over the latter, his subsequent marriage will not prevent him. either as a ratification, waiver, or estoppel, from denying the jurisdiction or authority of the court to open the decree and award alimony against him.</p>

This action is in assumpsit, and was instituted by tlie plaintiff in error, .Tolm S. Tilomas, i’or tlie use of Norman II. Camp, receiver, against tlie United Firemen’s Insurance Company, the defendant in error, to recover for a. loss by fire under a policy of insurance issued by the plaintiff in error to tlie amount of $2,500 upon certain household furniture.

<p>1. Bills and Notes — Pension Certificate.</p> <p>A pension certificate or check drawn to the order of a person then deceased is absolutely void.</p> <p>3. Banks and Banking — Payment of Void Pension Ciieok.</p> <p>A pension check was drawn, in the regular course of business, and without knowledge of the facts, to the order of a deceased person. The individual who received if forged the payee's signature on the bach, and presented it to the defendant bank, from which it passed, for collection, through two other banks, which in turn, after collection, remitted the proceeds until they reached the defendant, which paid them over to the alleged owner. From the time when the government subsequently discovered the facts, one of the intermediate banks was in voluntary liquidation, and the other was insolvent, and its assets were in the hands of a receiver, and the alleged owner of the note was insolvent. Held, that the defendant was liable to the government for the reimbursement of the amount collected, and that the government ivas not chargeable with laches.</p>

<p>Limitation op Actions — Revivor op Judgments.</p> <p>Where the legislature passes a statute of limitation barring the revivor of judgments by scire facias after the lapse of ten years from their rendition, and provides further that the act shall take effect and be in force from and after one year from the date of its passage, luid, that the act applies to existing as well as future judgments, and that past judgments, which have been rendered more than ten years, are barred unless the scire facias is issued within one year from the date of the passage of the act.</p>

<p>1. District Attorneys — Fees in Montana.</p> <p>By Rev. St. § 824, district attorneys are allowed $20 in each case tried before a jury. Section 837 provides tliat “district attorneys and marshals for the district of Oregon and Nevada shall be entitled to receive double fees.” Supp. Rev. St. p. 767, § 16, provides that “district attorneys in the state of Idaho shall be allowed the same fees as those allowed in the district of Oregon.” And by 26 Stat. 047, and 27 Stat. 223, 714, making appropriations for legislative, executive, and .-judicial expenses of the government for the fiscal years ending June 30th in the years 1S02, 1893, and 1894, it is provided that the marshals, district attorneys, and clerks of the circuit and district courts of the districts of Washington, Montana, and North Dakota shall receive the fees and compensation allowed by law to like officers performing similar duties in the districts of Oregon and Idaho. Held, that for each case tried by him before a .jury, in the circuit court for the district of Montana during the period affected by the last-named acts, the district attorney was entitled to a fee of $40.</p> <p>Si. Same — Fees in .Jury Cases.</p> <p>Rev. St. § 824, allowing a specified fee to United States district attorneys for each case “tried before a jury,” includes cases which are tried before a jury, although there is a mistrial, and no verdict is rendered.</p> <p>I. Same — Criminal Cases.</p> <p>Rey. St. § 824, provides that when an indictment for a crime is tried before a jury, and a conviction had, the district attorney may be allowed a counsel fee in proportion to the importance and difficulty of the case, not exceeding §30. Held, that in eases covered by this provision, and also by Rev. St. § 837, Supp. Rev. St. p. 767,116, 26 Stat. 947, and 27 Stat. 223, 714, providing for the allowance of “double fees” in certain cases, the court may fix the “counsel fee” at $60.</p> <p>4, Same — Fees por Examining' Land Titles.</p> <p>Rev. St. § 355, prohibits the expenditure of money upon any site or land purchased by the United States for the purpose of erecting thereon any public building until the written opinion of the attorney general shall be had in favor of the validity of the title, and requires that the district attorneys of the United States, upon the application of the attorney general, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. Section 189 provides that “no head of a department shall employ attorneys or counsel at the expense of the United States, but, when in need of counsel or advice, shall call upon the department of justice, the officers of which shall attend to the same.” Supp. Rev. St. p. 18, prohibits compensation or perquisites for court officers of the government beyond salary and statutory compensation, “provided this shall not be construed to prevent the employment and payment by the department of justice of district attorneys as now allowed by law for services not covered by their salaries or fees.” Held, that a district attorney employed by the attorney general to investigate the title to land authorized to be purchased by the United States, and to make an abstract of the title, is entitled to a reasonable compensation for his services and expenses, over and above his regular salary.</p> <p>5. Same — Action for Fees — Rejection by Accounting Officers — Evidence.</p> <p>In an action by a United States district attorney against the United States to recover the amount of a fee allowed by statute for a certain trial before a jury, the allegations of the complaint that the claim had been disallowed by the proper accounting officer, and that it remained unpaid, are sufficiently established prima facie by proof that the claim had been duly presented, and payment refused; and, if the defendant relies on subsequent allowance and payment, it must prove the same.</p>

<p>This was an application by Robert D. May for a writ of habeas corpus.</p>

<p>1. Patents — Invention—Construction of Claims — Lawn Sprinklers.</p> <p>The conception of a rotary lawn sprinkler, having concave wings, into which the water was delivered from one side, so as to be distributed over a semicircular area on one side of the distributing point, whereby the distribution could be made from a point near a walk, fence, or building without wetting the same, while not an invention of a primary character, yet disclosed sufficient ingenuity to prevent the application of technical rules intended to narrow the scope of patents of-doubtful validity, or to impair or destroy them.</p> <p>2. Same — Construction of Claims — Reference Letters.</p> <p>The use of letters in a claim to designate its elements does not prevent its liberal construction.</p> <p>3. Same — Infringement—Duplication of Parts.</p> <p>The mere duplication of parts to produce the same result does not prevent infringement, even though it may involve tributary invention.</p> <p>4. Same — Lawn Sprinklers.</p> <p>The Bonnette patent, No. 4(11,415, for a lawn sprinkler having devices for distributing the water over a semicircular area on one side of the distributing point, construed, and held, valid and infringed as to the third claim.</p>

<p>1. Evidence in Patent Cases— Appeal.</p> <p>A party who has caused a patent to be identified by a witness, but has failed to offer it in evidence, and who bas objected to its consideration on appeal when desired by the opposite party, cannot thereafter have it considered by the court to his advantage.</p> <p>2. Patents — Construction of Claims.</p> <p>In the case of a novel and useful invention, the claims, though unskillfully drawn, should, if possible, receive a construction which will uphold the patentee’s right to his real invention.</p> <p>3. Same — Force Pumps.</p> <p>In a patent for an improvement in double-acting force pumps, whereby the plunger and valve may be withdrawn for repairs without removing the rest of the pump from its fixed position, a statement in the specifications that the invention relates to the class of pumps “which are adapted to be suspended within a well or cistern,” does not exclude pumps used in tubular and driven wells.</p> <p>4.' Same — Contribctop.y Infringement.</p> <p>One who, without authority, makes and sells double-acting pumps like those déscribed in a patent, except that he does not make the lower cylinder, so that his pumps are inoperative unless used with that part, is guilty of contributory infringement.</p> <p>5. Same — Force Pumps.</p> <p>The Vanduzen patent, No. 241,573, for an improvement in double-acting force pumps, construed, and ¡held valid and infringed.</p>

This was a suit in equity by the Soeieté Fabriques de Produits Chimiques de Thann et de Mulhouse against the Franco-American Trading Company and others to enjoin alleged infringement of a patent. The cause was heard on motion for a preliminary injunction.

This was a suit in equity by the Paul Boynton Company against the Morris Chute Company and others, for infringement of certain patents for improvements in coaster's or inclined pleasure railways.

<p>This was a suit in equity by Charles lioehr against Watson H. Bliss & Sons for alleged infringement of a patent for improved interior door or window frames. The cause was heard on a motion for preliminary injunction.</p>

<p>1, PATENTS — Infringement Suits — Pleading—Dental of Utility.</p> <p>A statement in a verified answer that complainant’s invention is used only for gambling purposes in saloons and barrooms, and cannot be used for any other purpose, is sufficient evidence of want of utility, in the absence of testimony supporting the patent, to overcome the prima facie ease made by the patent itself.</p> <p>2. Same — Coin-Controlled Apparatus.</p> <p>The Sehultze patents, Nos. 502,891 and 514,8164, for improvements in coin-controlled apparatus, held invalid for want of utility.</p>

This was a suit íd equity by Charles Heap against the Tremont and Suffolk Mills, for alleged infringement of letters patent No. 377,151, issued January 31, 1888, to Henry Nicholas Grosselin, Fils, for a machine for napping cloth. The circuit court dismissed the bill (75 Fed. 406), and the complainant has appealed.

This was a suit in equity by the New York Filter Manufacturing Company against the Elmira Waterworks Company and others for alleged infringement of letters patent No. 293,740, issued February 19, 1884, to Isaiah S. Hyatt, for an improved method 'of clarifying water.

This was a suit in equity by the Thomson-IIouston Electric Company against the Hbosiek Hail way Company for alleged infringement of a. patent for traveling contacts for electric railways. The circuit court entered an order granting a preliminary injunction, and the defendant has appealed ,,,, , ,

This was a suit by the Morgan Envelope Company against D. S. Walton and others, constituting the firm of D. S. Walton & Co., to enjoin alleged unfair competition in business.

These were libels filed respectively by the Botany Worsted Mills and by Henry P. Winter and others against James Knott, owner of the Portuguese Prince, to recover for damage to a cargo of wool shipped from Pernambuco lo New York, such damage having occurred by the drainage forward of wet sugar stowed next aft of the wool, and separated therefrom by a temporary bulkhead. The district court entered a decree for the libelants (76 Fed. 58.2), and the respondent has appealed. ' «

<p>1. Generax, Average— Negligent Stranding — Harter Act.</p> <p>Under section 3 of tlie Harter act of February 13, 1893, providing that if the ship owner shall exercise due diligence to make the vessel seawortliy. neither the vessel nor her owner shall be responsible for faults or errors in her navigation or management, the ship owner has a right to contribution in general average for sacrifices made to save vessel and cargo stranded, although the stranding occurred through the negligence of the officers of the vessel.</p> <p>2. Same — Allowance op Gross Freight on Jettisoned Goods.</p> <p>In a general average adjustment to be stated “according to the established usages and laws” of the port of New York, the allowance of freight upon jettisoned goods is the full freight as per bill of lading. The recent practice of the English adjusters to allow' only net freight in such cases has not been .adopted in New York.</p>

<p>Collision — Horn’s Hook — Rounding Bend — Crossing Lines of Traffic — Signals not Answered — Navigation Obscured — Co-operation by Privileged Vessel.</p> <p>At Horn’s Hook the channel of the East river diverges five points to the left up the Harlem river, and one-half point to the right to Hell Gate. Busy lines of traffic there cross each o'ther, and the high ground of Horn’s Hook prevents vessels that come down the Harlem river near the shore, and cross the course of those coming up, from being seen, on the flood tide, In time for safe maneuvers to avoid collision. Held that, whether inspectors5 rulo 5 is strictly applicable to the case or not, the prevailing practice and reasonable prudence require that signals be given under such circumstances, indicating the presence of vessels, before they come in sight of each other; that any signals given should be noticed and properly answered; that No. 8, in this case, coming down the Harlem river heavily incumbered, was in fault for unnecessarily keeping close to the shore, and unduly hiding her approach, and also for undertaking the hazardous experiment of crossing the river and stopping between two tows, requiring the one to pass ahead of her, and the other astern, without a common understanding by signals from both; that the W. was also in fault for not observing No. <S’s signals, nor co-operating with her, as she might easily have done, to avoid the collision, when the situation of No. 8 became desperate.</p>

<p>1. Damage to Cargo — Absence of Sounding Pipes — Equivalent Provisions —Seaworthiness.</p> <p>In. a convertible steamer, built to carry fluids in bulk, as well as dry and perishable cargoes, a pipe line ran forward from the pump room, in the stern of the vessel, into and through the separated cargo compartments, with an offset from the main line in each, which could be opened and closed by a Kingston valve, operated by a spindle from the deck. Provision was made for testing these valves, and for ascertaining the presence of' water in any compartment, and for removing it promptly, by means of the pumps and pipe line. No deck sounding pipes were fitted. Damage having occurred by water entering a compartment from the pipe line, held, that the provisions made were adequate to prevent damage to dry cargo from water ballast in an adjoining tank, if properly managed, and that the vessel was not unseaworthy by reason of the absence of sounding pipes.</p> <p>2. Same — I-Iarter Act — Fault in Management.</p> <p>The steamer sailed with her No. 2 tank full of water for ballast, and with the neighboring compartments full of coffee in bags. During the voyage this water ballast was removed through the main pipe line, but, owing to the failure to have the valve in the offset leading- into No. 3 tank closed, water entered there, damaging the coffee. Those in charge omitted to test the valve by moans of the pumps, or to count the turns of the spindle which opened and closed the valve, before using the pipe line to discharge the ballast. These tests would have shown that the valve was not shut. Held, that the damage arose from neglect in the “management of the ship,” within the third section of the Harter act, and that the steamer was not liable therefor. The Silvia, 64 Fed. 607, Id., 15 O. 0. A. 362, 68 Fed. 230, and The Sandfield, 79 -Fed. 371, followed and applied.</p> <p>3.- Same — Alleged Obstruction of Valve on Sailing — Seaworthiness.</p> <p>On the evidence, held, that it did not appear, as contended, that the valve was obstructed by pieces of wood at the outset of the voyage. Held, further, that such alleged obstruction, if it existed, would not have amoiint-ed' to unseaworthiness, because accidental and temporary in character, and certain to be removed by application of the pumping tests prescribed by the shipowners’ written instructions.</p> <p>4. Same — Stowage—Proximate Oause of Damage — Seaworthiness—Fault in ■ Management. . ■.</p> <p>Held, that the vessel was not unseaworthy in respect of her cargo by reason of the stowage of coffee in a compartment adjoining that in which water ballast was carried; that the pipe line, valve, and pumping arrangements were adequate to have prevented the damage, if properly managed; and that, therefore, the loss must be attributed to improper “management," and not to unseaworthiness.</p>

<p>• 1. Collision — Steam and Sail — Negligent Lookout — Change of Course-Sails Aback — Meager Testimony.</p> <p>The steamer O., going at tlie rate of 14 knots, on a course S. W. x 8.. % S., in a clear night at sea, came in collision with the hark S., previously closehauled, on a course E. N. E., on the starboard, tack, going ;i-4 knots. The bark’s red light was seen a little on the O.’s port bow from one to three minutes before collision; the O. ported., but just before collision saw the bark’s green light,, and the port bow of the bark struck the steamer's starboard side aft of the bridge; the bark shortly before had been taken aback, and while aback the steamer’s masthead light was seen on the bark’s starboard beam; the steamer’s colored lights were not noticed; the bark regained her course, either by luffing or by wearing round, and a hail “Light IIo” was given within one minute before collision. Held both in fault; the steamer for negligent lookout and lack of timely measures; the bark for careless management and change of course. •</p> <p>2. Testimony Taken in Perpetuam Rei Mkmoriaji — Section 80S, Rey. St. — ■ Service op Process Rkckssary. _</p> <p>_ Depositions in perpetuam rei memoriam muter section HG8, Rev. St., cannot lie taken ex parte l)y a proceeding in enurcy without any service of process upon tlie defendants in interest, tliongli tliey are out of tlie country. Buck depositions, taken before tlie libel was filed, excluded. Tlie ciiancery practice stated.</p>

<p>1. Jurisdiction oi’ Federal Courts — Removal of Officers — Executive Functions.</p> <p>The national courts cannot rightfully interfere -with executive action in any ease where an executive officer is authorized to exercise judgment or discretion in the performance of an official act.</p> <p>2. Equity Jurisdiction — Interference with Executive Actios.</p> <p>Courts of equity concern themselves only with matters of property and the maintenance of civil rights, and have no jurisdiction in matters of an executive or political nature; nor do they interfere with the duties of any department of the government except under special circumstances, and then only when necessary to the protection of rights of property.</p> <p>8. Officers — Power of Removal.</p> <p>The power to remove the incumbent of an office is incident to the power of appointment.</p> <p>4. Deputy Marshals — Power of Marshal to Remove.</p> <p>An office deputy of a United States marshal lias no vested right of property in his office or employment, under the act of May 28, 18ÍM1. He is employed by the marshal, and his tenure of office terminates with the expiration of the marshal’s official term; and a court of equity ha.s no jurisdiction to restrain the marshal from removing him.</p> <p>5. Same — Civil Service Law — Executive Rules.</p> <p>The rules promulgated by the president which place office deputies in the marshal's office in the classified civil service list are not a statute, nor have they ihe force of law. They are merely executive rulos and regulations by authority of law, and are effective, if at all, only for the internal control and government of the civil service and the executive departments. The courts of equity have no jurisdiction or authority to enforce them.</p>

<p>Practice — Bond on Appeal — DrsMrssAL of Appeal — Sureties Liable.</p> <p>In December, 1882, the defendant, on appeal from a judgment in per-sonam, executed a bond with sureties “to prosecute such appeal with effect and pay all damages and costs awarded against him as such appellant,” etc. Alter various vicissitudes, including the appellant’s bankruptcy and assignment, the death of the proctors on each side, and the appellant’s death in 1890, no return of the record to the circuit court having been made, the respondent on motion procured a dismissal of the appeal, and the order entered in the circuit court directed that “the cause be remitted to the district court for final proceedings.” To a motion for summary judgment thereupon against the sureties on the bond in the district court, it was objected that the bond did not provide for a payment by the sureties in case oí dismissal! that summary judgment upon the bond could not be had, or if so, the libelant’s ladies should preclude any recovery. Held: (1) That the provisions in tlie condition of the bond were distinct, and that the bond became operative against the sureties upon the failure of the appellant to “prosecute the appeal with effect” by procuring a return of the record as required by Ihe rules; (2) that upon Ihe remittitur filed, the district court was the appropriate one to enforce the bond; and that the admiralty practice warrants a summary proceeding against the sureties in such cases by order to show cause, upon which every legal and equitable defense available to the sureties can be examined and adjudged as fully as upon a plenary action; (!?) that on its appearing that there had been no part, payment, the laches wore equal on each side, and did not debar summary proceedings on the judgment.</p>

<p>Appeals from the Circuit Court of the United States for the East-turn District of Tennessee.</p> <p>Tn 1885, John H. Parker, of Cleveland, Bradley county, Tenn., was received as a member of a co-operative and assessment insurance association, incor-pora tod under chapter 175 of the Haws of 1883 of the state of New York, under the corporate name of the Mutual Reserve Fund Hire Association, and having its principal office in the city ol' New York. The policy or certificate of insurance was for the sum of 810,000, and was payable to Mary K. Parker, wife of the insured, in January, 1890, this policy, as we shall hereafter designate it, was assigned by a writing indorsed thereon to the Cleveland Woolen Mills, a corporation of the state of Tennessee, for a recited consideration of $10,000, though the real intent of the assignment was to secure 1o the Woolen Mills Company a large sum of money then due and owing to it by the assured. This assignment was by both Parker and liis wife, and the genuine signatures of both appear thereon. On the 6th day of March, 1891, the association indorsed its consent to this assignment. Parker continued thereafter to pay the assessments made upon him until March 3. 1893, when a default occurred by a failure to pay mortuary call No. 66, which was due and payable on that day. This default appears to have been accidental, inasmuch as a fund was kept on deposit in a bank at Cleveland for the purpose of meeting such calls. By oversight, payment of this assessment ivas omiued until March 18, 1893, when a draft for the necessary amount ivas remitted by the Cleveland National Bank, in a letter stating that money hart been deposited with the bank “to pay premium before due, but was overlooked at proper date.” To this letter from the bank, the association replied, by letter addressed to John H. Parker, as follows: “Dear Sir: We have to acknowledge receipt at: this office of your remittance of $25.70, to be applied upon your policy 27,512. under call 66, and that of Mrs. Mary K. Parker, 88,-772. amounting to $10.65. This amount has been placed in the suspense account by reason of the fact that the remittance was not in transit until March 18th, and the thirty days allowed for the payment of call expired March 3d. We will require satisfactory application for reinstatement aud certificate of health, blank for which purpose we inclose you herewith. In the meantime we are holding your remittance in suspense account, awaiting this information, or the money will be returned to you as you direct.” Mr. Parker’s health had failed when this default occurred, and he declined to submit to a medical examination; but, as future assessments were made, he ’caused remittances to be made by his banker for the purpose of meeting them. Gall No. 67 was made March 13, 1893; No. 08, May 1, 1893; No. 69, July 19.’3893; and No. 70, September 16, 1893. In response to letters remitting funds for their payment, replies were received stating that the money had been placed “in suspense account,” with that of call 66, and was held subject to Parker’s order "or satisfactory medical examination.” On November 10, 3893, a draft covering these four remittance's was remitted by express to the Cleveland National Bank, which that bank declined to receive; and, on the same day. Mr. Parker was notified of this return of his money, and that the time had expired within which he might be reinstated on metlical examination. The Cleveland Woolen Mills, becoming aware of the claim of the association that the policy had lapsed by nonpayment of call No. 66. filed an original bill in the state chancery court for the county of Bradley, October 1, 1891. to which it made defendants the said John II. Parker and wife, Mary K. Parker, and the Mutual Reserve Fund Life Association, for the purpose of having said policy reinstated, and its rights as assignee protected. This bill averred ’that when it applied, March 6, 1891, to obtain the consent of said association to the assignment of said policy, it also asked that notices of assessments, as made from time to time, he sent to it, that it might arrange for the payment thereof in case the assured was unable to make such payments; that the association declined to do this, but agreed that, if Parker should make default, notice should at once be given the assignee, that it might pay the call and avoid forfeiture. The bill further averred that no notice of the failure of Parker to pay call No. 66 had been given according to this agreement, and that the company had fraudulently concealed from the complainant all knowledge of Parker’s default, and was now' claiming- that the policy had lapsed. The bill tendered payment of any assessments not covered by the remittances theretofore made by the assured. At this stage of the cause, the Mutual Reserve Fund Rife Association appeared and removed the suit to the circuit court of the United States. Before answers were filed, John H. Parker died; whereupon the Woolen Mills Company filed an amended and supplemental bill, averring- this fact, and claiming- payment of the policy. Mrs. Parker answered, and filed a cross bill against the Woolen Mills Company and the Insurance Association, setting out the facts heretofore stated, and averring that her signature and consent to the assignment of the policy had been obtained from her by the undue influence and coercion- of her husband, and -praying that the said Woolen Mills Company might be decreed to hold the proceeds of the policy, when collected, in trust for her use and benefit.. Upon a final hearing, the circuit court decreed in favor of the Woolen Mills Company, and ordered that any surplus after the payment of the debt due by the assured to it should be held for and paid over to Mrs. Parker, Prom this decree both the Mutual Reserve Fund Uife Association and Mrs. Mary K. Parker have appealed, and separately assigned error.</p>

This was a suit in equity by the Union Mill & Mining Company against George Warren and others to quiet title to certain lands in Nevada. The cause was heard on demurrer to the bill.

<p>Injunction- — Threatened Trespass — Scm’ioiency of Bum.</p> <p>A bill to enjoin tlie commission of a threatened trespass is sufficient, without alleging any overt act towards the invasion or destruction of complainant’s rights, if it alleges threats to commit the trespass, and that it will be committed unless enjoined, and will cause irreparable injury to complainant.</p>

Appeals from the Circuit Court of tlie United States for tlie South.ern District of Illinois. These appeals present the question whether the amount allowed the special master for his' service in tlie sale of tlie railway in question was excessive.

The bill in this case is presented under the act of congress of July 2,1890 (26 Stab. 209).

<p>1. Violation of Injunction — Finding of Referee.</p> <p>The finding of a referee, upon conflicting evidence, that an injunction defendant 'lias not violated the injunction, will not be disturbed.</p> <p>2. Same — Costs of Reference.</p> <p>Where an injunction complainant has proceeded to a reference in a proceeding to punish the defendant for a violation of the injunction, he should, if unsuccessful, pay the costs of the reference.</p>

<p>1. Irrigation Companies — Preferred Debts — Equity Rule of Priority.</p> <p>The modem rule of equity, giving preference and priority to debts incurred in the operation of railroads oyer existing mortgages, has its foundation and justification in, and has been evolved from, conditions peculiar to the nature of railroad franchises; and it is a serious question whether it may properly be extended to cases where the mortgaged property consists of canals and works for irrigating land.</p> <p>2. Same — Lateral Ditches — Cost of Construction.</p> <p>Claims for services in the construction of lateral ditches extended from time to time, as required in the actual operation of conducting water to the different tracts of land to be irrigated by an irrigation company, will be treated as cost of original construction, and not preferential debts, even under the equity rule applicable to railroads,</p>

<p>Ou Petition for Rehearing. The opinion on the original hearing is reported in 80 Fed. 7(50.</p>

<p>In Error to tlie Circuit Court of the United- States for tlie Eastern District of Tennessee.</p> <p>This was an action a.t law by the Peebles’ Hotel Company against the Hartford Eire Insurance Company, the Phoenix Insurance Company of Hartford, the American Fire Insurance Company, the Vir.ginia Eire & Marine Insurance Company, the Georgia Home Tnsur-auce Company, tlie Lancashire Insurance. Company, and the Koval Insurance Company, to recover damages alleged to have resulted from the failure of defendants to employ suitable workmanship and materials in repairing a building damaged by fire, tlie defendants having elected to repair under provisions contained in their policies respectively. In the circuit court there was a verdict and judgment: against all the comjianies in the sum of $36,000, and the defendants sued out this writ of error.</p>

<p>1. Master and Servant — Save Appliances — instructions—Harmless Error</p> <p>An instruction making it the absolute duty of the master to provide reasonable and safe appliances, instead of to use reasonable care to furnish such appliances, is erroneous; but the error is harmless where the defect complained of is so obvious, and of such long standing, that a failure to remedy it was manifest negligence.</p> <p>2. Same — Assumption op Risks — Presumption op Knowledge op Defects by Servant.</p> <p>The loop handle of a railway switch lever became bent, so that when thrown over between the tracks, instead of falling between the ties, it rested on top of a tie, exposing the loop above the level thereof. Plaintiff was injured by catching his foot in the loop while switching cars. Ho liad been engaged about the yard as a member of a switching crew for six days, but worked mainly at night, and in his testimony denied any knowledge of the defect. Sold, that the coiu't was not warranted in presuming, as matter of law, that he' had knowledge of such defect, but, in view of his denial, should have submitted the question to the jury; especially as the attention of one engaged in switching trains is properly fixed upon his work. s<5 that he may well overlook defects in the roadbed.</p> <p>•8. Same — Assumption op Risk — Knowledge op Defect.</p> <p>A servant, having absolute knowledge of an obvious defect existing during the entire time of his service, assumes the risks thereof, and is not merely required to exercise greater care to avoid danger from the defect.</p>

This is a suit in equity by the Justice Mining Company against John Barclay and others to enjoin the working of a certain mine, situated in the Gold Hill mining district, in Storey county, Nev.

Action for libel by A. J. White, Limited, against George O. Pease, Bobert G. Eccles, and others. ' Motion by defendants to require plaintiff to make complaint more definite.

<p>Carriers — Interstate Commerce — Common Arrangement for Continuous Carriage.</p> <p>The shipment oí freight, over a number of lines of railroad from a point in one state to a point In another, at a through rate of charges, tinder an agreement, express or implied, for a conventional division of the charges among the different roads, constitutes a "common arrangement for a continuous carriage or shipment.” within the meaning of the interstate commerce act. and a road participating in such arrangement is subject to the provisions of the act, though its line lies entirely within one state, and its part of the joint charge is its regular local rate.</p>

<p>1. CARRIERS — Bill of Lading — Borden of Proof.</p> <p>Where the bill of lading under which merchandise is shipped exempts the carrier from liability for damage to the goods ‘‘if properly stowed,” if the goods are damaged the burden of proving proper stowage is on the carrier.</p> <p>2. Same — Action for Negligent Stowage — Degree of Care.</p> <p>In an action to recover for damage to range boilers because of negligent stowage, where the evidence shows that the boilers were stowed in the customary way, and according to the best judgment of experienced stevedores! the fact that if they had been put in crates, or several of them lashed together, the injury sustained might have been avoided, does not make the carrier liable, as he was not required to take such extraordinary precautions. i</p>

<p>In Error to the Circuit Court of the United States for the Southern Division of the Northern District of Illinois.</p> <p>This was an action at law by Luther E. Graves against the village of Oquawka to recover the principal and interest of certain refunding bonds issued by the city. In the circuit court a judgment was entered for plaintiff, and the defendant has brought the case to this court on writ of error.</p>

These were four 'suits, brought, respectively, against the defendant counties, upon past-due coupons cut from refunding bonds issued bv said counties.

<p>Water Supply in California — Contracts Relating to Furnishing Water —Amendment op Act.</p> <p>The amendment of 3 larch 2. 1X97, of .Act,-! Cal. March 12, 1885, prescribing the manner of iixing water rates, by inserting therein a new section, which provides that nothing contained in the act shall be construed to prohibit or invalidate any contract relating to the sale, rental, or distribution of water, or to the sale, or rental of easements or servitudes of the right to the flow and use of water, nor to prohibit or interfere with the vesting of rights under such contracts, does not give validiiy to any such contracts which in the absence of such amendment would be void.</p>

This is an action in ejectment to recover of and from tlie defendant the Silver Peak Mines the following lands, situate in Esmeralda county, Nev., to wit: “The north-east, quarter of the north-east quarter of section twenty-two (22) in township two (2) south, range thirty-nine (39) east, Mt. Diablo base and meridian, containing forty acres.” The complaint, among other things, alleges that in and upon said lands were and are valuable mill tailings and slimes, containing gold,…

<p>1. Navigable Waters — Power of Congress to Remove Obstruction.</p> <p>When congress has assumed jurisdiction over a navigable river lying wholly within one state, congress lias power to order obstructions to navigation removed, even though their construction was authorized by such state.</p> <p>2. Same — Bridges—Eminent Domain.</p> <p>When a bridge over a 'navigable river is authorized by a state legislature, reserving sc right to require a draw in the bridge on a certain contingency, congress, on assuming control of the river, may require the construction of a draw in the bridge upon the happening of such contingency, without providing for compensation to the bridge owners.</p> <p>3'. Constitutional Law — Delegating Legislative and Judicial Powers— Bridges.</p> <p>Act Cong. Sept. 19, 1890, § 4, authorizing the secretary of war to give notice for the alteration of bridges that he believes to be unreasonable obstructions to navigation, and empowering the district attorney t<? prosecute parties refusing to comply with sncli notice, is not unconstitutional, as vesting the secretary with either judicial or legislative powers.</p>

Indictment for breach of section 5280, Kev. Bt. U. S., for setting on foot or providing the means for a military enterprise against Spain, and fitting out the steamship Laurada from tlie city of New York in aid of Cuitan insurgents in Kay, 189ÍÍ. The vessel left Philadelphia on the 8th day of Way. She had several boats in her hold, and one oil deck.

<p>PERJURY — POWICK OF CIRCUIT COURT COMMISSIONERS TO ADMINISTER OATHS.</p> <p>A charge of perjury cannot be predicated upon an oath administered by a</p> <p>' commissioner of the circuit court, in taking bail in a criminal case, in a state where the state laws do not authorize justices of the peace to administer oaths for similar purposes.</p>

<p>Constitutional Law — Interstate Commerce — State Statutes — Original Package.</p> <p>Tbe Tennessee statute entirely prohibiting the importation or sale of cigarettes is invalid, as an interference with interstate commerce, in so far as it applies to cigarettes brought into the state from other states or foreign countries, and sold in the original packages of importation. ■</p>

<p>1. Constitutional Law — Nuisances—Laundries—Cits Ordinances.</p> <p>A city ordinance provided tliat it should be unlawful for any person to establish, maintain, or carry on the business of a public laundry, where articles are washed and cleansed for hire, within the city, except in certain designated localities, and declared any such laundry established or carried on in violation of this provision a public nuisance, and the violation of the ordinance a misdemeanor punishable by fine or imprisonment. Held, that t:he ordinance was in contravention of the fourteenth amendment of the constitution of the United states.</p> <p>2. Same — Bight to Use One’s Pbophbty.</p> <p>The ownership of property, no matter where located, carries with it the right to use, and to permit the use of, such property in the prosecution of any legitimate business which is not a nuisance in itself; and the exclusion of any such lawful business from a particular locality can only be justified upon the ground that the health, safety, or comfort of the surrounding community requires such exclusion.</p> <p>3. Nuisancer — Laundries.</p> <p>A public laundry is not a nuisance per se, and cannot, be made so by the legislative declaration of a city council.</p>

This is a proceeding for the forfeiture, under section 9 of the customs administrative act of June 10, 1890, of 1,150% pounds of celluloid, on the ground that it was smuggled into the United States by moans of a false and fraudulent invoice. The claimant and owner of the celluloid, which lias been seized as forfeited, is the Water Lily Kollar & Kuff Company, a corporation of the state of Michigan, doing business in Detroit, Mich.

<p>Patents — Invention—Grain- Drills.</p> <p>The Mullen patent, No. 355,402, for a grain drill to be used in sowing grain between rows of corn, and liaving, for the purpose of sowing close-to the hills of corn, pivoted side wings which swing laterally under tins control of springs interposed between the wings and the main frame, is void for want of patentable invention. 75 Fed. 407, reversed.</p>

This was a bill in equity by Edwin X. Stephenson and others against George Lyon for alleged infringement of certain patents granted to complainants, and relating to machines'for stuffing mattresses. The circuit court dismissed the bill, and complainants have appealed.

This cause comes before this court upon several motions made by the Rhode Island National Bank, Jules S. Bache, and others, creditors of the Toledo, St, Louis & Kansas City Railroad Company, the purport of which can hardly be understood without a short statement of the course of the litigation: On May 13, 1893, Stout and Purdy, citizens of New York, filed a creditors’ bill against the defendant company (hereafter called the “Kansas City Company”), which was a consolidated…

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Johnson & Johnson, the appellant, a corporation existing by virtue of the laws of the state of New Jersey, brought suit in the court below against Bauer & Black, a corporation existing by virtue of the laws of the state of Illinois, to enjoin the alleged infringement of the trade-mark of the appellant, and brings this appeal from a decree dismissing its bill for want of equity. The appellant had long been engaged in the manufacture and sale of medicinal and surgical plasters of various kinds, put up in various descriptions of boxes, and has adopted as a trade-mark, in addition to other insignia, a red Greek cross, the panels of the boxes containing words and letters indicating that the appellant is the manufacturer, and announcing directions for the use of the contents. The appellee, since the adoption and use of such trade-mark by the appellant, has engaged in the like business, one of the members of the corporation being formerly in the service of the appellant, and acquainted with its business anil methods. The appellee uses upon its goods a Maltese cross in white and gili, with a red circle thereon, and the words and letters “B & B Trade Mark.” except that upon its boxes having a red groundwork the circle of the cross is black. The following are sufficiently accurate representations of the respective trade-marks:</p> <p> </p> <p>The evidence discloses that the plasters of the appellant had become known and were ordered and sold as “Red Cross Plasters.” Otherwise than the marked resemblance in these crosses, there was but little, if any, similarity between the packages containing the goods of the appellant and those containing the goods of the appellee. The court below dismissed the bill for want of equity, upon the ground that there was no infringement shown, stating: “The complainant’s sole individuality, if he has any at all, rests on that red Greek cross. I do not think that is sufficient to mark to him an exclusive right to use the Greek cross. I do not think that the defendant so nearly imitates his trade-mark, or comes anything like so nearly imitating it, as to deceive the public who are looking for the complainant’s goods.” 79 Fed. 954.</p>

<p>1. Capsizing at Ska — Seaworthiness—Tender Model — Deck Load — Distribution of Cargo — Storms.</p> <p>The steamship C. on a voyage from San Francisco to Panama capsized in a storm about 25 miles off the Mexican coast not far from Manzanillo, at about 11 a. m.. May 27, 1895. The weather (lid not amount to a gale until 8 a. in., but at (> p. m. the master, in order (o head the seas, had turned the ship two points off her course. The ship could not be kept head to the seas, and occasionally fell off into the trough of the sea where she rolled heavily, and in three successive larger waves ivas turned over completely with nearly a total loss of ship, passengers and crew. She carried a (leek load of 47 tons of lumber. Dock loads were customary on such trips. Such storms were not expected at that time; but the disaster was within, live weeks of the season of dangerous storms on that coast. The ship had run for 20 years on that lino. Her beam was somewhat narrower in comparison With her depth than in most steamers of her class. Upon very great conflict in the evidence as to the nature and severity of the storm: IIrid, that the storm was not phenomenal in character, nor more severe than every steamer should be prepared to meet; that a steamer is not seaworthy, which in such a storm can neither keep out of the trough of the sea, nor ride safely in it; that though a deck load was justifiable under the custom of San Francisco, no custom can validate navigation by an unstable ship, nor excuse the neglect to load sufficient heavy weights below; that such neglect combined with the naturally tender model of the ship was the cause of this catastrophe, through shifting of the cargo when rolling heavily in the trough of the sea, constituting unseaworthincss for which the ship and owners are answerable, except so far as relieved by statute.</p> <p>2. Harter Act — Negligence in Loading — Limitation of Liability — Rev. St. § 4283.</p> <p>It being found that the disaster was caused through neglect to load the vessel in such a manner as to secure reasonable and necessary stability, and that the loading was done by the stevedore under the immediate supervision and direction of the master and first officer of the ship, but without any other supervision or immediate control by any of the general officers of the corporate owner: Held (1) that this negligence was in law imputable to the owner so far as to render inapplicable the exemption from liability provided by the third section of the Harter act, requiring the “exercise of due diligence by the owner”; (2) that the owner was entitled to the limitation of liability provided by section 4283 of the Revised Statutes, inasmuch as the negligence was in the superintendence of the loading, which was properly committed to the master and the first officer of the ship, and specially belonged to their duties, and the neglect was not in fact, nor by construction of law, within the knowledge or privity of the owner, or any of its general officers; (8) that the cargo was entitled to participate with other claims in the distribution of the proceeds of the ship and freight.</p>

<p>1. CARRIERS OF GOODS — CONTRACT OF CARRIAGE — Bll.l, OF IjADTNG.</p> <p>A bill of lading-, wlien signed by the carrier, and delivered to and accepted by ilic shipper without objection, in the absence of fraud, constitutes the contract of carriage, and binds the shipper, though not signed by him.</p> <p>2. Same — Stipulations Stamped on Bill of Lading.</p> <p>Stipulations stamped on the face of a bill of lading before its delivery to the shipper, and by express terms included therein, become a part of the contract.</p> <p>3. Same — Sj’koial Contract Limiting Liability.</p> <p>In tin; absence of statutory provision to the contrary, a carrier of goods may, by special contract, contained in the bill of lading, stipulate for a more limited liability than that which the law would otherwise impose upon him.</p> <p>4. Same — Construction of Bill of Lading — Place of Contract.</p> <p>A contract made in New York for the carriage of goods from there to a point in another stale is governed by the laws of New York unless a different intention clearly appears.</p> <p>5. Same — Presumption as to Law of Anothf.r State.</p> <p>Where tlie contract evidenced by a bill of lading is to be construed and enforced in accordance with the law of another state, where it was made, and there is no evidence as to the statutes of such state, the presumption is that the general commercial law governing bills of lading is there in force.</p>

The appellee, Charles P. Rudd, the owner of the schooner Annie It., filer! Ids libel in personam in the district court against the appellants, who were the owners of the steam tug N. Boutin, asking the court to pronounce for the damages sustained by the loss of the schooner through breach of an executory contract made by the appellants.

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

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

<p>Service of Process — Foreign Corporations — Resident Agents.</p> <p>An agent of a nonresident newspaper corporation, who is empowered to solicit advertisements, make contracts therefor, and receive payment, and who carries on the business at an office having the name of the newspaper on its windows, is “a managing agent,” through whom the corporation may be served, under Code Civ. Proc. N. Y. § 432.</p>

This was a suit in equity by Merritt Sowles against the National Union Bank of Swan (.on, Vt. The cause was heard upon an intervening petition filed by Margaret B. Sowles and Edward A. Sowles.

<p>t. Mining Chaims — Aiwhication von, Patent — Right to Contest.</p> <p>Occupants of lots in a town located on public lands of tlie United States, who have built on and improved the same, have a possessory right, which entitles them to contest the issuance of a patent to the claimant of a mining location covering such lots, though neither they nor the authorities of the town have taken any steps to secure title to themselves.</p> <p>2. Same — Contest between Town-Site and Minekab Obatmants.</p> <p>To entitle an applicant to a patent for a mining claim, as against occupants who have improved, lots situated within its limits, claiming under tlie town-site act, it must lie shown that, at the time the town-site claimants acquired or, purchased the lots the land was known to contain mineral ot' such extent and value as to justify expenditures for the purpose of ex-trading it. This .rule applies though the town-site claimants have taken no steps to obtain title.</p>

This was a suit in equity brought by the Mutual Life Insurance Company of Kew York against Louis O. Boyle, as attorney general of the state of Kansas, and Webb McKall, as superintendent of insurance of the same slate, to enjoin them from interfering with the transaction of its business in that state, and co procure an adjudication that it was entitled to a certificate authorizing it to carry on business therein.

This was an action at law by George Heed against the county commissioners of Gowley county, Kan., to recover on interest coupons cut from county bonds. The case was heard on a demurrer by defendants to plaintiff’s reply to the answer.

This is an action at law brought by Frank H. Wakelee to recover damages for personal injuries sustained by him while engaged in the service of the Pittsburgh «fe Western Railway Company as a brakeman. After suit was brought, the plaintiff, Wakelee, upon an inquest found, was declared to be an insane person, and letters of guardianship were duly issued to Samuel M. Thompson, who thereupon was suffered to prosecute the pending suit in behalf of Ills said ward.

This was a proceeding in habeas corpus in behalf of Arthur L. Weeks, who was imprisoned under a commitment for contempt by a state court of Vermont for refusal to produce evidence in relation to the payment of United States liquor taxes.

This was a suit in equity by the American Street Oar Advertising Company against the Newton Street-Railway Company and others, for alleged infringement of letters patent No. 380,696, issued April 10, 1888, to Isaac H. Randall, for an advertising rack.

This was an action at law by Robert Graham against Edwin T. Earl !o recover damages for infringement of a patent relating to ventilators for refrigerator cars. In the circuit court there was a verdict and judgment for plaintiff for nominal damages, in the sum of one dollar, and the defendant brings error.

This was a suit in equity by Theodore A. Tuttle, trustee, etc., against John Claflin, as executor of Horace B. Claflin, and others, formerly partners, under the name of H. B. Claflin & Co., for alleged infringement of a patent for a machine for crimping textile materials. The patent was sustained, and held to be infringed, by the court below, and an accounting, was ordered. 19 Fed. 599.

<p>This was a suit in equity by the Welsbach Light Company against the Benedict & Burnham Manufacturing Company for alleged infringement of the Welsbach patent for an improved incandescent gas lamp. The cause was heard on a motion for a preliminary injunction.</p>

On the night of Saturday, the 31th of August, 1894, about 11 o’clock, the steamer It. R. Rhodes, laden with a cargo of 1,827 tons of iron ore, while going at her full speed of 8% miles an hour, ran upon a rocky reef off the north end of the South JTox Island, in Rake Michigan. She remained fast, and at her bow drew 15 inches of water less than before she was stranded.

<p>Appeal from the District Court of the United States for the Eastern District of Michigan.</p> <p>This was a libel in admiralty by the Wallace & Cunningham Transit Company against the steamer H. E. Runnels, whereof the Jenks ShipBuilding Company was claimant, to recover compensation for salvage services. The circuit court rendered a decree for libelant in the sum of $2,450, and the claimant has appealed.</p>

<p>Marine Insurance on “Profits” — Valued Policy — Constructive “Total Loss ” — Abandonment.</p> <p>The libelant was insured in the respondent’s company for 815,000, on “profits” on a cargo of sugar, against “total loss only,” valued at amount of insurance. Before insuring, the respondent had notice of a previous insurance of the same cargo by the Atlantic Mutual for 81(58,145. The policy on “profits” was designed to cover the additional value of the cargo above the prior insurance upon a rise in the market price. The vessel was afterwards stranded, and but $9,000 net was eventually saved out of the cargo, the salvage work being superintended by the agent of the Atlantic Mutual to whom the cargo ivas virtually abandoned; that company settled with the libelant as for a total loss, returning to the libelant on account, the cargo saved to the net value of 89,000. Held: (1) That there was a constructive total loss of the cargo; (2) and an actual total loss of the “profits,” the subject of the ■ insurance in the respondent’s policy, that is to say, the value of the caigo over aud above the amount insured by tire Atlantic Mutual, which both parties understood to be the subject of the respondent’s policy; (.'!) that no act of abandonment to the respondent was required, because there was no possibility that any part of the subject-matter of this policy could remain after the stranding, the right of the Atlantic Mutual to the possession of the whole cargo being superior, and incompatible with any possible abandonment of the sugar to the respondent; (4) that the subsequent receipt of a part of the sugar on account in settlement with the Atlantic Mutual, was merely by way of payment of its liability, and in no way inured to the defendant’s benefit; and the libel-ant was therefore held entitled to recover the amount insured.</p>

<p>Seamen — Shout Allowance-Change of Route by Cave Hohn — Neglect to Gall — Scurvy—Snrp Liable -Rev. St. f) 4588.</p> <p>The ship T. F. Oakes, sailing from Hong Kong for New York by the way of Cape of Good Hope, was at first driven several hundred miles to 1ho eastward by bad weather, whereupon the master changed Ms route by way of Cape Horn, from 5,000 to 7,000 miles further. The, supplies were sufficient for the former route, but plainly insufficient for the latter. The master made no attempt to obtain additional supplies, as he might easily have done at Honolulu, Chili, or Rio Janeiro. Most of the crew suffered from scurvy through insufficient Quantity and variety of food, and some died, apparently from that disorder. Held, seamen entitled 1o recover their damages arising fro-m the master’s neglect to procure additional supplies, and the consequent short allowance, including the compensation provided by section 4508 of the Revised Statutes.</p>

<p>1 Collision with Kiprai’ of Bridge— Illegal Obstruction— “Draw 130 Beet ix tite Cobar” — Low-Water Measure Sufficient — Approval by Special Tribunal.</p> <p>In approaching the draw oí the Connecticut river at Middletown, the libelant’s barge ran upon the riprap foundation of the rest pier, which, below low-water mark, extended outward into ilie channel way. On tlie contention that the defendant was maintaining an illegal obstruid,ion of navigation, it appeared that the bridge was built under the state act of .Tune 17, :18(iS, confirmed by congress in 18(8), which act required draws “not less than 130 feet in width in the clear,” and that the bridge and draws be located and constructed in such manner and such places and upon such plans as should be approved by a competent boat'd of engineers appointed by the superior court, efe. The bridge was built accordingly, under the supervision and approval of a board of three expert engineers thus appointed, two of whom were Gens. McClellan and Gilmore. The draw space was 1 .‘50 feet wide in the dear between the abutments down to the level of low water. Below tliat. the riprap sloping outward diminished the clear space towards the bottom of the river. Held, that the contemporaneous construction of the act as requiring the full width down to the level of low water only, the projection of the riprap foundation below being-approved by the board of engineers a.nd confirmed by the edurt, was neither unreasonable nor so plainly contrary to the requirements of- the act or the public needs as to render the bridge, approved as above, an unlawful structure; and that the determination of such questions was properly within the province of the special tribunal appointed to determine and to approve the plans.</p> <p>2. Unwieldy Barge — Sheering in Shallow Water.</p> <p>The evidence showing that the "barge was difficult to handle and liable to take unexpected sheers in shallow water: Held- on the evidence that the collision should be ascribed to accident rather than to any negligence of the tug.'</p>

<p>Appellate Jurisdiction' — Moot Questions.</p> <p>Where an appeal in habeas corpus is perfected after the time allowed, and after the prisoner has been transferred to another district for trial, so as to be beyond reach of the court’s process, the questions for decision on the appeal become mere moot questions, which the court will not decide.</p>

This was an action ai: law by Tilomas E. Kane against the city of Indianapolis, C. E. Clark, and William E. ¡átevenson, to recover damages for personal injuries. The case was heard on motion to remand to the state court, from which it liad been removed.

<p>1. Bill of Exceptions — Amendment.</p> <p>Tiie allowance of amendments to the bill of exceptions long after the close of the trial term, and after the end of the time for settling the bill as fixed by order of court and stipulation of parties, and after a writ of error has been allowed, and the cause removed to the appellate court, is unauthorized, and the amendments are void.</p> <p>2. Same — Appealabue Okdbbs.</p> <p>An order allowing the amendment of flie bill of exceptions after the end of the term, and after the date fixed for settling the samo and the removal of the case to the apiiellatc court, is not a final decision such as can be made the subject of a separate suit in error.</p> <p>8. Appeal and Error — Direction of Verdict — Evidence in Record.</p> <p>In the absence of any showing' that the record contains all the evidence, it is impossible to hold that the trial court erred in directing a verdict.</p>

<p>1. Federal Courts — Jurisdiction—Suit to Wind up Foreign Corporation.</p> <p>L., a citizen of the state of Washington, and a stockholder in an Oregon corporation, brought a suit in equity in a federal court in the former state against the corporation and against its officers, who were citizens of Oregon. The bill alleged an abuse by said officers of their trust, in utterly dissipating the earnings of the corporation, and a consequent danger of its insolvency, and prayed for a receivership, and for a decree that the individual defendants account and make good the depletion. The individual defendants were not within the jurisdiction of the court. The complainant claimed to be a creditor of the corporation for dividends that should have accrued, but had not reduced his claim to judgment. On demurrer, held, that the suit could not be maintained.</p> <p>2. Corporations — Rights op Stockholder to Dividends.</p> <p>Held, further, that until the corporation had a surplus in its treasury a stockholder could not say that there was a definite sum due to him, nor insist on a dividend being declared.</p> <p>8. Same — Receivers.</p> <p>While in such a suit against a corporation and its managing officers a receivership may be proper as a mere conservative provision, incidental to the main object of Hie bill, the principle does- not apply to a ease where the officers, being beyond the jurisdiction, cannot be brought to account, nor be compelled by the court to restore ill-gotten gains, and where the appointment of a receiver, for the protection of complainant’s interests, is the main object of the suit.</p> <p>4. Same — Contract Creditors.</p> <p>A court of equity will not appoint a, receiver of a corporation, without consent of the corporation itself, upon the application of a mere contract creditor, who has not secured an adjudication of his claim, and a judgment for an ascertained sum.</p> <p>5. Same.</p> <p>A fortiori, one who cannot even claim a definite or certain amount to be due is in no position to demand such relief.</p> <p>6. Same.</p> <p>Courts having jurisdiction to enforce their decrees in the state where a corporation has its home office should be resorted to in all cases where it is necessary to inquire into and regulate the internal affairs of the corporation.</p> <p>t. Same.</p> <p>A court of equity will not take control of the property of a foreign corporation with a view of experimenting to ascertain if a stockholder’s investment may not be made more profitable by having the business conducted by a receiver.</p>

<p>1. Stock of Michigan Corporation — Personal Property — Situs That of Owner.</p> <p>Stock in a Michigan corporation is personal property, and its situs follows the domicile of the legal owner, except in those instances where for special purposes the legislature has localized it.</p> <p>2. Suit to Establish Title to Corporate Stock — Notice by Publication— Jurisdiction of Federal Court.</p> <p>In a suit to establish their rightful title and ownership, by persons claiming equitable title to stock of a Michigan 'corporation, a federal court of that district cannot, by publication of notice, acquire jurisdiction of nonresident holders of the legal title to such stock.</p>

<p>1. Creditor’s Suit — Jurisdictional Requirements.</p> <p>In all cases where a court of equity interferes to aid the enforcement of a remedy at law, there must he — First, an acknowledged debt, or one established by a judgment rendered; and, secondly, an interest of the creditor in the property, or a lien thereon created by contract, or by some distinct legal proceeding, and giving a right to have it appropriated to pay the debt.</p> <p>2. Same.</p> <p>This principle applies although Hie bill is filed on behalf of complainant and all other creditors, and although the debtor is an insolvent corporation.</p> <p>3. Same — State Statutes — Federal Courts.</p> <p>It also applies in the federal courts, although, by the statutes of the state where the suit is, brought, these requirements are not essential to jurisdiction in equity.</p> <p>4. Same — Acknowledgment of Debt.</p> <p>In a creditor’s action based on certain promissory notes of the defendant corporation, not reduced to judgment, the answer admitted liability upon one of the notes. Held, that this fulfilled the first of the foregoing requisites of equitable jurisdiction.</p> <p>5. Same — Lien by Subrogation.</p> <p>The bill alleged that defendant had given to trustees a mortgage upon its property as security in connection with its debts, including the notes held by complainant. Held that, even assuming that the mortgage was given to protect the indorsers on the notes, personally, complainant was entitled to be subrogated to all their rights, and thereby acquired such an interest in the property as to fulfill the second of the foregoing requisites of equitable jurisdiction.</p> <p>6. Same — Suit by Cestui Que Trust.</p> <p>By the terms of the mortgage, the sole duty of the trustees was to hold the property until defeasance; and no power over it, and no right or duty to foreclose, was given. The bill did not pray for foreclosure, but alleged insolvency, and prayed for an accounting, and that all other creditors be brought in, and for an injunction and receivership, and sale of all the property and franchises, and marshaling and distribution of assets. Held, that the principle that a cestui que trust, suing in his own name, must give a satisfactory reason for not using the name of the trustee, did not apply.</p> <p>7. Same — Parties.</p> <p>Held, further, that, while all the creditors must be called in, the frame of the bill dispensed with them as formal parties to the record.</p> <p>8. Same — Receivers.</p> <p>The insolvency of the corporation was denied, but the allegation was not denied that in the board of directors and the administration -there, was a deep-seated division, which could not be healed. Held, that this rendered a receivership imperatively necessary.</p>

<p>This was a suit in equity by the Bailey Liquor Company against W. G. Austin, A. V. Eiehelberger, and J. A. Mays.</p>

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

<p>1. Action for Tort of Employe — Parties Dependant — Receiver.</p> <p>A railroad company is not a proper party defendant to an action for injuries caused by negligence of employés while the road is in the hands of a receiver.</p> <p>2. Master and Servant — Tort op Servant — Joint Cause op Action.</p> <p>A cause of action growing out of the negligence of a servant while engaged in his master’s business is not a joint cause of action in tort against the master and servant.</p> <p>3. Removal op Causes — Rioht op Receiver — Effect op Joinder.</p> <p>A cause of action against a receiver appointed by a federal court, and one of his employés, for iniuries occasioned by the negligence of such em-ployé, is one arising under the constitution and laws of the United States; and, where the amount in controversy exceeds ,52,000. the receiver may remove the case, whether such cause of action he joint or several.</p>

This was an action at law by Therese M. Seebass and others against, the Mutual Reserve Fund Life Association to recover on a contract insuring the life of Osear Beebass. The case was heard on demurrer to a plea filed by the defendant.

This was a bill iu equity by Thomas D. Kelley, Margaret O. Kelley, Michael P. Kelley, and Annie B. Kelley against Charles Boettcher, John P. Campion, A. V. Hunter, A. K. Meyer, William Boyd Paige, Max Boehmer, and the Ibex Mining Company. Demurrers to the original and an amended bill were sustained by the court below, and, complainants declining to amend further, a decree was entered for defendants. Prom this decree the present appeal was taken.

<p>Municipal Coupon alto ns — Telegraph Pole and Wire Taxes — IntiÍrstatp, Commerce.</p> <p>Tiie city of Philadelphia has no power to impose pole and wire taxes upon a telegraph company doing interstate business, in excess of the reasonable expense to the city of the inspection and regulation thereof, and an ordinance imposing charges several times larger than this amount is invalid. 40 Fed. 615, followed.</p>

<p>1. National Banks — Guaranty.</p> <p>The act of congress authorizing the organization of national hauls confers upon them no authority, either iu express terms or by implication, to guaranty the payment of debts contracted by a. third person, and solely for his benefit; and acts of this nature, whether executed by the cashier or the board of directors, are necessarily ultra vires.</p> <p>2. Sale — Fraudulent Representations — Rescission.</p> <p>The presentation by a merchant seeking to purchase goods of a written guaranty, by a national bank, of payment for any goods he may purchase, oven if it implies a representation that the bank is financially sound, is not of itself a fraudulent representation, such as will justify a rescission, since the seller is chargeable with knowledge that in law such a guaranty by a national bank is ultra vires and void.</p> <p>3. Same — Fraudulent Intent.</p> <p>Whether goods are bought with a preconceived fraudulent intent not to pay for them is a question for the jury if there is evidence tending to show such an intent, but not of so conclusive a character as to convince all reasonable minds that such must have heen his purpose.</p> <p>4. Vendor and Purchaser — Innocent Purchasers.</p> <p>To vest a. mortgagee of chattels with the rights of an innocent purchaser, a pre-existing debt alone is not sufficient, but, if any considerable sum of money is paid at the time of Hie execution of the mortgage, and as part, of its consideration, then the mortgagee may be an innocent purchaser as to the full amount of his loan.</p> <p>5. Conversion — When Maintainable.</p> <p>An action for wrongful conversion against one who has sold goods in his possession is not maintainable where defendant liad a valid lien upon the property, so that his refusal to surrender it upon demand was not a tort.</p>

On December 2, 1895, appellant, as plaintiff, filed Ms bill of complaint in tiie district court of Jefferson county, Colo., praying that defendants, as holders of the legal title to the S. W. % of section 3, town 4, range 69, in said county, be adjudged and decreed to hold such title as trustees for the plaintiff, and be ordered to convey such title to him.

<p>Pruno Lands — Void Pre-emption's and Locations — Secretary's Decision.</p> <p>Tii a contest taken by appeal to the secretary of 1hc interior, his decision and judgment that a scrip location and a pre-emption claim are fraudulent and void, and that the land in question is thus left open to disposal under the public land laws of the United Stales, fixes the status of the land, and takes effect immediately upon its rendition, and not upon the making of the proper cancellation entries in the local land office.</p>

<p>1. Public Lands — Homestead Entries — Relin'qdishiient—Rights of Settler.</p> <p>In May, 1890, one R. H. D. filed a homestead entry of certain unappropriated land, but never actually settled on it. On October 24, 1800, in consideration of $1,000, he delivered to plaintiff a relinquishment of his rights, which was filed by her on that day, simultaneously with her own application to enter; and due records, entries, and receipts thereof were made. On April 22, 1891, she actually settled on the land, and began to build a house, and thereafter resided there continuously. But on September 19, 1890, defendant had made actual settlement on the land, and erected a house, which was completed October 10, 1890, and he was in possession on October 24th, when plaintiff filed her application, and he thereafter continuously resided there. Held, that at the instant when the relinquishment of R. H. D. was filed the right of defendant as an actual resident and settler attached.</p> <p>2. Same.</p> <p>Defendant was temporarily absent, fot proper reasons, from October 19th until October 24th. Held, that his residence and settlement continued during this absence, and that it was immaterial whether he was personally on the land at the instant when R. H. D.’s relinquishment was filed.</p>

Abigail Rebecca Puller, appellant’s intestate, filed her bill in the court below to enjoin the alleged infringement of letters patent of the United States of America, No. 10.SÑ7, dated September 7, IKS!», granting to her the exclusive right, for 3% years from the date of the patent, to make, use, and vend a design for a rosette intended to enrich the appearance of wearing apparel trimmed with the same.

This was a suit in equity by the Pillsburv-Washburn Flour-Mills Company, Limited, and six other parties, against Harry R. Eagle, to enjoin him from using the words “Rest Minnesota Latent, Minneapolis, Minn.,” in connection with flour sold by him.

This is an appeal from a decree of the district court for the Eastern district of Michigan, in admiralty, for about $70,000, against the steamer the City of New York, owned by the appellant and claimant, the Union Steamship Company, in favor of the Erie & Western Transportation Company, the libelant, and owner of the steamer Conemaugh, for damages sustained by the latter from a collision between the two steamers, which resulted in the sinking of the Conemaugh in the Detroit…

<p>1. Collision — Weight op Evidence.</p> <p>Ttoe direct and positive testimony of the captain and pilot of a steamer that they were keeping a careful lookout, and saw no light on a sailing yacht with which they collided, and that neither the lookout at the bow or the quartermaster at the wheel discovered or reported a light, cannot be disregarded, in the absence of absolute inconsistency willi the circumstances; and such testimony is a very strong circumstance in support of the contention that the yacht’s light was obscured by her jib.</p> <p>2. Same — Steamer and Sail — Holding Course.</p> <p>The rule that a sailing vessel shall hold her course on the approach of a steamer does not justify her master, on seeing a steamer a mile and a half away at night, in holding his vessel on an intersecting course, making- no calculation as to á strong tide which is bearing- him towards her, and giving- her so little further attention that he first discovers her dangerous proximity on looking under his boom, and seeing her only 40 feet away.</p>

<p>1. CORPORATIONS — 17LTRA VOPES — CONTRACTS FOR FUTURE DELIVERY.</p> <p>The fact that a cotton-mill corporation purchases cotton for future delivery, through a broker, and puts up margins necessary to carry it, does not render the purchases ultra vires, if they were not in fact speculations on the rise and fall of cotton, but were made in the ordinary and legitimate business of the mill for its own use.</p> <p>0. Contracts fob Future Delivery — Validity.</p> <p>Where such contracts are not illegal in their origin, the carrying of them, and paying from time to time the margins on them, are not invalid if their purpose is to save the corporation from loss.</p> <p>3. Same — Test of Validity.</p> <p>The true test of the validity of a contract for future delivery is whether it could be settled only in money, and in no other way, or whether the party selling could lender and compel the acecptanca of the particular commodity sold, or the party buyiug could compel the delivery of the commodity purchased.</p> <p>4. Same — Intent of Parties.</p> <p>Tinder Acts Assem. S. C. 1883 (18 St. at Large, p. 454), relating 1o contracts for sales for -future delivery, validity depends upon the bona fide intent of the parties.</p> <p>5. Same — Burden of Proof.</p> <p>The burden of showing that a contract of sale for future delivery, which expressly gives the right to the seller to deliver and to the buyer to demand the delivery of the article sold, is invalid, is on the party attacking its validity.</p> <p>6. Same — Advances -by Third Party — Maroins.</p> <p>Though a third party advancing- money to pay losses on an invalid contract of purchase for future delivery might, under some circumstances, be so connected with the immorality of the contract as to be affected by it, yet where he had no knowledge of the inception of or early payments on the transaction, which was on its face regular and valid, and carried on in good faith, and his advances were made to prevent loss, and after the whole risk had been incurred, it would not be equitable to hold him responsible.</p> <p>1. Same — Validity of Mortoaoh.</p> <p>In such a case a mortgage given to the third party by the purchaser, a corporation, to secure his advances, would be binding.</p>

<p>1. Statutes — Constitutionality—'Titles.</p> <p>There is nothing in the constitution or laws of Kansas requiring the journals of the legislative bodies to disclose the title of bills pending before them; and it. is sufficient if a title sufficient to satisfy the constitutional requirement first appears in the engrossed and enrolled bills, and thereafter on the journal, and as published in the official papers and the Session Laws.</p> <p>2. Subjects on Interstate Commerce — Stock-Yards Business.</p> <p>láve stock shipped from other states to the stock yards at Kansas City, to be either sold there, or, if the market is unsatisfactory, to be shipped to oilier markets, is a subject of interstate commerce, and remains such until it reaches its destination, and is sold and mingled with the general mass of property of the state.</p> <p>3. Same — Corporations Subject to .Interstate Commerce Law — StockYards Companies.</p> <p>The interstate commerce law applies only to common carriers, and its provisions in respect to reasonable and just charges are not applicable to the business of a stock-yards company which neither operates nor uses any railway, motive power, or rolling stock, nor otherwise engages in any transportation.</p> <p>4. Interstate Commerce — Stock-Yards Business — Regulation by State.</p> <p>Neither the' act of congress concerning the unloading of live stock for feeding, watering, and resting (Rev. St. §§ 4386-4388), nor the act of May 29, 1884, to prevent the exportation of diseased cattle (23 Stat. 31), nor the act of March 3, 1891, ill reference to the inspection of cattle, sheep, and hogs which are the subjects of interstate commerce, etc. (26 Stat. 1089), are of such a nature as to show that congress has assumed the exclusive regulation of interstate commerce in live stock, to such an extent as will prevent a state legislature from prescribing reasonable maximum charges and other regulations in respect to the yarding, feeding, care, and- sale of slock by a stock-yards company.</p> <p>5. Same.</p> <p>The fact that the yards of a stock-yards company are located on both sides of a line between two states, so that the stock may pass to and fro over the state line, in the yards, in feeding, handling, etc., does not of itself impress the traffic with the character of interstate commerce.</p> <p>6. Same.</p> <p>The business of a stock-yards company in receiving, yarding, and feeding live stock, and making sales thereof, for the owners, though, performing these services for a mixed interstate and local traffic, is such an incident to commerce as may be subject to restriction in its charges by state legislation.</p> <p>7. Constitutional Law — Taking Property without Due Process.</p> <p>“ In determining whether state legislation limiting or regulating the charges of a corporation engaged in a business affected by a public interest, as that of a stock-yards business, amounts to a taking of property without due process of law, the primary inquiry is whether the act deprives the owners of a fair and reasonable return on their investment, the rights of the public being considered. And, in determining what is the investment upon which a reasonable return must be allowed, the legislature is not bound to accept the present valuation of the corporate stock, which has been builded up to a premium on the assumption that its status would continue the sainé and the legislature would never exercise its power of regulating charges.</p> <p>8. Same — State Statutes.</p> <p>A state statute so limiting the charges of a stock-yards company as to allow it a net income equal to 5.67 per cent, annually on the actual value of its plant, or of 4.24 per cent, of its value as expressed in its shares of capital stock at their par value, does not oiierate to deprive it of its property without due process of law.</p> <p>9. Same.</p> <p>The Kansas statute of March 3, 1897, regulating stock yards, fixing compensation for yarding, feeding, and watering, live stock, and fixing a limit for the prices of feed, etc., is not in violation of any provision of the federal constitution, as applied to the Kansas Oity Stock-Yards Company.</p>

<p>1. Commerce — Legislative Regulations — Stock Yards.</p> <p>A stock-yard business, located in a large city, at the junction of many railroad lines, which furnishes the only proper facilities for the unloading-, resting, and feeding of live stock in transit, and for the sale of cattle within said city, is affected with a public use, so as to be subject to legislative control, and the proper legislative body may prescribe a maximum rate of compensation for the care and handling- of stock thereat.</p> <p>2. Interstate Commerce — Stock-Y'ards Business.</p> <p>It is doubtful whether the business of a stock-yards company, which itself neither buys nor sells live stock, but merely renders services to the owners thereof, in yarding, feeding, watering, and weighing the animals, constitutes interstate commerce, though a. large proportion of the animals come to its yards from other states, and are therefore themselves subjects of interstate commerce. The fact that a particular stock yard extends over the boundary line between two states does not make the business there carried on interstate commerce.</p> <p>3. Same — Regulation by State.</p> <p>Conceding that the business of a stock-yards company in handling live stock in transit from other states is so intimately related to interstate commerce which is transacted in its yards by other persons that congress might lawfully prescribe maximum charges for yarding, feeding, and caring for stock coming from other states, yet' this power is not of such an exclusive character as to prevent the state from prescribing such rates, in the absence of any legislation on the subject by congress.</p> <p>4. Constitutional Law — Due Process and Equal Protection — Confiscation —Fixing Compensation for Services Rendered.</p> <p>In determining whether a state statute prescribing rates of charges by a stock-yards company is reasonable, or confiscatory, so as to amount to a taking without due process of law, or the denial of the equal protection of the laws, a prime factor is the valuation which shall be placed on the properly of the stock-yards company used in its business of yarding and feeding stock.</p> <p>5. Same.</p> <p>. When a valuation is placed on properly, which lias become anected with a public use, for the purpose of ascertaining whether the maximum rate ■of compensation fixed by law for its use is reasonable or otherwise, the income derived therefrom by the owner before it was subjected to legislative control cannot always be accepted as a proper test of value, because the charges then made may have been excessive and unreasonable. And, when the property lias been capitalized by issuing stock, neither the market value nor the par value of the stock can be accepted in all cases as a proper criterion of value, because the stock may not represent the money actually invested, and because the property may have been capitalized mainly with reference to its income-producing capacity, on the assumption that it was ordinary private property, which the owner may use as lie jileases, without being subject to legislative control. On the other hand, the owner is entitled to the benefit of any appreciation in value above original cost resulting from natural causes, such as improvements made in the vicinity, growth of the. town, etc.</p> <p>6. Same.</p> <p>A state statute prescribing maximum charges to be made by a stockyards company, and which allows an income of 5.3 per cent, annually on the actual value of the property used for stock-yards purposes, or of 4.6 per cent, on the capitalized value of the property and business, is not confiscatory, though it reduces the previous net income nearly 50 per cent.</p> <p>7. Temporary INJUNCTION — Dismissal of Bum.</p> <p>In a suit to enjoin the enforcement of a state statute prescribing’ maximum charges of a given, business, on the ground that it amounts to an unconstitutional confiscation of properly, where the questions involved are doubtful, the court, though it decides to dismiss the hill, will grant a temporary injunction pending a probable appeal; it appearing that the enforcement of the statute meantime would produce great harm to the complainant’s business.</p>

<p>Appeal from tlie Circuit Court of the United States for tbe .Nortliern District of Illinois.</p> <p>This appeal is from a decree dismissing a bill for an injunction against the occupation and use for railroad purposes of real estate in Chicago, between Yan Burén and .Tackson streets, fronting to the east on Market street, and extending to the Chicago river on the west, described as lot. 10 in the subdivision of lots 2, 3, and 4 in block 84, School Section Addition to Chicago. The essential facts, as shown by the bill, answer, and proofs, are these:</p> <p>In 1888, the appellant, Clara P. Bass, leased the premises to John P. Altgeld for the term of 00 years, at an annual rental of $2,500 for the first 10 years, and thereafter of 5 per centum of the “fair salable value of the leased premises exclusive of the buildings,” to be ascertained by appraisement on July 1, 1898, and every succeeding tenth year, but at no time to be less than $2,750 per annum, the. tenant paying all taxes, rates, charges, and assessments, and maintaining in good repair buildings and improvements. Of the numerous provisions and covenants in the lease, binding upon or for the benefit of the respective parties, their heirs, representatives, or assigns, those especially iierti-nent to the present discussion are, in substance, the following: The tenant shall forthwith erect on the premises “a good and substantial building of brick, stone, and such other material as is commonly used on the outside and in the inside of first-class buildings, the foundations and walls to be sufficiently strong to support a building eight stories high, and the building to be at least seven full stories in height above the grade of the street, and to cost not less than the sum of $50,000, according to designs, plans, and specifications, to be approved in writing by the lessor, * * * and in accordance with the building ordinances of the city of Chicago, covering the entire premises aforesaid.” The tenant shall keep the building insured for three-fourths of the value, and, in case of destruction or damage by fire, “shall repair the same upon designs, plans, and specifications to be approved by the party of the first part, * * * so that the building shall entirely cover said premises, and shall be at least seven full stories in height above the grade of the street, also of such materials and with such foundations and walls as shall be approved by said party of the first part, * * * to cost not less than $35,000, exclusive of foundations, and have the same rebuilt and ready for occupancy within eighteen months from such loss and destruction”; and, in case of failure to rebuild, all insurance money shall belong to the lessor. In the event of the determination of the lease before the expiration of the term for breach- of any covenant herein, the building, fixtures, and improvements on the premises shall be forfeited to- and become ilie property of the owner of the fee. “without any compensation therefor” to the tenant. At the end of the term of t)0 years the owner of the fee shall either purchase the building, fixtures, and improvements on the premises, paying sixty per cent, of their cash value, as determined by an appraisement provided for, or make, a new lease for forty years on the terms of the original lease, except that, In lien of the clause for the purchase of building, it shall he provided that, if the lease expires by lapse of time, or otherwise, the building or buildings, with all improvements and fixtures then on the premises, shall become and be the property of tlie owner of the fee, without rendering any compensation therefor. The tenant shall at no time permit any part of the premises to he occupied adversely to the interest or title of the lessor. No assignment of the lease shall be made without giving the owner of the fee the option to buy the leasehold interest at the price of the proposed assignment. “In order to secure the payment of all rent; due, accruing, or to accrue under this lease, and also all sums advanced or paid for taxes, duties, rates, charges, assessments, or impositions as aforesaid, or due upon any other account whatever, and for which said lessor, her heirs, executors, administrators. or assigns, may be entitled to repayment hereunder, she, he, or thev shall have at all times a first and valid lien upon all improvements and tenements, and the materials thereof, which may be at any time upon the said leased premises,” “meaning and intending hereby to give the party of the first part, her heirs, executors, administrators, and assigns, a valid and first lien upon any and all buildings, improvements, and other property on said premises belonging to the party of the second part, his heirs, executors, administrators, and assigns, as security for the payment of said rent in the manner aforesaid, anything hereinbefore contained tO' the contrary notwithstanding.” A seven-story brick building was accordingly erected, at a cost: of more than $50,000, and covering the entire lot except a strip, five or six feet wide, next to the river.</p> <p>In 1804, tlie appellee, the Metropolitan Elevated Railroad Company, a corporation organized to operate an elevated railroad in Chicago, acquired the premises adjacent to the appellant’s lot on the north, extending from Market street to the river, and, having removed existing buildings, constructed thereon an elevated railroad, upon which its trains run, and for some, months prior to tlie filing of the hill had been running, in their passage to and from the western division of the city. In order to connect its road with the loop elevated railroad in process of construction in the city, tlie Metropolitan Company found it necessary .to cut away the northeast corner of the appellant’s building above the first story thereof, and, in order to accomplish that end without resort, to proceedings for condemnation under the statute of the state, procured an assignment to itself of Hie leasehold estate; Altgeld having assigned in 1889 to John J. Mitchell, who on August 29, 189,">, assigned to the Metropolitan Company. These assignments were made with tlie consent of the appellant. "Upon coming' into possession, and before the filing of the bill, tlie Metropolitan Company proceeded to cut away the northeast corner of the building above the first story, the portion removed being in the form of a prism, with three plane faces extending from the top of the building, the lines of section of tlie walls being 13.4 feet on the north and 12.4 feet on tlie east from the northeast corner of the building. A freight elevator which had been in that corner was removed, and re-erected next to tlie north wall, at a point halfway from Market street to tlie river. According to the plans in evidence, no supporting columns have been or will be placed upon the land of the appellant, but the portion of the first story not cut down will he crossed by a girder upon which will rest the track connecting the road of tlie Metropolitan Company on the north side of the premises with the road of tlie TTiiion Consolidated Elevated Railroad Company in front of the premises on Market street. The Metropolitan Company is insolvent, and its road is in the hands of a receiver, the respondent and appellee Dickson MacAIlister.</p> <p>The prayer of the hill is that the appellee be enjoined from placing the proposed structure across tlie premises, and from running trains thereon within tlie lines of the lot; that the receiver be required to perform tlie covenants of the lease, to restore the building to the condition in which it was before the cutting off of the corner, and thereafter to maintain the same in accordance with the terms of the lease; and that, in default thereof, the lease he forfeited, and the premises surrendered to the appellant.</p> <p>It is shown that the Metropolitan Company paid Mitchell for the leasehold $84,000, and, in addition, expended upon the property, for necessary improvements and repairs, more than $10,000, and that in its present condition the building is a better security for the payment of rent and the performance of other covenants of the lease than it was before the Metropolitan Company took possession. The constitution of Illinois (article 2, § 13) provides “that private property shall not be taken or damaged for public use without Just compensation,” which, “when not made by the state, shall be ascertained by a jury, as shall be prescribed by law”; and by article 11, § 14, it is provided: “The right of trial by jury shall be inviolate in all trials of claims for compensation, when, in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.” Section 2 of an act “to provide for the exercise of the right of eminent domain” (Rev. St. Ill. c. 47) requires the railroad company which proposes to take property to file in court “a petition, setting forth, by reference, his or their authority, in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested therein as owners or otherwise, as appearing of record, if known, or if not known stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed. * * * Persons interested, whose names are unknown, may be made parties defendant by the description of the unknown owners.” By section 11, “any person not made a party may become such by filing his cross-petition, setting forth that he is the owner or has an interest in the property, and which will be taken or damaged by the proposed work; and the right of such last named petitioner shall thereupon be fully considered and determined.” The opinion of the court below is in the record, but has not been reported.</p>

This was an action at law by Delia M. McDuffee and others against the Boston & Maine Kailroad Company. The case was heard upon a mofion made by plaintiffs to set aside an order requiring- them to give a cost bond.

<p>1. Indemnity Bonds — Pleading—-Proofs of Loss.</p> <p>An- action was brought on two bonds, by which defendant was obligated to reimburse any loss sustained by plaintiff, through the fraud or dishonesty ■of its employes therein named, “within three months next after notice, accompanied by satisfactory proof of loss, * * * has been given to” plaintiff. The complaint did not, in terms, allege the giving of proof of loss, but did allege that “plaintiff duly kept and performed all the conditions of said bond od its part.” The statute of California (Code Civ. Proc. § 457) provides that, in pleading the performance of conditions precedent in a contract, “it may be stated generally that the party duly performed all the conditions on his part.” On demurrer, Me?, that this statute did not relieve plaintiff of the necessity of alleging facts showing that three months had elapsed after proof of loss, and before the action was brought.</p> <p>2. Same.</p> <p>The complaint also alleged that the sum demanded “is now due.” Held ■ a mere conclusion of law.</p> <p>3. Same.</p> <p>The complaint alleged that plaintiff gave notice of the loss in 1895, and that defendant had in fact “been fully advised and informed of and concerning the aforesaid breaches * * * ever since the month of May, 1892.” Held, that this fact did not dispense with the necessity of furnishing proof of loss, as a condition precedent to plaintiff’s right of action.</p> <p>4. Same — Time of Discovery of Loss.</p> <p>The obligation of defendant, as expressed in the bonds, was to make good “all and any pecuniary loss sustained by the employer, *■ * * and discovered within six months from the death or dismissal or retirement of the employe from the service of the employer.” Held, that an allegation that the loss was discovered within such six months was essential to the statement of a cause of action.</p>

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

<p>1. Township Bonds--Validity — Innocent Purchasers.</p> <p>The question whether the petitioners for an issue of township bonds, were freeholders of tlie township, as required by the statute, is one which cannot be questioned by the township, as against innocent holders of the bonds, after the same has been determined by the county board, the bonds issued, and the avails thereof received.</p> <p>2. Same — Bonds of Township Containing Second-Class City.</p> <p>Under the statutes of Nebraska, the powers and jurisdiction of a second-class city, and of a township in which it may be local od, are entirely separate and distinct, and therefore the township may issue bonds based on the combined assessed valuation.</p> <p>8. Same — Constitutional Limitation — Overissue of Bonds.</p> <p>The Nebraska constitutional limitation on municipalities is not as to the bonded indebtedness for all purposes, but upon the amount to be issued for works of internal improvement, which do not include a county court house.</p> <p>4. Same — Statutory Limitation — Determination Vested in Board.</p> <p>When limitations as to amount of indebtedness are imposed'by statute, and not by the constitution, the legislature may create a board with authority to determine the questions of fact upon which the amount of limitation depends, and its finding will be conclusive in favor of bona fide purchasers.</p> <p>5. Same — Notice from Records.</p> <p>When tlie limit of an issue of bonds is to be ascertained from records or data which are peculiarly within the knowledge and control of the officers of tiie municipality, or they hare better access to tlie information than other persons, and can ascertain the amount with more certainty than strangers, then the bonds will be hold valid in the hands of bona fide holders.</p> <p>6. Same — Compliance with Conditions — Recitals in Bonds.</p> <p>Purchasers of railway aid bonds are not required to ascertain what conditions as to time of completing the road were imposed by the proposition voted oil, where such conditions were not shown on the face of the bond, and the bonds recite a compliance with the law.</p> <p>7. Same — Proceeding to Enjoin Tax to Pay Bonds — Bondholders not Pasties.</p> <p>Holders of municipal bonds, who were not made parties to a suit brought by taxpayers to enjoin the proper officers from levying and collecting a tax to pay? them,- are in no manner affected by a judgment granting the injunction.</p>

The defendants in this case were charged with conspiracy together to defraud the United Slates in making and presenting a false writing.

<p>1. Criminal Law — Discharge for Void Sentence — Removal to District of Trial for Resentenok.</p> <p>The petitioner was indicted and convicted in the Central district .of the Indian Territory, and sentenced to imprisonment at Detroit, Midi. While the marshal of that district was en route with the prisoner to the prison at Detroit, he sued out a writ tíí habeas corpus before the circuit court of the United States for the Western district of Arkansas, and was discharged because the sentence pronounced against him was void. Upon being rearrested under section 1014 of Hie Revised Statutes of the United States, he sued out a second writ of habeas corpus before the same court. Held, That the proceeding under section 1014 of the Revised Statutes of the United States was irregular and unauthorized, and the defendant is discharged without prejudice to the United Sta1.es to take any lawful measures to have the petitioner sentenced according to law upon the verdict of guilty against him.</p> <p>2. Same — Procedure.</p> <p>Held, further, that the proper proceeding for the removal of the prisoner to the Central district of the Indian Territory was for the United States court for unit district, under section 716 of the Revised Statutes of the United States, to issue its warrant, addressed to the marshal of the Western district of Arkansas, to arrest the defendant and deliver him to the marshal of the Central district of the Indian Territory to abide the action pf that court.</p> <p>(Syllabus by the Judge.)</p>

<p>This was an indictment against Edward Murphy for an alleged violation of the neutrality laws. The case was heard on a motion to set aside the forfeiture of the recognizance for defendant’s appearance and answer.</p>

From the record in this case it appears that in 1S93, and for some years previous thereto, Charles H. Dow was the president and Sidney B. MeOlnr-ken was the receiving .teller of the Commercial National Bank of Denver, Colo., and Orlando E. Miller was the president of the Miller I-Iernia Treatment Company, the headquarters of this company Being in the city of Denver.

<p>1. Patents — Construction op Claims — Mechanical Equivalents.</p> <p>In a patent which avowedly relates merely to improvements in details for the purpose of securing, simplicity and economy in eonscruction and efficiency and certainty in operation, the patentee cannot broaden his patent so us to c-over equivalenTs of all kinds by a statement that other changes may readily be devised and still embody the general features of his invention.</p> <p>2. Same — Commercial Success.</p> <p>The rule staled in De Loriea v. Whitney, 11 C. C. A. 355, 03 Fed. 611, that the fact that a patent has been the source of great commercial success, and has laid the foundation of a prosperous business, may be evidence of novelty, utility, and patentability, but can rarely, if ever, assist in determining the proper construction of the patent.</p> <p>8. Same — Inb’ringement—Claim for Mechanical Details.</p> <p>The rule applies, that, where the claim is a narrow one, concerned with mere mechanical details, a change in such details is a substantial, and flot merely a colorable, change.</p> <p>4. Same — Electric Switches.</p> <p>The Hart reissue, No. 11,395 (original No. 459,708), for an electric snap switch, construed narrowly, and held not infringed.</p>

This was a suit in equity by Fred. H. Beach against Clarence W. Hobbs and others ior alleged infringement of reissued letters patent No. 11, 167, granted May 26, 1891, to complainant, for a machine for staying the corners of paper boxes. The original patent was numbered 447, 225.

<p>1. Counties — Constitutional Limit of Indebtedness — Refunding Bonds — ■ Demurrer.</p> <p>In a suit against a eormiy, tlie bill'alleged that defendant was empowered to incur indebtedness up to, but not exceeding, a specified limit, and was authorized to issue bonds to refund existing valid debts. For the purpose of taking up various debts of that character, it appointed a financial agent, prepared bonds showing on their face that they were intended for refunding purposes, and, as inducements to Hie purchasers, explained the nature of the indebtedness to be paid off, and Hie county’s financial condition anil resources. From time to time the county sold the bonds to various parties, and the proceeds thereof were, in whole or in part, in fact used to pay off the pre-existing valid indebtedness of the county. If the amounts of all the bonds sold were to be added to the pre-existing debts, the total would show an excess over the constitutional limit. Upon demurrer, in a. suit in equity, brought by Ihe same persons who advanced the money direct to the county, and based on the entire transaction, held, that in so far as the. proceeds were in fact used to pay off the prior valid indebtedness, they would create no excess over the limit, and that the suit might be maintained.</p> <p>2. Form of Action — Res Adjudioata.</p> <p>An action was brought at law, but v/as dismissed on the ground that relief should be sought in equity, and this judgment was affirmed on appeal. A suit was (lien begun in equity. Held, that defendant could not then object that the action should be at law.</p> <p>3. Statute of Limitations — County Bonds.</p> <p>In so far as a given contract between a county and parties who advance money to it to pay off existing debts, and who receive county bonds as evidence of their claim, is valid, the statute of limitations does not begin to run as to the principal until the date fixed in the bonds for payment.</p>

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

Huit in equity by the Terre Haute & Indianapolis Railroad Company against the Peoria & Pekin Union Railroad Company. The cause was heard'on a motion for an injunction to stay certain proceedings in a state court.

<p>1. Landlord axi> Tenant— Covenant to Purchase Improvements- — Sublet-tino and Assignment.</p> <p>On November Í, 1805, A. leased certain premises to plaintiff and bis intestate from that date “for and during and until” duly 1, 1885. Tbe lessees covenanted to build on tbe premises, and the lessor agreed at tbe expiration of tbe term “to purchase tbe improvements erected upon said premises at an appraised valuation for material for building purposes.” The lessees agreed not to remove any buildings or improvements, except for rebuilding, without consent, and to insure, and that the rent should lie a lien on buildings and improvements that might at any time be erected, etc. The lease was duly recorded. The lessees entered and erected a building. Thereafter they transferred a term to L., H. & L. from April, 1870/ “for and during and until” 'July 1, 1885; reserving rent to themselves, and guarantying tiie insurance money, in case of fire, to L., H. & L., for rebuilding. They also gave to L., H. & L. the right to alter and improve, and to elect to buy the improvements on the same terms named in the original lease, and thereupon to acquire the rights of the original lessees in that respect against the lessor. The instrument provided that at the end of the term the premises should be delivered up to the original lessees, who also reserved a right of re-entry for nonpayment of rent. Subsequently L., H. & L. transferred to H. H. The building was destroyed by fire. H. H. then transferred to the Bank of C., which, receiving 82,000 insurance money, erected a 830,000 building, and later transferred to W. On April 10, 1878, the interest and reversion of the original lessor was conveyed to defendant. At the expiration of the term, suit was brought on behalf of .the original lessees against defendant to recover for the material in the $30,000 building. Held, that the improvements mentioned in the original lease comprehended the improvements existing at the end of the term.</p> <p>2. Same.</p> <p>Held, further, that if, as would seem to be the case, the transfer from the original lessees was a subletting, and not an assignment, it did not shut off tlieir right to recover the value of the improvements under the lease.</p> <p>3. Same.</p> <p>Held, further, that, if that transfer was an assignment, yet the obligation of the original lessor to pay for improvements was a charge on the reversion, and that the covenant creating this charge was not assigned.</p> <p>4. Same.</p> <p>Held, further, that, whether the transfer to L., H. & L. was an assignment or a sublease, defendant was bound by the obligation to pay for the improvements.</p>

<p>1. Vendor and Purchaser — Vendor’s Lten — Lands Held in Severaltt Sold in Solido.</p> <p>Where the several owners of different mining claims join in a contract for the sale of all the claims for a sum in solido, payable to them jointly, and the several deeds are executed, and possession taken thereunder, in pursuance of the contract, they jointly have a vendors’ lien on all the property conveyed, for the unpaid purchase money.</p> <p>2. Same — Notice of Lien — Innocent Purchaser.</p> <p>A grantee or mortgagee, who kne.w at the time his grantor purchased the real estate that he did not pay all the purchase money, will be charged with notice if it still remains unpaid at the time of the conveyance to him, and he will take title subject to the lien therefor.</p> <p>3. Same — Waiver of Lien.</p> <p>An agreement by the vendors of mining claims to accept payment therefor out of the proceeds of the mines, is- not a waiver of the vendor’s lien for the unpaid purchase money.</p> <p>4. Same-*Defect in Title — Defense to Action for Pub,chase Money.</p> <p>It is no defense to an action for purchase money that the grantor had only a possessory title to a portion of the land conveyed, the contract having been for the delivery of deeds and abstracts showing full and complete title, where abstracts were delivered which correctly showed the title, and the deeds were accepted, possession taken thereunder, and the grantor has not been ousted.</p> <p>5. Same — Set-Off against Purchase Money-Pleading.</p> <p>A claim for damages constituting a proper set-off against purchase money will not be considered if not set forth by cross bill.</p> <p>A Process against Foreign Corporation — Montana Statute — Garnishment.</p> <p>Comp. St. Mont. div. 5. $-442, requiring foreign corporations to file with the secretary of state the designation of an agent within the state upon whom process against the corporation may be served, and the consent of the corporation to accept such service, does not authorize the service on such agent of a notice to such corporation to answer as garnishee.</p> <p>S’. Vendor and Purchaser — Action to Foreclose Lien — Lessees as Parties.</p> <p>Lessees of real estate are not necessary parties to a suit for purchase money and foreclosure of vendor’s lien, unless a decree is sought affecting their rights. 0</p>

<p>Limitation of Actions — Implied Promise — Corporations.</p> <p>Under statutes making stockholders liable for corporate debts in case the same cannot be collected from the corporation, the liability is based upon an implied promise created by the acceptance of the stock, within the purview of the Illinois statute barring actions on oral contracts in five years.</p>

The WTit of error in this case was sued out by the First National Bank of Spokane Falls and F. Lewis Clark, receiver of said bank, defendants in the court below, for certain errors claimed to have "been committed by the trial court in admitting and rejecting evidence, in giving and refusing to give instructions to the jury, and in denying a motion for a verdict in favor of the defendants (plaintiffs in error), in the sum of $16,021.70, with interest, etc. The action was…

This action was brought by the defendant in error, Anna Rogers, as admin-istratrix of the estate of her husband, Frank Rogers, deceased, to recover pecuniary damages resulting from the death of her husband, alleged to have boon caused by die negligence of the servants of the appellant 0. II. Bosworrh. who was at the time receiver of and engaged In the operation of the railway of the Chicago, Peoria & lit.

<p>Corporation — Liability op Stockholder for Corporate Debt.</p> <p>Tin? statutory liability of a shareholder in a Kansas corporation for the corporate debts follows the stock, so that one who holds stock when judgment is rendered against: the corporation is liable therefor, although he owned no stock when the debt accrued for which the judgment, was rendered.</p>

<p>1. Negligence- — Provino® of Court and Jury.</p> <p>When, in an action of negligence, the facts are undisputed, and such ihat all reasonable minds musí draw the same conclusion from them, it is the duty of the judge to say, as matter of law, whether or not they make a case of actionable negligence.</p> <p>2. Same.</p> <p>in all actions of negligence there is a preliminary question, which the judge must decide: Whether, granting to the testimony all the probative for< e To which it is entitled, a jury can properly and justifiably infer negligence from the facts proved.</p> <p>3. Same — Questions fob Jury.</p> <p>In all actions founded on negligence, whenever the facts are in dispute or conflicting, or the credibility of witnesses is involved, or the preponderance of testimony, and wherever the facts admitted or not denied are such that fair-minded men might draw different inferences from them, it is á case for a jury.</p> <p>4. Master and Servant — Negligence of Railroad Company — Safety of</p> <p>Roadbed.</p> <p>It is the duty of a railroad company to provide a safe track and roadbed, and not to expose its employes to any perils or hazards against which they may be guarded by proper diligence.</p> <p>5. Same — Degree of Care Required.</p> <p>The degree of care required from a railroad company in respect to the condition and equipment of its tracks and roadbed is to be measured by the exigencies of the situation, and will often depend upon the situation of the road and the topography of the ground.</p> <p>6. Same — Assumption of Risks.</p> <p>RmployGs of a railroad company whose road runs through a land of steep grades assume greater risks than if upon level lands.</p> <p>7. Same — Evidence—Question for Jury.</p> <p>Plaintiff was injured by the derailment of a train at a sharp curve at the foot of a steep grade. It appeared that there had been previous accidents at the same place from'the same cause. Theie was evidence that a guard rail at that point would be a great safeguard. Held, that a question of fact'was presented for the jury, whether plaintiff was subjected to any increased or unnecessary danger through lack of some appliance</p> <p>. which would have prevented the derailment.</p> <p>3. Same — Presumptions.</p> <p>The happening of a railroad accident does not of itself prove negligence, but, where it reveals defects such that ordinary diligence and care would have discovered and prevented them, the company cannot be free from the imputation of negligence in failure to adopt some safeguards or preventive remedies in proportion to the imminency of the danger.</p> <p>9. Same — Negligence—Accident.</p> <p>If an injury is the combined result of accident and negligence, the fact that the contributing cause was pure accident would not exonerate a defendant, if guilty of a want of ordinary care by which the result of the unavoidable calamity might have been essentially mitigated.</p> <p>Goff, Circuit Judge, dissents generally on the facts.</p>

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

This .was an indictment against J. A. Culp for using the mails to defraud. Defendant, having been convicted in the district court, sued out this writ of error.

This was an application to the circuit court, by an importer, for a review of a decision of the board of general appraisers reversing the decision of,the collector of the port of New York in the classification for duty of certain merchandise invoiced as “Diamond Steel.” The collector assessed a duty of 35 per cent., under paragraph 177 of ilm tariff act of August 28,1894, and the importer protested, claiming that the duty should have been levied at the appropriate rate,…

This was a suit in equity by the Consolidated Car Heating Company against the American Electric Heating Corporation, the West End Street-Railway Company, and certain individuals, for alleged infringement of letters patent No. 500,288, issued June 27, 1893, to the complainant, as assignee of James F. McEIroy.

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

<p>Criminal Law — Appeal—Confession of Error.</p>

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

The defendants, Marshall Hariston'and wife, executed their note for the sum of $5,275, due five years after date, attaching thereto semiannual interest coupon notes. To secure the payment of these notes, they executed a trust deed to the-complainant, the Jarvis-Conklin Mortgage Company, upon their plantation.

This is an interlocutory order accepting the resignation of the receiver, providing for the appointment of his successor, and the denial of motions to make certain new parties and to declare the bond forfeited.

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

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

<p>Bill by the American Freehold Land-Mortgage Company of London, Limited, against Hul-dah A. Potter.</p>

<p>Municipal Corporations — Use of Streets — Franchises—Withdrawal—Ordinances — Construction.</p> <p>This is a suit for injunction. The complainant, Howard C. Levis, trustee, seeks to have the authorities of the city of Newton, Iowa, enjoined from enforcing an ordinance for the removal, from the streets, of the poles and wires of the Newton Electric Company. At the hearing for preliminary injunction, a demurrer to the bill was overruled. 75 Fed. 884. Defendant appealed, and the action of file court in granting a preliminary injunction was sustained, and tlie ease remanded for final determination. 25 C. O. A. 161, 79 Fed. 7:15. Defendants again file demurrer, wliicli is overruled, and reference made to -the former decision. 75 Fed. 884.</p>