Volume 83 — Federal Reporter

This was a bill in equity by the Pullman’s Palace-Car Company against the Central Transportation Company. In the circuit court a decree was rendered, in favor of the latter company on a cross bill, and Hie cause referred to a master to ascertain the value of the property in question. 65 Fed. 158. On the coming in of the master’s report, the circuit court approved his findings and conclusions of law, and decreed accordingly. 72 Fed. 211.

<p>Circuit Court of Appeals — Jurisdiction—Original Orders.</p> <p>A circuit'court having ordered an injunction to issue, an appeal was taken, a.al thereupon it directed that the injunction should not issue until further order. Application was then made to the circuit court of appeals for an original order directing the court to vacate this latter order. HeZcZ, that the appellate court could give no such directions, as its jurisdiction is only appellate, and it can act upon the court below only by mandate.</p>

This was a suit in equity by Walter Baker & Co., Limited, against W. H. Baker, for infringement of a trade-mark. The circuit court, after a final hearing, granted a perpetual injunction. 77 Fed. 181. The present appeal is taken by the defendant from an order refusing to modify the decree in certain respects, and also refusing to dissolve the injunction.

This was a suit by the Independent District of Pella against R. R. Beard, receiver of the First National Bank of Pella, to establish a preferred claim against the funds in the hands of the receiver.

<p>1. Corporations — Action by Stockholder — Failure to Apply to Corporation.</p> <p>A shareholder cannot mainlnin a suit to compel the surrender to the corporation of stock illegally transferred, the repayment of dividends paid thereon, and to prevent (he further payment of dividends, unless he has first applied to the corporation itself to remedy the wrong.</p> <p>2. Equity Pleading — Demurrer—Truth op Fact Alleged.</p> <p>On a demurrer to the bill 1he court is not precluded from examining the entire record in the cause for aid in determining the actual verity of a mere bald allegation that a certain thing will be done by another, unaccompanied by any circumstances giving it weight or credence.</p>

<p>1. Federad Jurisdiction — Citizenshid—Necessary Parties.</p> <p>S., a married woman, had a beneficial life interest in certain property held hy a trustee, and a power of testamentary appointment. She convoyed the property to McW., and by will appointed it to complainants and H. Held, that if, under the laws of Tennessee, her interest was a mere life estate, complainants, being' citizens of another state, could maintain a suit in the federal court in Tennessee to enforce their rights against the personal representative of the trustee, and McW., citizens of Tennessee, without joining the personal representative of S., or the- cither appointee, being citizens of Tennessee.</p> <p>S. Winns — Bequest of Personalty in Trust.</p> <p>A bequest of personalty to a trustee for the use and benefit of another, without words of restriction, vests the absolute property in the fund in the beneficiary.</p> <p>3. Same — Limitation Over.</p> <p>In a bequest of personal property to a trustee, words of limitation over are to be construed, if possible, in harmony with the general intent of the testator to give an absolute property to the beneficiary.</p> <p>4. Wife's Separate Estate — Power of Disposition.</p> <p>Under the former law of Tennessee, a married woman had no power during coverture to dispose of her separate estate except as provided by the instrument creating it; and, if no mode was provided, her power to dispose of it at all was doubtful.</p> <p>5. Same.</p> <p>Under the Tennessee act of 18S9-70 (Mill. & V. Code, § 3350), conferring upon married women the power of disposition of property settled for their separate use unless expressly withheld, the mere mention of one mode of disposition does not exclude others.</p> <p>6. Same — Statutory Provisions.</p> <p>The Tennessee act of 1809-70 (Mill. & V. Code, § 3350), relating to disposition óf separate property by married women, applies to settlements made before as well as after its passage.</p>

<p>1. Equity Pleading — Waiver of Answer under Oath — Exceptions to Answer.</p> <p>The waiver of an oath to the answer merely affects the evidential character and value of the answer, and does not operate as a waiver of complainant’s right to except thereto for failure to answer interrogatories.</p> <p>2. Same — Interrogatories.</p> <p>In a patent infringement suit, where one of the issues is as to infringement or noninfringement, interrogatories attached to the bill, which require disclosures going directly to this issue, cannot be objected to on the theory that the bill is for a discovery in aid of an accounting, and that, if any of the defenses set up prevail, the answers would be unnecessary, and therefore ought not to be required at that stage of the case.</p> <p>3. Same.</p> <p>Equity rule 39, which dispenses with a full answer in cases where defendant might, by plea, protect himself from answer and discovery, will not protect a defendant in a patent suit from answering fully to interroga,torios, where he has set up every possible defense, on the theory that each of these defenses might have been set up by a plea; for the proper office of a technical plea is to interpose some conclusive defense which may determine the suit without a hearing on the merits.</p> <p>4. Same — Discovery.</p> <p>Though bills of discovery are not now as necessarily and commonly resorted to as formerly, when parties were disqualified from testifying, yet discovery is still permissible, and is an invaluable aid in the administration of equitable remedies, in order to search the consciences of the parties, and thereby the more readily reach and deal with the very matter in dispute.</p>

<p>1. Unfair Competition in Trade.</p> <p>Complainants’ assignors contracted with. Thomas A. Edison for the manufacture by him of a certain number of machines, invented by Edison and another, for projecting apparently living figures on a screen. To distinguish these machines from others made for like purposes, they had coined the word “Vitascope,” and it was agreed between the parties that they might call them “Vitascopes” or “Edison Vitascopes.” Complainants failed to take and pay for all of said machines according to the contract, and thereafter Edison sold the machines not taken to reimburse himself for their cost. Held., that the purchasers from Edison, in offering these machines for sale as “Edison Vitascopes,” were not guilty of unfair competition with complainants, since there was no misleading or deception of the pub-lie, who in fact obtained the identical machines to which the name was intended to apply.</p> <p>2. Same.</p> <p>The grounds on which unfair competition in trade will be enjoined are either that the means used are dishonest, or that, by false representation ox-imitation of a. name or device, there is a tendency to create confusion in the trade, and work a fraud upon the public, by inducing it to accept a spurious article. Where these grounds are absent, and no trade-mark rights exist, injunction does not lie.</p>

<p>1, Deeds — Suit to Cancel — Undue Influence — Pleading.</p> <p>When a deed is attacked on the ground of fraud in the grantee, by taking advantage of confidential relations between the grantor and himself, where Hie confidential relations are admitted, the burden is on the grantee to show that the grantor was not influenced thereby; and an answer stating that defendant does not know whether or not “she yielded to the persuasions or solicitations or directions, so fraudulently, as alleged, made by him, on account of or by reason of her said alleged confidence in Mm,” etc., is to be construed as an admission that the conveyance was made as a result of the confidential relations, persuasions, etc.</p> <p>2. Same.</p> <p>A deed obtained from a person of weak mind, while she was In a home for inebriates, in consideration of a debt due her grantee, and of a further advance made by him to relieve her pressing need of money, while acting as her agent and confidential advisor, Is void, in the absence of any affirmative showing that she was not influenced by her relations with the grantee, and that she acted upon independent advice.</p> <p>8. Accord and Satisfaction — Consideration.</p> <p>Where a deed made in consideration of an existing debt and further advances is void because of confidential relations and undue influence, such debt and advances are a sufficient consideration to support a subsequent agreement of accord and satisfaction, made between the grantee and the grantor’s heir after her death.</p>

<p>1. Restraint of Trade — Combination of Patentees.</p> <p>Numerous manufacturers, under various United -States patents, of float spring-tooth harrows, agreed to organize a corporation, to assign to it ail the patents thus owned or thereafter to be acquired, and the good will of their business, and not to be interested in the manufacture or sale of such harrows except as agents or licensees of the corporation; that the corporation should license them to manufacture and sell, for their own account, subject to uniform terms and conditions, their respective makes, and should not itself manufacture or sell; that each licensee should pay one dollar for each such harrow manufactured and sold by him, and should receive paid-up stock in return for the patents and good will. Those who entered the agreement represented 70 per cent, of the total manufacture and sales of the United States. The corporation was formed and the assignments made. The licenses issued also bound the licensees not to cut prices, not to sell other float spring-tooth harrows except under the licenses, and provided liquidated damages for every breach. Held, that the arrangement was an unlawful combination in restraint of trade.</p> <p>2. Same.</p> <p>Though the fact that several patentees are exposed to litigation, justifies them in composing their differences, they cannot make the occasion an excuse or cloak for the creation of monopolies to the public disadvantage.</p>

<p>1. Bill for Injunction — Interest of Complainants — Apprehension of Loss.</p> <p>Bondholders seeking relief, by injunction, against the enforcement of an ordinance fixing rates of fare on a street railroad, have sufficient interest In the matter to give them a standing in court, if they show a well-grounded apprehension of loss by the enforcement of the ordinance.</p> <p>2. City Charter — Extent of Authority — Fixing Fares on Street Railroad.</p> <p>A provision in the charter of a city authorizing It to “pass all by-laws concerning carriages, wagons, carts,” etc., “and every by-law, ordinance and regulation it may deem proper for the peace, health, order or good government of the city,” does not authorize it to pass an ordinance fixing rates of fare on a street railroad.</p> <p>8. Charter of Street Railroad — -Fares Subject to Municipal Approval— Power to Fix Rates of Fare.</p> <p>A proviso in a street-railroad charter, “that the rates of faro and freight upon said railroad shall be subject to the approval of the mayor and city council,” is not sufficient authority to the city to enact an ordinance fixing such rates of fare.</p> <p>4. Same — Exercise and Exhaustion of Power.</p> <p>A city deriving from the charter of a sireet-railroad company its only authority to fix rates of fare thereon exhausts such power by prescribing maximum rates in the ordinance authorizing the use of its streets for the construction and operation of such road.</p> <p>6. Same — Construction of Statute — Authority to Fix Fares.</p> <p>Laws Ga. 1890-91, p. 169, validating the charter of the Atlanta Consolidated Street-Railway Company and other street railroads of the state, provides that such roads shall be liable to such “regulations” “as are other railroads and street-railroad companies incorporated by separate act or acts by the laws of this state.” The charter of one street railroad, incorporated by separate act, authorized the city of Augusta to regulate rates of fare and freight thereon. Held not sufficient to authorize the city of Atlanta to fix rates of fare.</p> <p>6. Same — Reservation of Right of Control.</p> <p>A reservation in an ordinance granting the use of streets for a street railroad that s-uch road shall be “subject to all the laws and ordinances now in force, and such as may be hereafter made,” does not authorize the city to pass an ordinance fixing rates of fare on such road, unless it is, either expressly or by necessary implication, thereto authorized by some law of the state.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nevada.</p> <p>A proceeding was commenced by J. M. Douglass and others, the appellees in this case, in the district court of the state of Nevada, under a statute of that state entitled “An act to encourage the mining, milling, smelting, or other reduction of ores in the state of Nevada,” approved March 1, 1875 (St. 1875, p. Ill; Gen. St. §§ 250-273), to condemn' a right of way for a mining tunnel 7y2 feet wide by 7% feet high from tlie mine known as the “Contact Mine,” through five intervening mining claims and locations, namely, the Atlantic, the Annie, the Bed Jacket, the South End, and the Clinton, to the Goodman mine. The appellants removed the cause to the circuit court of the United States for the district of Nevada, and under said proceedings in said circuit court commissioners were appointed to assess damages to the owners of the property appropriated to the use of said tunnel, and upon the report of said commissioners and the hearing of the objections of the appellants thereto the court confirmed the report, and entered and filed a decree appropriating to the use of the appellees the right of way through said mines, as applied for in the petition. 'Die appellants appealed from said decree, and assign as error, first, that in and by said proceeding there was condemned to the use of the appellees a tunnel 648 feet in length, running through a portion of the Atlantic Consolidated mine, and having its mouth in the Contact mine, Which tunnel belonged to and was a part of the Atlantic Consolidated mine, and was the most convenient means for working the same; and had been for many years used by the owners of the Atlantic Consolidated mine, and was not subject to condemnation under said act of the legislature of Nevada, for the reason that no authority is given by said act to condemn the tunnel of one person, constructed and used for mining purposes, for the use of another for the same purpose. The facts in regard to the tunnel which belonged to the Atlantic mining claim are these: The commissioners, in’ surveying a tunnel through the mining claims intervening between the Contact claim and the Goodman claim, followed and appropriated for a portion of the distance the tunnel so referred to in the assignment of error. A portion of that tunnel had been constructed in 1860 or. 1861, for the purpose of furnishing water to Silver City. Subsequently its use for that purpose was abandoned, and as early as 1866 it was used for prospecting and working the Atlantic claim. It traversed the Atlantic claim, and had its mouth on an adjoining claim, which was first known as the “Cadiz Claim.” The Cadiz claim and the Atlantic claim belonged originally to the same owners. They permitted the Cadiz location to revert to the United States, and it was subsequently relocated by others. In 1890 it was relocated by C. E. Brown, under the name of the “Contact Mine.” The tunnel was used for mining purposes as late as the year 1877, or- perhaps 18S1. After that date no work appeal's to have been done in the tunnel, except to tills extent: that in 1887, the tunnel being out of repair, an agent who was in possession of the Atlantic mine and tunnel on behalf of the owners began to repair the tunnel, but ¡Shortly afterwards, on consultation with the owners, axipears to have abandoned it, for the reason that it was more feasible to construct a new tunnel than to. repair the old. In 1887 he commenced the construction of a new tunnel. Since that date the old tunnel was not used, but was allowed to fall into decay. In their report the commissioners in these proceedings awarded to the owners of the tunnel, so far as the same was situate in the Atlantic mine, to wit, 349 feet, the sum of $1,021.95.</p>

<p>1. Trusts — Innocent Purchasers of Trust Estate — Corporation Issuing Stock in Payment.</p> <p>Tbe trustees of a trust for complainant’s benefit conveyed the property, in violation of the provisions of the unrecorded trust instruments, to a corporation organized by them for that purpose only, and which issued to them in exchange nearly all its stock. In a suit to charge the trust on the land, held, that under Civ. Code Cal. §§ 869, 2243, relating to purchasers from trustees, the stock issued for the land constituted the corporation a purchaser for value.</p> <p>2. Corporations — Dealings with Stockholder — Notice.</p> <p>A corporation purchased land from two persons, who held the record title, and also owned most of the corporate stock. No one representing it, except one of the grantors, knew that it was affected by an unrecorded trust instrument. Held-, that' as he was dealing for his own interest, and adversely to the corporation, his knowledge was not to be imputed to it, and that it was a purchaser without notice, under Civ. Code Cal. §§ 869, 2243.</p> <p>3. Wrongful Conveyance by Trustee — Innocent Purchaser.</p> <p>The beneficiary of a trust in lands took no steps to enforce it for three years after notice, and never had the deeds recorded. The trustee wrongfully conveyed it to a purchaser for value and without notice. Held that, as between him and the beneficiary, the latter should be the sufferer.</p> <p>4. Same — Corporations.</p> <p>In applying the principle that, as between two innocent parties, an injury effected by the wrongful act of a third party should be suffered by him whose negligence made the wrong possible, the court may look behind the corporate character of the other party, and take notice of the fact that an individual who has bought its stock is a real party in interest.</p> <p>5. Trust Deeds — Acknowledgment and Recording.</p> <p>Although an instrument charging a trust upon lands in California be unacknowledged, yet it may be recorded upon proof of its execution. Civ. Code Cal. §§ 1161, 1183, 1195, 1198, 1199.</p> <p>6. Same — Imputed Negligence.</p> <p>If an instrument creating a trust in lands cannot be recorded for want of an acknowledgment, this defect, as due to the negligence of the creator of the trust, is imputable to the beneficiary, and does not excuse the failure to record it, as against a purchaser for value and without notice.</p> <p>7. Fraud of Trustee — Rights ok Beneficiary.</p> <p>Where trustees wrongfully convey lauds to a purchaser for value and without notice, the beneficiary may recover from the trustee the consideration received by him.</p> <p>8. Corporations — Suit to Charge a Trust on Lands — Procedure.</p> <p>In a suit to charge a trust on lands of a corporalion, and for a receivership, and an accounting by individuals, the land was held to be free from the trust. Numerous creditors intervened and proved their claims against, the corporation, and receiver’s certificates required payment. Held-. 1hiu\ while an accounting by the individual defendants should be decreed, tills need not delay 1ho sale of the property, and its application to pay the certificates and debts.</p>

<p>Carriers of Passengers — Ejection from Moving Train — Personal Injuries.</p> <p>A mere requirement or command by a conductor to a passenger to get off a moving train, when the danger of doing so is evident, if unattended with force, threats, or overpowering intimidation, is not enough to make the railroad company liable for injuries resulting from the passenger’s compliance.</p>

This suit was instituted by Emma Peters, the defendant in error, against the Covenant Mutual Benefit Association of Illinois, the plaintiff in error (hereafter termed the “Association”), on two benefit certificates issued by said association to her deceased husband, Frederick R. Peters, each of which certificates obligated the association to pay to said Emma Peters a sum not exceeding $5,000 within 90 days after receipt of evidence of the death of her said husband.

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

This is an action in assumpsit upon the common counts, brought by tiie York Iron Ooinpany to recover Cor 300 tons No. 2 soft Minneapolis pig iron, alleged to have been sold to the plaintiff in error through the agency of Forsyth, Hyde & Co., at the price of $15 per ton.

<p>Sai/e — Warranty or Titi.e — Evidence.</p> <p>In an action to recover damages for alleged, breach of warranty of title ui>on a sale of certain locomotives, held, on the evidence, consisting of certain correspondence between the pieties, that the sale was not made by defendants to plaintiffs, but to a railroad company, from which plaintiffs subsequently purchased, and that defendants were therefore not liable because of a failure of title.</p>

This was an action at law by Serette O. Freeman and others, being the widow and three minor children of T. A. Freeman, against the Northern Pacific Railroad Company, to recover damages on account of his death. In the circuit court there was a verdict and judgment for plaintiffs, and the defendant sued out this writ of error.

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

<p>1. Review on Error — Findings of Fact.</p> <p>Where, under a stipulation, a ease is tried by the court without a jury, the facts found by the court are not open to review in the circuit court of appeals.</p> <p>2. Bailment — Goods in Railroad Depot.</p> <p>While a railroad company which has carried property for hire is keeping it for a reasonable time in its own warehouse, at the point of destination, until it shall be called for, it is a bailee for hire, and not a naked depository.</p> <p>3. Carriers — Negligence—Goods in Warehouse — Destruction by Fire.</p> <p>A railroad company holding property in its warehouse as a bailee for hire allowed a car marked “Powder,” which was in fact empty, but locked, to be placed in close proximity thereto. The warehouse caught fire, and the property was destroyed solely because the firemen were prevented, through reasonable fear of the powder car, from extinguishing the fire. Eelii that the company was liable for the loss.</p>

<p>This was an action at law by William F. Joy against the Glidden Varnish Company to recover compensation for services alleged to have been rendered under a contract. The case was heard upon demurrer to the declaration.</p>

<p>1. Receivers of Corporations — Liability for Torts.</p> <p>A receiver of a corporation, appointed, in an action to foreclose a mortgage, is not liable for a tort committed by tbe corporation prior to the receivership.</p> <p>2. Same — Parties.</p> <p>In an action to recover damages for a tort committed by a corporation prior to the appointment of a receiver, the latter is not a proper party.</p>

<p>1. Landlord and Tenant — Covenant to Repair — Measure op Damages.</p> <p>A lease contained a covenant by the lessee that upon the termination thereof he would deliver up certain parts of the property “in as good repair as the same now are, or to pay to” the lessor “a sum sufficient to put said parts in such repair.” In an action for damages for a breach, held, that the landlord was entitled to a sum sufficient to make the repairs stipulated for, and that, if this could only be done by the use of new materials, no deduction should be allowed the tenant on that account, and that in such case the landlord would not be restricted to the difference between tile value of the property when received by the tenant and its value when surrendered.</p> <p>2, Same — Agreement to Arbitrate.</p> <p>A lease contained a provision that if the parties could not, at the termination of the lease, agree upon the condition of the properly, or the sum to be paid by the lessee under his covenant to surrender the premises in good repair, or to pay a sufficient sum to make repairs, they should submit the dispute to arbitrators, and be bound by their finding. In an action by the lessor for damages for a breach, held, that this clause afforded no defense, it never having been acted on by the parties.</p> <p>8. Evidence — Value—Origin al Cost.</p> <p>Evidence of the original cost of an article is relevant upon the question of its value at a subsequent period. .</p>

The writ of error is sued out by the United States, the defendant in the court below. Samuel A. Swiggett brought suit against the United States to recover the sum of $609, money expended by him for the necessary rent of the land office of the United States in and for the Helena land district, Mont. The United States filed an answer denying, among other things, that any money had been appropriated by the United States for the payment of the rent of said office.

<p>This was an action at law by John Porter against John I. Blair to recover damages alleged to result from breach of contract. The case was heard on demurrer to the amended petition.</p>

<p>In Error 1o the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>These were actions of ejectment, brought by tbe Forest Oil Company against the several defendants, all of whom claimed title under the will of William Crawford. The circuit court, upon an agreed statement of facts, directed verdicts for the defendants, and the plaintiff brought the cases here on writ of error.</p>

<p>This was an action at law by the French republic and others against the World’s Columbian Exposition.</p>

This action was brought by John F. Monahan, the defendant in error, to recover of John Godkin, the plaintiff in error, the contract price for curling and hauling certain logs under a written contract dated October 11, 1892.

<p>Railroads — Injuries to Person on Track — Contributory Negligence.</p> <p>To stand or walk on a railroad track, or so near thereto as to be in the way of a passing train, is negligence such as to warrant the court in directing a nonsuit and in refusing to admit evidence of negligence on the part of the company.</p>

This snit was brought by Charles D. Rathbone, the plaintiff in error, against the board of county commissioners of Kiowa county, Kan., the defendant in error, upon 92 coupons detahhed from 46 railroad aid bonds which were issued by Kiowa county, Kan.

<p>1. Limitation of Actions — Amendment to Petition — New Cause of Action.</p> <p>Where an action is begun before expiration of the period of limitation, an amendment of the petition, after the expiration of such period, whereby the plaintiff, instead of suing for his own benefit., alleges that he sues by the authority and for the use {ind benefit of a third party, does not change the cause of action so as to subject the suit to the bar of the statute.</p> <p>2. Cross-Examination — 1íei>i-,titk>x of Questions — Discretion of Court.</p> <p>The refusal of the court to permit counsel on cross-examination to repeat a question which has already been asked and answered three or four times is not erroneous.</p> <p>3. Appeal and Error — Decision on Motion for New Trial.</p> <p>The refusal of a federal court to grant a new trial is not assignable as error.</p>

<p>Exclusion of Chinese — Wife of Merchant — Certificate of Bight to Enter.</p> <p>The wife of a Chinese merchant residing in this country, not belonging to the laboring class, is not a person excluded by the laws, and upon arrival here is entitled to enter and take up her residence with her husband, without producing the certificate prescribed by 1 Supp. Bev. St. (2d Ed.) p. 459, § 6. Jn re Li Foon, 80 Fed. 881, disapproved.</p>

<p>This was a petition by Gut Lun, a Chinese person, for a writ of habeas corpus to release her from confinement under a judgment of deportation.</p>

<p>1. Chinese Laborers- — Certifícate of Residence — Restaurant and Lodging-House Keeper.</p> <p>Tlie words “Chinese laborers,” in tlie act of November 3, 1893 (28 Stat. 7, § 1), amending the act of Alay 5, 1892 (27 Stat. 25, § 0), and relating to certificates of residence, include a Chinaman engaged in the business of beeping a restaurant and lodging house, and all 'Chinese persons, dependent upon their labor for self-support, whether actually employed as laborers or not.</p> <p>2. Same.</p> <p>The status of a Chinese “laborer” under the acts relating to deportation was not changed by his arrest upon a criminal charge, and his subsequent enforced idleness in jail.</p>

<p>This was a proceeding in habeas corpus in behalf of one Yee Gee, who was committed to await the action of the grand jury on a charge of offering to bribe, etc.</p>

This was. a petition for a writ of habeas corpus by Wong Bing, a Chinese person. The cause was heard upon exceptions to the report of a special referee.

<p>1. Federal Convicts in State Prisons — Rule of Credits.</p> <p>A prisoner confined in a penitentiary of New York state for an offense against the United States is not entitled to an unconditional allowance for good behavior, under Rev. St. § 5543, but to the same rule of credits applicable by the law of the state to other prisoners in the same penitentiary, under section 5544.</p> <p>3. Same — Conditional Commutation — Second Optense.</p> <p>H the sentence of such a prisoner be commuted, and between the date of his discharge and the date of expiration of his full original term he is convicted of any felony, even though not for an offense against the United Stales, he must, under Rev. St. § 5544, incorporating, by reference, Laws X. Y. 1,886. c. 21, serve in the place wiiere confined for the later felony the unexpired term of Ms original sentence.</p>

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

<p>This was an application by John W. Oonsidine for a writ of habeas corpus.</p>

The petitioners, being special employés of the treasury department of the United States, assisted in searching the premises of one Yee Gee, at Port Townsend, under a search warrant issued by a United States commissioner. At the time of the search, certain papers, supposed to contain incriminating evidence against Yee Gee, were seized.

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

<p>J. Customs Duties — Classification—Hemstitched Initial Handkerchiefs.</p> <p>Cotton hemstitched handkerchiefs, with an initial embroidered thereon, were dutiable under the act of October 1, 1890, as “handkerchiefs composed of cotton or other vegetable fiber,” under paragraph 349, Schedule I, and not as “embroidered and hemstitched handkerchiefs,” under paragraph 373. IT. S. v. Harden, 15 C. O. A. 358, 68 Fed. 182, approved.</p> <p>2, Same — Evidence of Commercial Designation.</p> <p>In determining whether hemstitched handkerchiefs, with a single initial embroidered thereon, are “embroidered and hemstitched handkerchiefs,” in the meaning of the tariff law, it is proper to admit evidence that the goods in question were commercially known as “hemstitched initial handkerchiefs,” and that “embroidered and hemstitched handkerchiefs” was a commercial designation for a well-known class of goods, from which such initial handkerchiefs wore excluded.</p>

This was a suit in equity by the Strom Manufacturing Company against the Weir Frog Company for alleged infringement of the Alkins patent, No. 352,286, for an improvement in rail braces. On a demurrer to the bill, the circuit court held that the patent was invalid on its face for want of patentable invention, and accordingly entered a decree dismissing the bill. 75 Fed.- 279. From this decree the complainant has appealed.

<p>This was a suit in equity by the A. J. Phillips Company against the Owosso Manufacturing Company for alleged infringement of a patent for improvements in window-screen frames.</p>

This is a suit in equity by the Wilcox & Gibbs Sewing-Machine Company against the Merrow 3 la chine Company and others for alleged infringement of letters patent Nos. 472,094 and 472,095, for-sewing machines making an overseam; the former being for a single-thread and the latter for a double-thread machine.

This was a suit in equity by O. S. Kelly and others against the Springfield Kailway Company and others for alleged infringement of a patent. The cause was heard on defendants’ motion to include in the taxation of costs certain items of expense.

<p>1. Patents to Mineral Lands — Suit to Cancel — Surveyor General’s Certifícate.</p> <p>In a suit by the government to cancel a patent to a mining claim on the ground of false and fraudulent representations, it appeared that R. and D., certain third parties, had made a joint affidavit, alleged to be fraudulent, which was filed June 24,1880, showing that the value of labor and improvements exceeded 3500. The requisite certificate of the surveyor general, filed June 29, 1880, certified to the same fact, “as appears by the testimony of two disinterested witnesses.” Held, that there wras nothing to show that these “.two witnesses” were R. and D.</p> <p>2. Same — Sufficiency of Labor and Improvements.</p> <p>The sufficiency of the character and value of labor and improvements made upon the premises by an applicant for a mineral patent, under Rev. St. § 2325, is to be determined by the surveyor general from his own observations or those of his deputy, or from the testimony of persons having knowledge of the subject.</p> <p>3. Same — Presumptions.</p> <p>Where a surveyor general has certified in due form to the value of labor and improvements upon a mineral claim, under Rev. St. § 2325, the presumption is that he did his duty as an officer.</p> <p>4. Same — Burden and Character of Proof.</p> <p>In a suit by the government to cancel a patent to a mining claim on the ground of fraud, the presumption that it was correctly issued can be overcome only by clear and convincing proof of the false representations whereby it was secured.</p>

This was a suit in equity by the Independent Electric Company against the Jeffrey Manufacturing Company, Joseph A. Jeffrey, and Charles W. Miller for alleged infringement of a patent for improvements in mining machinery. In t'he circuit court the patent was sustained, and a final decree for an injunction and accounting ordered. 76 Fed. 981. The defendants have appealed.

This was a suit in equity by the Consolidated Store-Service Company against John W. Wilson and others for alleged infringement of two patents relating to cash-carrier or store-service apparatus. The cause was heard on a motion for preliminary injunction.

This was a suit in equity by the Thomson-Houston Electric Company against the Athol & Orange Street Railway Company for alleged infringement of two patents relating to electric railway motors.

<p>This was a suit in .equity by the Campbell Machine Company against the Eppler Welt Machine Company for alleged infringement of two patents, for improvements in wax thread sewing machines.</p>

This was a suit in equity by the Gage-Downs Company against the Peatlierbone Corset Company to enjoin the use of certain marks and labels upon its goods. The cause was heard on a motion for preliminary injunction.

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

<p>In Admiralty. Libel in rem by Gaston Jacobi and Charles Buffi against the steamer Eugene, to recover passage money, and damages for breach of contract to carry the libelants, with their baggage, from Seattle, via St. Michaels, in Alaska, to Dawson City, in the Northwest Territory. Heard on exceptions to the libel.</p>

<p>1. Federal Jurisdiction — Allegations op Citizenship — Burden of Proof.</p> <p>Where a plaintiff’s pleading, in the federal courts, sets out the necessary diverse citizenship of the parties, the burden of both allegation and proof to the contrary r«3ts upon the party who seeks to defeat the jurisdiction.</p> <p>2. Same — Defect oe General Denial.</p> <p>A general denial, in a federal court, is a plea to the merits, and does not put in. issue averments of citizenship, upon which, the jurisdiction depends. The matter of jurisdiction is waived unless it is challenged by a special plea. 8. Appeal and Error — Review—Bill op Exceptions.</p> <p>To enable the circuit court of appeals to review the action of the circuit court upon the admission or exclusion of evidence, the evidence to which the exception is directed must be incorporated in the bill of exceptions.</p> <p>Í. Same — Harmless Error.</p> <p>It is not error to exclude, upon a trial, cumulative evidence of a state of facts which is not controverted.</p> <p>5. Same — Trial to Court — Special Findings.</p> <p>In order that the opinion of tho court, in a case tried without a jury, may be treated as a special finding of facts, so that assignments of error may be based thereon, its statement of the facts found should not be mingled with the evidence, or with discussions of law or the reasons for the court’s conclusions.</p> <p>6. Same — Assignments op Error.</p> <p>Upon a writ of error the objection that the circuit court made neither general nor special findings of fact cannot be considered, unless raised by the assignment of errors.</p>

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

This was a suit in equity by Voorhees, Miller & Oo. against William M. Blanton and others to set aside certain conveyances alleged to have been made in fraud of creditors.

<p>Costs — Attorney’s Fee — Depositions.</p> <p>Under Rev. St. § 824, an attorney's fee of 82.50 for eacli deposition is not taxable until the deposition lias both been taken and admitted in evidence.</p>

• This was a suit in equity by George G. Carey, as trustee, etc., against John E. Roosevelt and others, as trustees and legatees under the will of Amos Cotting, deceased, to enforce payment of a judgment previously rendered against the administrator c. t. a. of said Cotting’s estate. The cause was beard on demurrer to the amended bill. The demurrer to the original bill was sustained and the complainant had leave to amend.

<p>1. Charities — Validity of Bequest.</p> <p>A bequest for a public library and for a protectory for boys is a charitable bequest, and entitled to the benefit of Gen. St. Conn. § 2951. which provides that “all estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for the preservation, care and maintenance of any cemeteiy, cemetery lot, or of the monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall he granted, according to the true intent and meaning of the grantor, and to no other use whatever.”</p> <p>2. Same — Uncertainty.</p> <p>Such a bequest is not void for uncertainty as to the object, or for the want of a provision for the selection of the beneficiaries, the particular mode of carrying the intent of the donor into effect being left to the discretion of the trustees.</p> <p>3. Same — Failure to Provide for Supplying Vacancy tn Trusteeship.</p> <p>The failure of the testator to provide for the appointment of oilier trustees in case of the death of the trustees named or tlioir refusal to act does not invalidate the gift, the rule of law that in such an event other trustees are to he appointed by the court being substantially a part of the will.</p> <p>4. Same — Perpetuities.</p> <p>A direction to trustees to invest the trust fund for a term of 10 years or more at their discretion does not contravene the rule against perpetuities, as the trustees can he compelled to apply the fund to the use of the beneficiaries within a reasonable time after the expiration of 10 years.</p> <p>5. Same — Favorable Construction.</p> <p>Charitable trusts are entitled to a favorable construction in courts of equity.</p> <p>6. Same — Law of Testator’s Domicile.</p> <p>The validity of a charitable bequest is determined by tbe law of the testator’s domicile.</p>

<p>1. Interstate Commerce — Orders by Interstate Commerce Commission — Enforcement ry Court.</p> <p>In a proceeding in the circuit court under section 16 of the interstate commerce law to enforce an order made by the commission, the court has no general power to adjust differences between the litigants, or to correct abuses in the conduct by a railroad company of its business; and, unless a valid order has been made by the commission and violated by the company, no relief can be granted to the petitioners.</p> <p>B. Same — Powers of Commission — -Fixins Rates.</p> <p>The interstate commerce commission is not authorized to fix rates either absolutely or relatively; and where the commission has assumed to make an order fixing rates, and a proceeding is brought to enforce such order, it is the duty of the court to declare the same to be null and void.</p> <p>8. Same.</p> <p>An order made by the interstate commerce commission, which authorizes a railway company to make commodity rates on competitive traffic to terminal points, less than their rates on like traffic to an intermediate noncompetitive point, but directs that such commodity rates must not be lower than necessary to meet competition, nor be applied to articles not actually subject thereto, is a mere general statement of the duty of the railway company as defined by the law, and is too indefinite to be the basis of a decree by the court to enforce obedience.</p> <p>4. Same — Roads Operated by Receivers.</p> <p>When a court which has appointed receivers for a railroad company is called upon to enforce an order made before such appointment by the interstate commerce commission, it cannot treat the petition merely as an appeal to the court to regulate the conduct of its receivers in the receivership case, but must apply to them the same rules and principles which would be applied if the railroad were being operated and managed by the officers and agents of the corporation itself. The receivers have the same right to question the validity of the order made by the commission as would the railroad company.</p>

<p>This was a suit in equity by Richard T. Oox, as receiver of the First National Bank of Arlington, against George H. Beck and Joseph T. Beck, partners as Beck Bros., and the National Bank of Heppner, Or.</p>

<p>1. Survey of Public Lands — Meander Link of Lake — Boundary Line of Abutting Lands.</p> <p>Where a government survey lays down a meander line next to a lake, and the plat returned to the general land office, and referred to in the patents for identification of the lands granted, exhibits the granted tracts as bordering upon the lake, the waters of sueli lake, and not the meander line, Is the fixed boundary of the lands conveyed.</p> <p>2. Riparian Ownership — Nonnavigable Lakes — Minnesota Law.</p> <p>The law of Minnesota in regard to the rights of riparian owners Is the com-men law, and the rule applied by the common law to nonnavigable streams is applicable as well to nonnavigable lakes.</p> <p>3. Equity Jurisdiction — Remedy at Law — Resubvmy of Patented Lands— Enjoining Government Officials.</p> <p>Where a bill seeks to enjoin a resurvey, by government officials, of patented lands bordering on a lake, and it appears that it will result in ilie necessary destruction of much valuable timber, cast a cloud upon the title to lands for which the government lias already issued its patents, and involve the owner in a multiplicity of suits to defend and maintain his title, his remedy at law is inadequate, and equity will interfere to prevent the threatened trespass.</p> <p>4. Patented Lands — Control and Remedy of Government.</p> <p>When the government has parted with its title to public lauds by Issuing its patent iherefor, It lias no right or authority to further control over them. If fraud, wrong, or error has been committed, the government, like any other grantor, must resort to the court for redress.</p>

<p>1. Process — Service by Publication — Action in Personam.</p> <p>The sfalute of Missouri (Rev. St. § 2022) providing for bringing parties into court on orders of publication “in * * * all actions at law, or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within Hie jurisdiction of The court,” does not apply to a suit by a vendee to enforce the performance of a contract of purchase and sale of real property, if, instead of demanding, and offering to accept, such title as the defendant may have, he demands ns conditions precedent to a decree passing the title, Hint defendant be required to furnish him, as agreed, with an abstract showing a perfect title, and to pay him money damages resulting from the delay in performing the contract.</p> <p>2, Same— Form on Order.</p> <p>Even if the statute applied at all to an action thus restricted, its requirement that the order shall state briefly the “object and general nature” of the petition would not be satisfied by stating that it is “to obtain judgment for specific performance of a contract to convey” specified lands.</p>

This suit was commenced in a state court by the city of Muncie, Ind., to procure a writ of mandamus against the Lake Erie & Western Railroad Company, and was removed to this court by the defendant.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action at law by the National Bank of Oxford, Pá., against George L. Whitman, to charge him, as a stockholder, with the amount of a judgment obtained by plaintiff against a Kansas corporation. The circuit court directed a verdict for the plaintiff, and entered judgment accordingly (76 Fed. 697), and the defendant brought the case to this court on writ of error.</p> <p>The constitution of the state of Kansas provided prior to the year 1866, and still provides, in section 2 of article 12, as follows: “Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder; and such other means as shall he provided by law; hut such individual liabilities shall not apply to railway corporations, nor corporations for religious or charitable purposes.” Section 32 of chapter 23 of the General Statutes ol' Kansas of 1868, section 40 of the same chapter as amended in 1883, and section 44 of the same chapter, which are still the statutes of the state, provided as follows:</p> <p>Section 32: “If an execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; hut no execution shall Issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”</p> <p>Section 40, as amended: “A corporation is dissolved: First, by the expiration of the time limited in its charter; second, by a judgment of dissolution rendered by a court of competent jurisdiction; but any such corporation shall he deemed to be dissolved for the purpose of enabling any creditors of such corporation to prosecute suits against the stockholders thereof to enforce their individual liability, If it be shown that such corporation has suspended business for more than one year, or that any corporation so suspended from business shall for three months after the passage of this act fail to resume its usual and ordinary business.” Laws 1883, p. 88.</p> <p>Section 44: “If any corporation created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved, leaving debts unpaid, suit may be brought against any person or persons who were stockholders at the time of such dissolutions without joining the corporation to such suit; and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution for tlie recovery of the portion of such debt for which they were liable and the execution upon the judgment shall direct the collection to be made from property of each stockholder respectively, and if any number of stockholders (defendants in the case) shall not have property enough to satisfy his or their portion of the execution, then the amount of the deficiency shall be divided equally among all the remaining stockholders, and collections made accordingly, deducting from the amount a sum in proportion to the amount of stock owned by the plaintiff at the time the company dissolved.”</p> <p>The Arkansas Gity Bank was formed in 1886, under the laws of the state of Kansas, to do a banking and real-estate business with a capital of $20,000, divided into 2,000 shares of $100 each, and was located in Arkansas City, in said state. The original stockholders, their residences, and the number of the. shares of each stockholder were as follows: George L. Whitman, New York City, 1,000 shares; Samuel Newell, New York City, 649 shares; James L. Huey, Arkansas City, 349 shares; Mary L. Newell, New York City, 1 share; Mary E. Huey, New York City, 1 share. In 1889 the name of the bank was changed, and became the Arkansas City Investment Company. In December, 1890, it made a general assignment for the benefit of its creditors, and from that time completely suspended its business, and thereafter, at the expiration of one year, was deemed to be dissolved under the provisions of section 40 for the purpose of enabling, its creditors to sue its stockholders. About four months before its failure it indorsed and guarantied for value two promissory notes, together amounting to $4,875, which were discounted by the plaintiff, the National Bank of Oxford, located in Pennsylvania. The assignee made payments upon these notes from time to time, but in 1895 the plaintiff duly obtained judgment against the bank, in a state court of Kansas, for the sum of $3,468.30, the bank having appeared, and having made answer to the complaint. An execution upon this judgment was returned to court wholly unsatisfied, and it appeared that the bank had at that time no assets or property. The plaintiff thereupon brought an action at law in the circuit court for the Southern district of New York against the defendant George L. Whitman, being the owner of 1,000 shares of the stock of this bank, to recover from him the amount due to the plaintiff from said bank. The complaint in the action alleged all the foregoing facts. The defendant had not theretofore been subjected to any liability as a stockholder of the bank. At the close of the trial of this suit before a jury each party moved for the direction of a verdict in its favor. The court directed a verdict in favor of the plaintiff for the amount of the Kansas judgment, with interest. To reverse'the judgment entered upon this verdict a writ of error was brought. The principal question presented by the assignments of error was as to the character of the remedy, provided by the Kansas statutes against a stockholder of an insolvent corporation, — whether it was a special, peculiar, and local remedy created by the statute and without force and not capable of being enforced outside of the limits of the state of Kansas.</p>

<p>1. County Refunding Bonds — 'Validity—-Bona Fide Purchasers — Estoppel.</p> <p>When county bonds issued under an act authorizing the county commissioners “to confpromise and refund its matured and maturing indebtedness of every description” contain a recital of the act, and a statement that all its provisions have been strictly complied with, and that the issue does not exceed the amount of the county’s outstanding indebtedness, the county is estopped, as against an innocent purchaser, from setting up that a part of the indebtedness refunded consisted of railroad aid bonds which were void.</p> <p>3. Same — County Warrants — Authority of Commissioners.</p> <p>When the statutes provide that the power of a county as a body politic and corporate shall be exercised by a board of county commissioners (Uen. St. Kan. c. 25, § 3), an act authorizing counties to refund “matured and maturing indebtedness of every description whatsoever” (Act Kan. March 8, 1879), gives the commissioners authority to refund outstanding warrants as well as bonds, and to do so without submitting the "question to a vota of the people.</p> <p>3. Same.</p> <p>Statutory authority to the board of county commissioners to compromise and refund the indebtedness of the county carries with it power to fix the time and terms of payment of the refunding bonds.</p>

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

<p>1. Interstate Extradition — Extradition Warrant — Sufficiency of Recitals.</p> <p>An extradition warrant reciting that it is issued pursuant to the requisition of tlie governor of another state, that said requisition is accompanied by a copy of the indictment against the party demanded, and that said copy of the indictment is certified by the governor of tlie demanding state to be “in due form,” is sufficient, under the statutory requirements of section 5278, Rev. St. U. S.; the expression, “certified to be in due form,” being equivalent to, and in substantial compliance with, the statutory words, “certified as authentic.”</p> <p>2. Same — Habeas Corpus.</p> <p>A federal court will not, on habeas corpus, discharge a prisoner charged with the violation of the criminal laws of one state, and apprehended iu another, where it appears by the recitals contained in the warrant by virtue of which he was arrested, and by the record of the extradition proceeding, that no right, privilege, or immunity secured him by tlie constitution and laws of the United States will be violated by remanding him to the custody of the agent of the demanding state. And tlie court will seek to uphold the actions of the executive, provided they appear to be in good faith.</p>

<p>This was a suit in equity by John Conley against Simon C. Marum for alleged infringement of a patent for an improvement in wrappers for tobacco. The cause was heard on demurrer to the bill for want of patentable invention.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>This was a libel in admiralty by Nicholas Noriea and others, members of the crew of the towboat Elmer E. Wood, against the Italian bark Laura and her cargo, to recover compensation for alleged salvage services. Subsequently the G-ulf Towing Company, a corporation owning the towboat Elmer E. Wood, filed an intervening libel also setting up a claim of salvage against the bark in respect to the same transaction. The services in question consisted of a trip by the tug from Port Eads to where the bark was ashore in the mud of Pass 1/Outre, and pulling that vessel off, and towing her from there to Port Eads; the time consumed being 16 hours. The claimants of the bark set up an alleged agreement whereby the tug was to receive $25 an hour if successful. The time consumed in the operation was 16 hours, and the district court gave a decree for the sum of $400, of which five-eighths, or $250, was awarded to the owner, and the remaining $150 was divided among the crew in proportion to their salaries or wages. From this decree several of the original libelants appealed, an order of severance having been granted in respect to the others and to the intervening libelant.</p>

<p>1. Collision — Elements of Damage — Towage.</p> <p>The expense of towing a vessel injured hy collision to a place where it was necessary to take her in order to repair her injuries, is recoverable as part of the damages.</p> <p>2. Same — Cost of Survey.</p> <p>The expense of a survey of a vessel injured by collision is recoverable as part of the damages against the vessel in fault.</p> <p>3. Same — Demurrage—Detention during Repairs.</p> <p>A vessel injured by the fault of another is entitled as part of her damages to recover, as demurrage, the amount she would have earned during the period necessarily occupied in repairs, less the 'expense of earning it. In ascertaining this amount, where there is no charier party or market price, it is proper to take as a basis the average net profits during the trip of the collision and the trips immediately preceding and succeeding it.</p> <p>4. Same — Interest.</p> <p>Interest is allowable on the various items of damage recoverable in a collision case.</p> <p>5. Admiralty — Exceptions to Commissioner’s Report — Objections to Evidence.</p> <p>Whore a witness having charge of a vessel’s books, testifies before a commissioner as to facts which might be shown hy the books themselves, and such evidence is objected to only on the grounds that it is irrelevant and immaterial, the court, on the hearing of exceptions to the report, will not exclude the evidence as incompetent because the books were not produced.</p>

In Admiralty. Tills was a proceeding in admiralty by the Franklin Sugar-Refining Company against the steamship Earnwood, in which tlie following state of facts… Held: that libelant was entitled to recover the difference between the market price on the day of delayed delivery and the price for which the damaged prunes sold. Respondent cannot be allowed to escape liability by reason of the advance in- price in the interval between the dates of required and actual delivery.

Motion to Dissolve Injunction. Tins bill was filed on the 28th of June, 1897, in the chancery court of Shelby county, Tenn.

<p>1. Appeal — Parties—'Voluntary Appearance.</p> <p>A party entitled to join in an appeal may do so by entering a voluntary appearance in the appellate court after the appeal lias been perfected therein, without giving notice to the opposite party or the circuit court.</p> <p>2. Railroads — Priority of Liens — Judgment for Damages.</p> <p>A judgment creditor 'whose claim originated in the negligent act of the railroad company’s servant is not entitled to a preference over the holders of pre-existing liens.</p>

<p>1. Fraudulent Assignment — Prisoner and His .Attorneys — Sufficiency of Evidence.</p> <p>On tlie day of his conviction of the larceny of a large-amount from the government, a prisoner -withdrew money and mortgages from a bank, where they had been deposited to indemnify tlie sureties on his bail bond, and, between the time of his conviction and sentence, assigned the mortgages to his attorneys and his wife, and paid the money to his wife. Tlie evidence’ as to the value oC tlie mortgaged property, the amount of fees due his attorneys, and whether the assignment to them was to secure, or in payment of. their fees, was very conflicting, and the entire transaction was surrounded with mystery. Held not sufficient to warrant a decree setting aside the assignments as having been fraudulently made to prevent recovery of the fine imposed as part of tlie sentence.</p> <p>2. Dealings between Attorney and Client — Burden of Showing Fairness.</p> <p>Tn any transaction between an attorney and client which is advantageous to the attorney, he is bound to show that it is fair, just, and equitable, and that the client was in a position to deal with him at arm’s length.</p>

<p>1. Tenure or Office — Deputy Marshals — Civil Service Rules.</p> <p>Since the act of May 28, 1896, as well as previously, the tenure of a deputy marshal expires, except as otherwise specially provided by law, with the term of the principal marshal; and thereafter he is not in the executive civil service of the United States, within the meaning of the civil service rules promulgated November 2, 1896.</p> <p>2. Judicial Control of Executive Officers — Injunction—Mandamus.</p> <p>The courts cannot properly interfere with executive action, either by mandamus or injunction, in a matter in which the executive officer is authorized to exercise his judgment or discretion.</p>

This was a bill filed by the Minnesota Tribune Company, the appellant, against the Associated Press, the appellee, to specifically enforce the provisions of a contract between said parties, which contract was as follows: “This agreement, made and entered into this 2nd day of March, 1893, by and between the Associated Press, the party of the first part, and the Minnesota Tribune Company, the party of the second part, witnesseth: That, for and in consideration of the covenants…

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

<p>1. Street Railroads — Insolvency and Receivers — Priority oe Claims.</p> <p>A cable sold to a cable railway being necessary to keep the road a going concern, the claim for its pilco is entitled, on the insolvency of the company and ilie appointment of a. receiver, to priority over the mortgage bonds, without showing any diversion of income. And such priority may bo allowed though more Mian two years elapsed between the time the cable was furnished and the appointment: of the receiver.</p> <p>3. Equity Procedure — Pinal Decrees — Intervention.</p> <p>Where the court at one term files an opinion announcing its decision direeling a foreclosure and sale, but the final decree in pursuance thereof is not entered until the ensuing term, the court retains jurisdiction during the latter term to permit interventions for the purpose of asserting claims against ihe proceeds of sale. Its power does not cease on the expiration of the term at which its opinion is announced.</p> <p>3. Laches.</p> <p>Plaintiff sold a cable to a cable-railway company, and delivered it September 17, 1892. On October 5, 1893, he brought an action for the price, and recovered judgment April 3, 189(5. A receiver having in the meantime been appointed for the railway company, plaintiff filed his judgment claim in the receivership suit on March 26, 1897. Held, that the claim was not barred by laches.</p>

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

This was a petition'of intervention b,y J. M. Brooks and others in the foreclosure suit brought by the Central Trust Company of New… Held: “Such liens [mechanics’ liensj extend t.o and take hold of the freehold, if such was the nature of the estate, and is superior to subsequent incumbrances.” “If there be a prior incumbrance, the lien will be operative on the buildings and erections, but not upon the land itself.” “The purchaser under such special judgment acquires the…

This was a suit in equity by George H. Moore and others against the Southern States Land & Timber Company, in which James McDonnell and others intervened. The cause was heard on exceptions filed by the interveners to the special master’s report.

In Equity. Hearing on Plea. (August 17, 1897.) The bill alleges that the widowed defendant and her husband in his lifetime executed a deed of trust to the plaintiff Jarvis, now a citizen of the state of New York, whereby was conveyed a tract of land of 484 acres situated in Haywood county, Tenn., in trust to secure to the Jarvis-Conkiin Mortgage Trust Company the payment of a bond for $6,000 executed and delivered by them for money loaned, due five years after date, with…

This was an action of ejectment by the Saranac Land & Timber Company against James A. Roberts, as comptroller of the state of New York. A demurrer to the complaint on the ground that the court was without jurisdiction was heretofore overruled.

On September 15, 1894, a freight train was wrecked on the track of the Chicago, St. Paul, Minneapolis & Omaha Railway Company, the plaintiff in error, on its road between Minneapolis and Menomonie, in the state of Wisconsin. A tank in the wreck, which contained oil, took fire about 7 o’clock in the morning of that day, and, alter burning about four hours, exploded and burned John Belliwith, the defendant in error.

<p>This was an action at law by H. B. Hambly against H. H. Bancroft, to recover the sum of $9,833.33, alleged to be due as salary owing under a contract of employment. Demurrer that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>1. National Banks — Liability of Stockholder — Purchase Induced by Fraud.</p> <p>One who Is induced by fraud to purchase stock of an insolvent national bank, and have it transferred to him on the books of the bank, and who, upon discovery of the fraud, takes prompt action to rescind the contract, is not liable to assessment on such stock, except on behalf of persons who extended credit to the bank, after the transfer, without knowledge of the fraud.</p> <p>2. Apparent Stockholder — Ground of Liability — Estoppel.</p> <p>The binding character of the obligation of one whose name appears as a stockholder on the books of a corporation is on the principle of estoppel, which precludes him from denying a relation he has assumed, and upon the strength of which others have acted.</p>

This was an action at law to recover damages for negligently causing death. At the trial in the circuit court a verdict was given for the plaintiff, judgment was entered accordingly, and the defendant has brought the case to this court on writ of error.

Action ar law by A. Lee Smith against John It. Mclntire and others to recover real estate. On motion to direct verdict for defendants.

<p>1. Copyright — Infringement Shits — Burden of Proof.</p> <p>An author suing for infringement of a copyright has the burden of showing a literal compliance with each and every statutory requirement in the nature of conditions precedent to the acquisition of a valid copyright.</p> <p>3. Same — Acquisition of Copyright — Deposit of Copies of Work.</p> <p>Under the act of March 3, 1891, two copies of the book must be delivered to the librarian.of congress not later than the day of publication thereof; and one who, without knowledge of the passage of this act, deposited copies of his work within 10 days after publication, as required by the act of 1870, acquired no rights whatever.</p> <p>8. Same — Notice of Copyright.</p> <p>A notice of copyright, in the following words: “Copyright, 1891. All rights reserved,” — is not a sufficient notice, under the act of June 18, 1874 (18 Stat. 78), since it omits the name of the person by whom the copyright is taken out. Nor can this omission be supplied by reference to the title page, where the name of the publisher appears, for there is no presumption that the publisher is the author.</p>

<p>Patents — Interpretation of Claims — Infringement—Electric Lamp Sockets.</p> <p>The Bergman patent, No. 311,110, for improvements in sockets for electric lamps, is limited to improvements in details of construction and arrangement of parts, and is, therefore, to be narrowly construed; and, as the fundamental idea of the patent is that all the parts except the sleeve for engaging the base of the lamp are to be located below the disk of insulating material, which is to be interposed between them and the lamp terminals, there is no infringement in a socket having all these parts located above the disk so as to involve a reorganization in detail of all the parts. 72 Fed. 274, affirmed.</p>

This was a suit in equity by Jacob Walder against Franz Ulrich for alleged infringement of a patent for an improved loom for making French harness.

This was a suit in equity by the J. L. Owens Company against Bradley, Clark & Co. for alleged infringement of a patent for an improvement in machines for separating cockle from grain.

This was a suit in equily by the United Indurated Fibre Company of Jersey City and others against the Whippany Manufacturing Company and others for alleged infringement of certain patents. The cause was heard on a motion for preliminary injunction.

This was a suit in equity by John Crossley & Sons, Limited, against William J. Hogg, for alleged infringement of a patent for a design for carpets.

This was a suit in equity by the Simonds Bolling-Machine Company against the Hathom Manufacturing Company for alleged infringement of a patent. The cause was heard on the complainant’s motion to require the respondent to repeat certain experiments in the presence of plaintiff’s witnesses, and also to require defendant to produce a certain witness for further cross-examination.

<p>1. Patents — Infringement—Blf.ctric Smelting Process.</p> <p>The Cowles patent, No. 319,793, for a process of smelting ores by an electric current, contemplates a process in which the fundamental • idea is the diffusion or distribution of heat, as contrasted with its localization,— this effect being secured by mixing with the ore a body of granular material of high resistance, such as electric light carbon; and the patent is not infringed by the Aeheson method for the manufacture of carbide of silicon, or “carborundum,” in which the electric current furnishing the fusing heat is localized along a central core, from which the heat is radiated into the surrounding charge so as to fuse and unite into a new chemical product the atoms of carbon and silicon contained therein.</p> <p>2. Same — Electric Smelting-Furnace.-</p> <p>The Cowles patent, No. 319,915, for an electric smelting furnace, construed, and held not infringed by the form of furnace used in the Aeheson method of producing carbide of silicon, or “carborundum.”</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit in equity by Carroll, as trustee, against Groldschmidt and others, for alleged infringement of certain letters patent for warp knitting machines. The circuit court rendered a decree for the complainant (80 Fed. 520), and the defendants have appealed.</p>

Norton against the San José Fruit-Packing Company for alleged infringement of a patent. The circuit court dismissed the bill, and the complainants have appealed.

This was an action at law by Adelaide 1?. Pratt against the Thompson &' Taylor Spice Company for infringement of a patent. The case was heard on demurrer to the declaration.

This was a libel in rem by George Grant against the steamship Elton to recover damages for personal injuries. In the circuit court a decree was rendered for the libelant, and the master of the steamship appealed.

<p>1. Collision — Tug and Steamer in Channel — Fog—Signals—Error in Ex-tremis.</p> <p>A tug navigating in a channel in the edge of a fog hank, on perceiving a steamer approaching at a distance estimated by the tug’s master at 400 yards, gave the proper signal for passing starboard to starboard. The steamer answered by two blasts of her whistle, signifying her assent. Those on hoard the tug testified that the answering signal was heard only as one, blast, and thereupon the tug changed her course, and was run down while attempting to cross the steamer’s hows. Held, that this error was not one committed in extremis, and that the tug was therefore liable for at least half the damages.</p> <p>2. Same — Excessive Speed.</p> <p>When two vessels approach each other at night in a narrow channel, under such conditions of weather as affect the visibility of lights and the hearing of sounds, there must always be some risk of collision. Held, therefore, that a large passenger steamer proceeding at over 12 miles an hour down the Elizabeth river below Norfolk, and approaching a low-lying fog hank, through which the white light of a tug was perceived, her colored lights being invisible, was in fault for violating rule 21, requiring every steam vessel, when approaching another vessel so as to involve risk of collision, to slacken her speed, and stop and reverse if necessary.</p>

Bill by the Central Trust Company of New York against the city of Indianapolis and others. Heard on motion by complainant: to dismiss ah appeal by defendant city from an order sustaining a preliminary injunction. 82 Fed. 1. The appellee has entered a special appearance, and moved, in writing, to dismiss the appeal, for want of jurisdiction of this court over the subject-matter.

■ • Action by William J. Ashley against the board of supervisors of the county of Presque Isle. Prom a judgment sustaining a pl,ea in abatement, and dismissing the action, plaintiff brings error. This ease was before this court at a former term on writ of error, and, upon full consideration of the questions then before the court, the judgment was reversed and the case remanded for a new trial. 16 U. S. App. 656, 8 O. O. A. 455, and 60 Ped. 55.

On January 24, 1896, appellant exhibited in ihe circuit court of the United States for the district of Indiana its 1)111 of complaint, which, barring the exhibit therein referred to, was in words following: “The Central Trust Company of New York, a corporation created by and existing under the laws of the state of Xew York, and a citizen of such state, brings ibis its bill of complaint against Wesley Grantham, who is a citizen of the state of Indiana, and a resident of the…

This was a bill in equity hy Andrew Thompson against the St. Paul, Minneapolis & Manitoba Railway Company and Edwin H. McHenry and Frank G-. Bigelow, as receivers of the Northern Pacific Railroad Company, to obtain an adjudication that the defendants had acquired the legal title to certain lands which of right belonged to the complainant, and to hold the defendants trustees of the title for the benefit of the complainant.

<p>1. Indians — Citizenship—Eastern Cheiiokkks.</p> <p>The Eastern Band of Cherokee Indians did not, by virtue of the treaty of New Eehota, become citizens of North Carolina and of the United States, but are wards of the nation.</p> <p>2. Same.</p> <p>The act of February 8, 1887 (24 Stat. 388, § 6j, declaring certain Indians to be citizens, has no application to a tribe of Indians,</p> <p>3. Same.</p> <p>The. political departments of the government have recognized the Eastern Band of Cherokee Indians as constituting a tribe; at least, as that word is used in the United States constitution.</p> <p>4 Courts — Hollowing Executive Action.</p> <p>. It is a rule of the courts to follow the action of the executive and the departments' in matters which it is the duty of the latter to determine.</p> <p>5. Same — Constitutional Law.</p> <p>Neither the constitution of a state nor an act of its legislature can prevent the application of an act of congress to the Indian tribes residing in the states, but subject to the control of the general government.</p> <p>6. Same — Sale of Timber by Indians — Approval by Interior Department.</p> <p>In the absence of fraud on the part of those representing the department of-the interior, its refusal to sanction negotiations by the Eastern Band of Cherokee Indians for the sale of tlieir standing timber is conclusive of the matter.</p> <p>7. Same — Protection of Indians.</p> <p>It is both the right and the duty of the United States to institute such proceedings as will fully protect the interest and property rights of its Indian wards.</p>

Bill by the Chemical National Bank of City of New York against David Armstrong, receiver of the Fidelity National Bank. From a decree allowing the claim of the complainant (76 Fed. 339), the defendant appeals.

<p>Death of Defendant Pending Attachment Proceedings — Plaintiff’s Equitable Remedy.</p> <p>A bill alleging, in substance, tbe issue and levy of an attachment in an action brought to recover a large indebtedness due, tbe death of the defendant pending the action, and the refusal of his foreign executors to revive it, a fund in control of the court, arising from the property attached, and a conspiracy on the part, of defendants to defraud the orator by removing such fund beyond his reach, states sufficient grounds for equitable relief.</p>

<p>1. Officers of the United States — Civil Service Law.</p> <p>Tbe act known as tbe “Civil Service Act” is constitutional.</p> <p>2. Same — Delegation .of Legislative Powers.</p> <p>Congress has riot delegated to the president and the commission legislative poWers.</p> <p>8. Same. '</p> <p>By rule 3, § 1. the internal revenue service has been placed under the civil service act and rules made in pursuance of it.</p> <p>4. Same — Who are Officers.</p> <p>The plaintiffs in these actions are officers of the government in the internal revenue service.</p> <p>5. Same — Removal from Office.</p> <p>They cannot he removed from their positions except for causes other than political, in which event their removal must be made under the terms and provisions of the civil service act and the rules promulgated under it, which, under the act of congress, became a part of the law.</p> <p>O. Same.</p> <p>The attempt to change the position and rank of the officers in these eases is in violation of law.</p> <p>7. Same — Equity Jurisdiction.</p> <p>A court of equity has jurisdiction to restrain the appointing power from removing the officers from their positions if such removals are in violation of the civil service act.</p> <p>(Syllabus by the Court.)</p>

<p>1. Mechamos’ Ltens — Time or Continúanos.</p> <p>Under the Nebraska law which gives to a subcontractor 60 days from the last day of the month In which the labor was done or materials furnished to filo Ms claim therefor, and declares that the lien shall continue for two years (Consol. St. 1891, §§ 2170, 2171), the lien of such a contractor continues, not for two years from the expiration of the 00 days, but only for two years from the time when the last act was done in the performance of the contract, whereby the lien first becomes determined in amount, so as to be complete and actionable.</p> <p>2. Same — Railroad Moktgages.</p> <p>A recorded railroad mortgage held by the trustee before any bonds are issued or any mortgage debt, created is held by it merely as the agent of the railroad company, so that mechanics’ liens which attach prior to the issuance of any bonds are prior in lien.</p> <p>3. Same — Filing ÍVIhoiiamc’s Lten — Continuance oe Lien.</p> <p>Tinder the Nebraska statute which provides that the failure to file the statement of claim within the periods of 90 or 60 days, as required in the cases of contractors and subcontractors respectively, shall not defeat the lien, except, against purchasers or Incumbrancers, in good faith, without notice, whose rights accrued after the expiration of such periods (Consol. St. 1891, S 2171), a lien exists for two years in favor of a subcontractor, without the filing of any statement or notice of lien whatever, as against all purchasers and incumbrancers whose rights accrue after the commencement of work by such subcontractor, and before the expiration of 60 days from the last day of the month in which (he contract is completed.</p> <p>4. Rescission or Contracts.</p> <p>Where a railroad subcontractor has agreed to subscribe for certain amounts of stock and bonds of the railroad company, and to accept from the principal contractor such stock and bonds at their par value, in part payment of the work to be done, and thereafter the principal contractor pledges all the stock and bonds to a third party, so as to disable himself from making delivery thereof, this is in if self a repudiation of the subscription contract, and gives the subcontractor a right to treat; It as a rescission, and sue the principal contractor for the amount which he was to receive in stock and bonds. And a settlement and receipt in full made by the subcontractor, without knowledge of such pledge of the stock and bonds, and his acceptance of the certificate of the trust company that he was entitled to the stock and bonds, would not prevent him from asserting a mechanic’s lien for the amounts which he had agreed to take in stock and bonds.</p> <p>5. Mechanics’ Liens.</p> <p>Where a contractor has bestowed, his labor and material upon the improvement until he has completely performed his contract, a hen exists in his favor; 'and, if the owner has not paid for the work or material in any way, it is immaterial in what way he promised to pay, and the contractor may avail himself of the security which the statute gives him.</p>

<p>Insolvent Debtor — Part Payment from Collaterals — Basis of Distribution.</p> <p>At the suit of a bank, a receiver was appointed for a corporation, and the business continued by him for more than a year, at the hank’s request, to enable it to collect accounts which it held to The amount of about 80 per cent, of its claim, it being the principal creditor. It was paid interest on its claim by the receiver, and collected about 70 per cent, of the collaterals, while the newer accounts could only he made to realize about 50 per cent, of their face value. In !ho final winding up of the business, only enough remained to pa.y a small per cent, on all claims. Held, that the bank’s pro rata share should he based on its claim as reduced by what it has received,</p>

<p>This is a. bill for an injunction against the governor and other officers of the state of Minnesota to enjoin them from selling, conveying, or clouding the title of the land grant of the Duluth & Iron Range .Railroad Company, or from bringing' suits to cloud the title thereto. The Duluth & Iron Range Railroad Company was made a party defendant, and filed its cross bill, and also made a motion for an injunction. ¿Torn the original bill and cross bill, which are substantially the same, the following facts appear:</p> <p>The complainant is the trustee of a mortgage made by the Duluth & Iron Range Railroad Company upon the land grant, and the defendants are the governor, state auditor, and treasurer as a board of land commissioners, and the state auditor as commissioner of the land oliice, and ihe governor, state auditor, and attorney general as a committee, under the act of the legislature of Minnesota for the year 1897, to bring suits against the railroad company for a forfeiture of the grant. The facts, as appearing from the bill and admitted upon the hearing, -are: On September 28. 1850. congress passed an act granting all the swamp and overflowed lands, made unlit thereby for cultivation, to the state of Arkansas for the purpose of reclaiming' the same. By act of congress approved March 12. 1860, this grant of swamp lands was extended to the state of Minnesota. By an act entitled “An act granting certain swamp lands to the Duluth & Iron Range Railroad Company,” approved March 9, 1875, the legislature granted to the Duluth & Iron Range Railroad Company 10 sections per mile for each mile of its road completed, and the right to select the deficiency anywhere in the counties of St. Louis, Lake, and Oook. This grant was made for the purpose of aiding the Duluth & Iron Range Railroad Company to construct a railroad from Duluth, by the shortest and most feasible route, to the northeast corner of township No. 60, range No. 12 W., on ihe Mesaba iron range. And it was further provided: “That when the governor of the. state shall be duly notified (by Hie company aforesaid), of the completion of each and every ten miles of said road, it shall be his duty to have same examined by sworn commissioners, and on their certificate of the completion of each consecutive ten miles in a good and substantial manner as contemplated by this act. he shall notify the secretary of state, who shall forthwith cause swamp land certificates to be issued to the president and directors of said railroad company for the number of acres to which they shall be entitled under this act,” etc. The time for the completion of the road was extended twice, — once by the act of 1876, and again by the act of 1883. The act of 1883 extended the time until 1888, and provided that none of the lands should be deeded until the entire road was constructed# It further provided that the corporation might relocate and change the line of its road so as to make the northern terminus thereof at some convenient point to be selected by the corporation in township No. 62 N., of range No. 15 W. In 1881 the constitution of the state was amended by adopting the following provision: “All swamp lands now held by the state, or that may hereafter accrue to the state, shall be appraised and sold in the same manner and by the same officers, and the minimum price shall be the same, less one-third, as is provided by law for tht appraisement and sale of school lands under the provisions of title one of chapter thirty-eight of the General Statutes. The principal of all funds derived from sales of swamp lands, as aforesaid, shall forever be preserved inviolate and undiminished. One-half of the proceeds of said principal shall he appropriated to the common school fund of the state. The remaining or.e-half shall he appropriated to the educational and charitable institutions of the state, in the relative ratio of cost to support said institutions.” The bill then alleges that the railroad company accepted this act, surveyed its line as it is now constructed from Duluth to the iron mines, in township No. G2 N., of range No. 15 W., and filed its map of said survey on the 28th day of May, 1881!, and on or before December, 3886. constructed the road, the same being 94.S miles in length; -that the governor appointed commissioners, who examined the road, and reported its completion, and that thereafter the state of Minnesota deeded to the company, at various times between May 2, 1888, and December 24, 1894, about 20.1,000 acres of land: that the various deeds contained a recital of the laws under which the grant was made, and of a compliance therewith, and of the construction of the road between the points selected, to wit. the city of Duluth and a point at the iron mines in township No. 62 N., of range No. 15 W. It further appears that the railroad company has selected 189,979.73 acres of land that has not yet been deeded, and the total number of acres to which it is entitled is 006,720 acres; that the company has already sold to various parties about 20,000 acres of these lands; that by an act of the legislature approved April 21, 3897. Iho above land grant, with all lands heretofore deeded to the railroad company, and by it conveyed to other parties, was forfeited to the state of Minnesota absolutely, and the proper officers of the. state were directed to sell the same as school lands are sold; and by a. further act of tire legislature approved April 23, 1897, the governor, state auditor, and attorney general were authorized to institute legal proceedings against any of said parties to recover said lands. The bill alleged that, unless restrained by the order and injunction of this court, the state auditor and governor, and said hoard of land commissioners, would sell and convey sa.id lands, and the timber thereon, or lease the lands, and thereby cloud the title of the complainant; and that the said governor, state auditor, and attorney general would bring various suits against the Duluth & Iron Range Railroad Company, the trustee of the mortgage, and the various parties, grantees of said railroad company, to recover said lands; and prayed an injunction.</p>

This was an application by the interstate commerce commission to enforce an order made by it against the Northeastern Railroad Company of South Carolina and others. The circuit court dismissed the hill, holding that the commission had no authority to make the order in question (7á Fed. 70), and the commission has appealed.

This was a suit in equity by the Thomson-Houston Electric Company against the Jeffrey Manufacturing Company and others for alleged infringement of a patent. Motion to strike deposition from the files.

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>Action by the Haldeman Paper Company against the American Strawboard Company for damages for breach of a contract to convey a mill property. There was judgment for plaintiff, and defendant brings error.</p> <p>By an indenture of lease dated June 27, 1891, the American Strawboard Company, a corporation largely engaged in the manufacture of strawboard and other wood pulp products, and owning and operating a number of strawboard mills, demised to George N. Friend, his heirs and assigns, one of its manufacturing plants known as the Rockdale Mills, for a term of three years, the consent of the lessor being necessary to any assignment of the lease. There was also a provision giving to the lessee an option of purchase to be exercised within one year from October 1, 1801, at the price of $25,000, one-fourth in cash and remainder in equal installments in one, two, and three years, with interest, the deferred payments to be secured by a mortgage and insurance on the premises. Should this option be exercised, the lessor covenanted to convey the property by “good and sufficient warranty deed.” Among other covenants by the lessee there was one In these words: “Said second party further covenants and agrees with said first party, its successors and assigns, as part of the consideration of this agreement, and as an inducement to said first party to enter into this agreement, that he shall not and will not, during the term created by this lease, or any extension thereof, or in case of the purchase of said premises as above provided within the period of twenty years from date hereof (except in the capacity of officer, agent, stockholder, or etnployé of said first party), directly or indirectly, as employer, employé, agent, officer, stockholder, or otherwise, manufacture on said premises, or engage in or be interested in the manufacture on said premises, of strawboard, straw lumber, sheet strawboard, rolled strawboard, wood-pulp board, pulp-lined board, straw wrapping' paper; and the sum of $20,000, to be recovered by and paid to the said American Strawboard Company, its successors or assigns, is hereby fixed and agreed upon as and for liquidated damages, to the payment of which said sum of $20,000 well and .truly to be made to the said American Strawboard Company, its successors or assigns, the undersigned binds himself, his heirs, executors, and administrators, firmly by this contract, in case of any violation of this paragraph of this contract, by him. It is further agreed that, in case of the violation of this paragraph of this agreement, as a further remedy said first party may, at its option, avoid this lease, and enter into possession of the demised premises, and also restrain by injunction the violation of this paragraph of this agreement.”</p> <p>On the 6th of July, 1892, this lease was assigned by Friend to the appellee, the Haldeman Paper Company, a corporation engaged in the manufacture of paper. This assignment was in writing, and indorsed upon the original lease, and was as follows: “Be it known that I, the undersigned, George N. Friend, have this day, for value received, sold, assigned, and transferred all my right, title, and interest of every kind and nature in and to the foregoing lease to the Plaldeman Paper Company, of Lockland, Ohio, and do hereby sell, assign, and transfer to said the Haldeman Paper Company all my said right, title, and interest in and to said lease, the same to have, use, and enjoy the same as I might or could do.” The American Strawboard Company consented to this assignment, and granted an extension of the option of purchase in these words: “We hereby consent to the transfer of this lease and the option of purchase to the Plaldeman Paper Company, of Lockland, Ohio, and agree to extend said option of purchase to January 1, 1893, granting and giving to them, the Haldeman Paper Company, and their assigns, for the consideration of $1 to us in hand paid, all the right and privileges originally given by us to George N. Friend, under this lease. In witness whereof the American Strawboard Company, by its vice president and secretary, have hereunto set their hands and seals in duplicate this 7th day of July, A. D. 1892.”</p> <p>On December 31, 1892, the Haldeman Paper Company exercised its option of purchase, and paid the cash installment of the purchase money, and offered to execute its notes, and secure same by mortgage and insurance when the property should be conveyed. A draft of a deed was thereupon prepared by the American Strawboard Company, and submitted to the purchaser for approval. This deed contained a covenant by the grantee with the grantor, its successors or assigns, that the premises should not be used by the grantee, its successors or assigns, for 20 years from the date of the deed in the manufacture of straw-board or any other straw products mentioned in the demise to Friend, and a condition that if this covenant was broken the. deed should be null and void, and the title revert to the grantor, its successors or assigns, with a right of re-entry. After this form of deed had been submitted to the purchaser for its approval there ensued a lengthy correspondence between the parties which would but incumber this opinion to fully set out. It is sufficient to say that the position taken by the purchaser was that it was entitled to receive a clear warranty deed containing no covenant whatever restricting the use of the premises, while, on the other hand, the American Strawboard Company strenuously insisted upon a deed containing a covenant against the use of the premises for the purposes prohibited by the lease. Such a deed as the Haldeman Paper Company demanded was refused, but a deed in form such as that submitted for approval was. the only deed actually tendered by the American Strawboard Company. With this correspondence all effort at an amicable understanding came to an end, and the Haldeman Paper Company commenced this action at law to recover damages for a breach of the covenant “to convey by a good and sufficient warranty deed”; the plaintiff averring that it had performed all and singular the things required of it to be done by the terms of the lease in pursuance of its option of purchase, and that the defendant had’ refused, though often requested, to deliver to it a good and sufficient warranty deed as provided for in said lease, and had wholly refused to perform any of the conditions and covenants of the lease touching said option of purchase and the conveyance of said premises in feo simple to the plaintiff. Damages were laid at the sum of $50,000. There was a jury, and verdict for the plaintiff, and judgment thereon for $16/200.25.</p>

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

■ Peter Campbell and others, the plaintiffs in error, sued the Iron-Silver Mining Company, the defendant in error, on July 5, 1884, in a proceeding by ejectment. The suit was first tried, and the plaintiffs recovered a judgment, on May 21, 1885. This judgment was reversed by the supreme court of the United States on April 28, 1890. Mining Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. 765.

This was a suit on a life insurance policy issued by the New York Life Insurance Company, the plaintiff in error, which was brought by Ida M. Baker, the defendant in error, as guardian of her three minor children, Cecil Baker, De Loyd Baker, and Lamont Baker. The policy sued upon was issued by the. aforesaid company on the life of Ward L. Baker, for the benefit of the aforesaid minors, in the sum of $5,000; and the same was executed and delivered on or about July 13, 1893.

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

This is an action of trespass brought by the plaintiff in error, as owner of the Itish-American mining claim, situated in Nevada county, Cal., against the defendant in error, which, as the owner of the North Star claim, has followed and worked its lode upon its descent under the surface of the Irish-American claim.

This was an action at law by A. Lehman against the city of San Diego to recover upon certain bonds purporting to have been issued by the defendant. The circuit court directed the jury to return a verdict for defendant (73 Fed. 105), and the plaintiff brought the case to this court on writ of error.

<p>Review on Error — Case Tried to the Court Without a Jury.</p> <p>An assignment of error upon a general finding made by the court in an action at law, tried without a jury, raises no question for review.</p>

Action by the Travelers’ Insurance Company against the- Union Pacific Railway Company. From a judgment for plaintiff, defendant brings error.

<p>In Error to the Circuit Court of the United States for the District of Wyoming.</p> <p>This writ of error challenges a judgment for the recovery of part of the purchase price paid by Samuel M. Barker, the defendant in error, to Robert A. Smiley, the plaintiff in error, for 0,000 sheep, none of which were ever delivered. Barker alleged .in his complaint that on November 21, 1892, he paid $1,000 to Smiley, and promised to pay him $28,500 on the delivery of 0,000 sheep, and that Smiley made a- written contract with him to deliver the sheep to him at Medicine Bow, in the state of Wyoming, on May 1, 1893; that on May 31, 1893, he- paid $5,000 on this contract, and he and Smiley made another written agreement, to the effect that the balance of the money should he paid when the sheep were delivered, about November 1, 1893, that Barker should pay $750 interest and all the expense of shearing and herding the sheep meanwhile, not exceeding $!00 per month, and that Smiley should sell the wool, and apply its proceeds in payment of the purchase price on the contract; that on October 25, 1893, Smiley agreed to ship 3,000 of The sheep to Chicago by way of Silver Creek, in ihe state of Nebraska, where Barker was, and where ho liad a suitable place to feed the sheep, to deliver these sheep to him at Silver Creek if he was then able to pay $10,000 on the contract, and to keep the remaining 3,000 sheep for him until May 1, 1894, when Barker was to pay the unpaid balance owing upon the agreement; that he raised the 810,000, and had it, ready to pay about November 1, 1893, but that Smiley sold the 3,000 sheep to a stranger before that date, kept the $6,000 paid to him as part of the purchase price, and failed to deliver any of the sheep. He sued for and prayed to recover the $6,00» as money had and received by Smiley to his use. The plaintiff in error answered. Tn his answer he admitted the execution of the contracts of November 21. 1892, and May 31. 1893, and the payment of the $6,000, but he denied the agreement of October 25, 1893. and averred that that agreement was to the effect that t, .e defendant in error should pay 810,000 to him at Rawlins, in the state of Wyoming, on or before October 27, 1893, and that thereupon he should deliver the, 3,000 sheep to him al Medicine Bow, and should keep the remainder until the 1st of May, 1894, when they should be delivered, and the unpaid balance of the purchase price should be paid. lie alleged that Barker failed to pay the $10,000 as he agreed, and thereby violated his contract, and he claimed $11,-000 for his breach of it. The court tried the case, without a jury, and filed special findings of fact and conclusions of law. The material facts which it found were these: The three contracts alleged by the defendant in error in his complaint were made, but the last one ivas not in writing. Before this last comract was made, the plaintiff in error wrote to Barker, and proposed that he should take but 3,000 instead of 6,000 sheep about November 1, 1893. About October 22, 1893, the plaintiff in error went to Silver Greek, Neb., where he found Barker, and made the oral agreement with him to ship the 3,000 sheep about November 1, 1893, to Chicago, to feed them in transit at Silver Creek, Neb., to accept $10,000 when they arrived there, and to deliver them to Barker, and to extend the time toi the delivery of and the payment for the remaining-3,000 sheep until May 1, 1894, if the $10,000 was paid. Barker agreed to secure the $10,000 if possible. Ho did secure it, and had it on hand, ready to pay over, on November 1, 1893, at Silver Creek, where he was awaiting the arrival and delb'ery of the 3,000 sheep. Before the October agreement was made, he had sent 18 cars to Medicine Bow for the purpose of transporting the sheep Hast. After the October contract was made, the plaintiff in error requested him, by letter, to turn diese cars over to him, so that he could use them to ship the 3,000 sheep to Chicago: and Barker sent a written order for the cars, with detailed directions for shipping the sheep, which Smiley received on November 3, 1893. On that day lie sold and delivered 2,750 of the. sheep to a stranger, witlioui any notice to the defendant in error, who first learned of this fact on November 4, 1893. The court found as conclusions of law that the plaintiff in error waived the defense of the statute of frauds by his pleading; that the oral agreement of October 22, 1893, was a valid and binding contract; that Smiley had failed to comply with his written contracts as modified by this oral agreement: that he was not entitled lo recover upon his counterclaim; and that the defendant in error must have judgment against him for the portion of the purchase price which he had paid, and interest.</p>

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

This was an appeal by Isaiah A. Lahey and Colon C. Duncan, composing the firm of Lahey & Duncan, from a decision of the board of general appraisers reversing a decision of the collector of the port of New York in regard to the classification for duties of certain merchandise. The circuit court affirmed the decision of the board, and the United States appealed to this court.

<p>This is an appeal from a decision of the circuit court, Southern district of New York, affirming a decision of the board of general appraisers, which reversed a decision of the collector of the port of New York. 78 Fed. 805. That officer classified an importation of refined carbonate of potash under paragraph 00 of the tariff act of 1894, as being within the description “all chemical compounds and salts not specially provided for in this act.” The importers protested, contending that it should be assessed for duty under paragraph 595 of the same act.</p>

This is an appeal from an order of the circuit court for the district of Connecticut which granted an injunction pendente lite against the infringement of claims 2 and 3 of letters patent No. 253,572, dated February 14, 3882, and issued to John E. Atwood, for an improved support for spindles for spinning machines.

This was a suit in equity by the Kynear Company against George Evans for alleged infringement of a patent for artificial metal tooth crowns or caps. Final hearing.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>This was a suit in equity by Thomas Streat against the American Tobacco Company for alleged infringement of a patent for improvements in cigar makers’ implements. In the circuit court a decree was entered sustaining the patent, finding infringement, and granting the usual relief. The defendant thereupon appealed to this court.</p>

This was a suit in equity by Samuel Evans and Charles L. Raw-son against the Suess Ornamental Glass Company, John B. Suess, Max Suess, and Emily Suess for alleged infringement of a patent for improvement in processes of chipping glass. The circuit court dismissed the bill, holding that the patent was void for want of novelty in view of the prior state of the art. 81 Eed. 198. From this decree complainants have appealed.

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This was a suit in equity by the Western Electric Company against Henry J. Reedy for alleged infringement of a patent for improvements in electrical annunciators for elevators. In the circuit court an order, followed by a decree, of pro confesso, was entered against the defendant for failure to answer. A motion to set aside the default and dismiss the cause for want of jurisdiction was overruled (66 Fed. 163), an accounting was taken before the master, and a decree was entered for complainant. The defendant has appealed.</p>

This was a suit in equity by Frank Toepfer and Peter Gr. Toepfer against the G-alland-Henning Pneumatic Malting Drum Manufacturing Company and others for alleged infringement of a patent for improvements in malt kilns. The circuit court dismissed the bill, on the ground that the defendants’ device did not infringe the claim in controversy. 67 Fed. 134. From this decree the complainants appealed.

<p>1. Salvage — Compensation—Incomplete Success.</p> <p>The fact that a vessel which has gone ashore receives injuries in the course of the salvage operations, while it does not deprive the salvors of their claim hotli to compensation and bounty, is one proper to be considered in determining the amount of the award.</p> <p>2. Same — Danger to Dims.</p> <p>In determining- the effect on the amount o'f salvage of risk incurred in going through the breakers, the fact that a life-saving crew was in close proximity, and ready to effect a rescue in case of accident, is to he taken into consideration as affecting the degree of merit in facing the danger.</p> <p>3. Same — Salving Stranded Steamer.</p> <p>Where a steamer stranded on the eastern shore of Virginia was rescued with comparatively little danger in about 3% days, by the use of tugs and other appliances belonging- to a wrecking company, and worth about $117,-000, operated by a crew of 24 men, held, that an award by the district court of $27,500 on a salved value of $100,000 was excessive, and should be reduced to $16,666.60%. or one-sixth of the salved value.</p>

This was a libel in admiralty by the Merritt Wrecking Organization against the British steamship Haxby to recover compensation for salvage services. The district court awarded to the salvors the sum of $27,500. Upon a prior appeal to this court this award was held to be excessive, and was reduced to $16,666.06|. See SB Fed. 715.

<p>Federal Courts —Jurisdiction oe Suits between Members or Cherokee Nation — Citizenship.</p> <p>A -white person, a citizen of the United States, who, by intermarriage witli an Indian, becomes by adoption a member of the Cherokee Nation, does not thereby cease to ho a citizen of the United States, hut such adoption ousts the jurisdiction of the federal court over suits between the adopted member and other members of his tribe, and confers exclusive jurisdiction thereof on the tribal courts; and a subsequent unauthorized naturalization of such person does not affect his legal status.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Michigan.</p> <p>Bill for foreclosure by the Marshall & Ilsley Bank of Milwaukee, Wis., against the Watervale Manufacturing Company, the First National Bank of Manistee, Mich., and others. From a decree postponing a lien held by the latter bank to complainant’s mortgage, it appeals.</p> <p>The original bill in this cause was filed to foreclose a. mortgage executed in favor of appellee by the Watervale Manufacturing Company, conveying, besides other property, certain lots and a, strip or parcel of land situated at Watervale, Mich., on which there is a sawmill and lumber plant, with pier and other improvements. 'The bill alleges that, at or soon after the date of execution of the mortgage in favor of appellee, it was discovered that llie appellant claimed a lien on the same lots and parcel of real estate prior in time to the lien of appellee’s mortgage. Appellant was made a defendant to the original bill, for the purpose of having appellant’s lien postponed to the lien of appellee’s mortgage, and this was the relief sought against appellant. After answer to the original bill, appellant filed a cross bill to foreclose the lien in its own favor, which was answered, and the question presented under both the original and cross bills is one of priority of lien on the same real estate. In the relief sought against appellant, the original bill proceeded upon the ground that appellant was precluded by estoppel from asserting priority for its lien as against appellee, the main facts being set out in the bill. Appellant is a banking association, organized under the acts of congress, and appellee is a state bank, formed under the laws of the state of Wisconsin. For convenience, appellant may he called the “Manistee Bank,” and appellee the “Milwaukee Bank.” On the hearing, the conclusion was readied by the circuit court that the lien of the Manistee Bank, though prior in date, ought to be postponed to the lien of the Milwaukee Bank; and it was decreed accordingly, and the case is brought here by appeal for review.</p>

Bill by John S. Lawrence, receiver of the Northern National Bank of Big Rapids, against Ceorge F. Stearns. From a decree for complainant, defendant appeals. The defendant in error, as receiver of the Northern National Bank, of Big Rapids, Mich., brought this suit by bill in the court below to recover from the appellant damages for alleged breach of trust and negligence on his part while the active managing officer and president of that bank.

This was a bill in equity by Mary A. Henry against the Lilliwaup Falls Land Company and Ida M. French to assert an alleged equitable title to land to which defendants had obtained the legal title.

<p>1. Mortgages — Purchase of Tax Certificate by Junior Mortgagee — Injunction.</p> <p>If a junior mortgagee of real property, which is not worth the amount due on the prior mortgage, pays delinquent taxes thereon, the senior mortgagee cannot secure a decree in equity restraining him from obtaining a tax deed, without reimbursing him for such payment.</p> <p>2. Same.</p> <p>This rule applies although, before bringing suit, the senior mortgagee has bought the property in under proceedings, instituted after the taxes were paid, to foreclose his own mortgage.</p> <p>8. Same.</p> <p>It also applies although the junior mortgagee was a party to the foreclosure action, in which he sought unsuccessfully to have his mortgage declared to be a first mortgage, and did not there set up his interest arising out of the tax payment.</p>

This was a suit in equity by the Queen City Barrel-Header Company and others against the Standard Oil Company and others for alleged infringement of a patent for improvements in barrel-heading machines.

<p>Mortgages — Aeter-Acquired Property — Conditional Sales.</p> <p>Machinery constituting the complete steam plant and motive power of a street railroad, when placed in its power house, becomes an integral part of the property, ns a railroad system, and passes under a mortgage, previously executed and recorded, covering the entire road and plant, constructed and to be constructed, though sucli machinery was placed in the building under a contract by which the seller reserved title until full payment was received therefor, which payment hits never been made.</p>

<p>This was a suit by Albert R. Ledoux, as receiver of the Harney Peak Tin Mining, Milling & Manufacturing Company, and others, to enjoin William H. La Bee, as county treasurer of Pennington county, S. D., from making a sale of certain property for delinquent taxes.</p>

<p>1. Eqttitv Pleading — Practice m Federal Courts — Requisites of Answer.</p> <p>In the federal courts, equity pleading is not governed hy the state codes; and the answer should deny or expressly admit each material allegation of the hill, or, if the facts are not within the knowledge of the defendant, his belief should he slated; otherwise the answer is insufficient.</p> <p>2. Same — Power of Corporation to Contract — Presumption.</p> <p>It is not necessary for a plaintiff corporation to allege its authority to make the contract sued on, or that any corporation under which it claims had such right, as the contract of a corporation is presumed to he within its powers.</p> <p>3. Same — Answer or Cross Bill — Reformation of Instrument.</p> <p>Such matters as mistake or fraud in the execution of a note and mortgage, whereby they do not express the true contract, should not he alleged In the answer, but in a cross bill for reformation.</p>

Bill by the New York Commercial Company against Henry H. Francis and others. From an order granting an injunction pendente lite, defendant Francis appeals. On June 4, 1896, Henry II.

This was an auxiliary suit in equity, wherein receivers previously appointed in Connecticut for the Connecticut corporation of E. S. Greeley & Co. were also appointed by this court to take possession of its assets in this district. See 8(1 Eed. 195. The cause is now heard on a motion to confirm the report of the master, and to direct a receiver to transmit the balance of funds to the court of primary jurisdiction in Connecticut.

On petition of the defendant and Frank B. Schütz, assignee thereof under voluntary assignment for the benefit of creditors, for discharge of an attachment issued out of this court, and release of the property attached, pursuant to the provisions of chapter 334 of the Laws of Wisconsin for 1897.

<p>Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>This Is an action for a breach of contract between William D. Hitchcock,, plaintiff in error, and Thomas O. Anthony, defendant in error, whereby said Hitchcock agreed not to engage in certain business for a period of seven years-from February 24, 1892. This contract was in writing, and was as follows: “This agreement, made and entered into this 24th day of February, A. D. 1892,, by and between Thomas C. Anthony, of 8-ault Ste. Marie, Mich., -and W. IX Hitchcock, of Chicago, 111.: The party of the first part, Tilos. C. Anthony, has this day sold and conveyed unto the said W. D. Hitchcock all the property at Detour. Mich., known as the Hurd & Heinstoin and Moiles property, for the sum of ten thousand dollars; and the said W. D. Hitchcock, party of the second part, agrees with tlie said Thomas C. Anthony to not purchase or offer for sale any coal, (except wliat coal they may require for their own use, to any steamers, boats, or persons, and also to not traffic in the buying or soiling of fish, except fisli that may be caught with his own nets, or do anything that will conflict with the said coal or fish business of ihe said Thomas C. Anthony, and further agrees to not act as general agent and ticket agent, or in any capacity for any steamer or line of boats, nor to do any business whatever with said, steamer or boats of any kind, as receiving and shipping of freight, merchandise. etc., except to receive their own goods and merchandise, and ship out same, when necessary, for the period of seven years from date thereof. And, further, that the said party of the second part -agrees that while said Anthony gives full warranty deed, as required by said Hitchcock, yet said sale is made with full knowledge of said Hitchcock of the conditions of the deeds given by George Dawson, a former owner, regarding restrictions as to dock or shipping privileges; and said Anthony shall not be held responsible for any damage to said Hitchcock by reason -of said restrictions in said Dawson conveyanees. And, further, that the said Anthony may have the contents of one of the ice houses on said' premises the present season, the same having been recently filled by said Anthony, together with the privileges of entering on said premises and getting said ice at his will during the coming season.” The declaration’ alleged that Thomas O. Anthony was the lessee of a certain dock on the St. Mary’s river, at the village of Detour, and was engaged in doing a coal and fish business thereon, his principal business being that of supplying coal to steamers. He was also the owner of certain real estate in said village fronting on the river, and upon which was situated another dock suitable for carrying on a like coal and fish business in competition with that conducted by himself. This real estate and appurtenant dock Anthony sold to W. D. Hitchcock for $10,000, and conveyed same by deed of general warranty. It is further averred that, as an additional consideration for said sale and conveyance, said Anthony entered into the agreement above set out, and that said agreement had been violated by leasing said dock to be used for the purpose of carrying on said prohibited business, and that the lessee thereunder had since engaged in the business of selling coal from said dock to steamers, in active competition with same business conducted by plaintiff on his own dock, whereby, damages had ensued. There was a verdict and judgment in favor of the defendant in error.</p>

<p>1. Municipal Corporations — Contracts for Public Work — Construction.</p> <p>A proposal by a city for bids for the construction of an aqueduct required the work to be done in accordance with plans and specifications on file in the office of the city engineer, among which were a number of “instructions to bidders,” one of them stating the approximate quantity of each class of work required, but further stating that such estimate was to be used solely in determining “the comparative value of the respective bids.” The contractor, in executing his contract as required by the city, was compelled to construct, of certain classes of the work, a quantity greatly in excess of that given in the estimate. Held, that such estimate, being essential to enable bidders to act intelligently in bidding, must be construed as a part of the contract, and that the contractor was entitled to recover the reasonable value of such work done in excess of the amount estimated.</p> <p>2. Same — Plants and Specifications.</p> <p>Where a city invited bids for the construction of an aqueduct, to be built in accordance with plans and specifications on file in the office of the city engineer, a survey and location of the line, being necessary to the making of such plans and specifications, is presumed to have been previously made in giving a construction to the contract let.</p> <p>8. Same — (Mabuk of Costtkact by Pahol.</p> <p>Tlie terms of a contract with a city for work, which requires the use by Uie contractor of a cement equal in quality to the best of a kind specified, cannot be changed by statements made ’ey officers of the city, either before or after tlie execution of the contract, so as to permit the use of an article in fact inferior to that specified.</p> <p>4. Same — Payment.</p> <p>Where a claim for extra work done under a city contract has been referred to the city attorney for adjustment, it is within Ms power to authorize the payment of a sum allowed by the city council without prejudice to tlie claimants’ right to demand more.</p>

This is an appeal from a decree sustaining a demurrer to and dismissing a bill exhibited in the court below by Joseph N. Baxter against Margaret Billings, Margaret Cavner, Jerome B. Wheeler, and the Aspen Mining & Smelting Company to enforce and foreclose a lien for one-half of the money and property which Margaret Billings was held to be entitled to recover from Wheeler and the Aspen Company by the terms of a decree which was rendered in a suit in equity which she and…

<p>Action by Louis Feurer against Olive J. Stewart on a covenant of warranty of title in a deed. Heard on demurrer to complaint.</p>

This suit was brought by the North American Loan & Trust Company, a corporation of South Dakota, hereafter termed the “Trust Company,” against the Colonial & United States Mortgage Company, Limited,… Held: however, that the referee had erred in his conclusions of law, and it accordingly directed that a judgment be entered against the Trust. Company, and in favor of the Mortgage Company, in the sum of $9,327.46.

<p>1. Libel and Slandkb — Libelous Pleading — Pbivilege.</p> <p>In a suit on a life insurance# policy, the defense was that the insured was still living. The company alleged a conspiracy on the part of the plaintiff and her husband, the insured, to defraud the company, and that plaintiff and her attorneys “have no knowledge or information whatever of the death of [insured], but have alleged that [insured] is dead, for the sole purpose of carrying out the agreement, conspiracy, and fraud hereinbefore set out.” Held libelous and not privileged.</p> <p>S. Same — Privileged Matteb in Pleading — Relation to Issue.</p> <p>Matter inserted in a pleading, to be privileged, must be legitimately related to the issues, or so pertinent to the subject of the controversy that it may become the subject of inquiry on the trial.</p> <p>8. Same — Libelous Pleading — Pbooe op Malice.</p> <p>Where a charge in a pleading is libelous, no proof of malice is necessary aside from the intrinsic evidence afforded by the libelous charge itself, and the circumstances under which it was uttered.</p> <p>4. Plea Filed by Attobney — Knowledge op Client — Presumption.</p> <p>An answer prepared and filed by the duly-authorized attorney of a corporation in an action pending against it will be presumed, until the contrary is shown, to have been the answer of the corporation, and to contain matter authorized by it as its defense.</p>

<p>Fibs Insurance — Conditions—Estoppel—Waiver.</p> <p>A policy oí fire insurance issued by defendant to plaintiff upon merchandise stipulated that the policy, unless otherwise provided by agreement indorsed thereon, should be void “If (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed, on the above-described promises, * * gasoline, * * *” and that no representative of the company should have power to waive any provision except, in certain eases, by indorsement. In an action on the policy it was alleged in the reply that while plaintiff, a dealer in stoves, had been in the habit, according to general custom, of bringing a small quantity of gasoline to his store from time to time to illustrate the operation of gasoline stoves, this practice and custom were well known to defendant’s agent who took the application and issued the policy, and also, both before and after its issue, to the local board of underwriters of which defendant or Its agents were members. Held that, under the terms of the policy, these facts could not operate against the defendant either as estoppel or waiver.</p>

<p>In Error (o the Circuit Court of the United Stales for the Southern District of Xew York.</p> <p>This was an action by the J. H. Mohlman Company against the Western Assurance Company of Toronto on a policy of Are insurance. There was judgment for plaintiff, and defendant'brings error.</p> <p>This case comes here on a writ of error to review a judgment of the circuit court, Southern district of New York, in favor of defendant in error, who was plaintiff below. The action was brought to recover loss under a policy of fire insurance issued by the plaintiff in error, who was defendant below. The relevant parts of the policy are as follows:</p> <p>“The Western Assurance Company, in consideration of $S5 premium, does insure fpr the term of one year from Nov. 12, 1894, at noon, to Nov. 12, 1895, at noon, against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding $10,000 on stock [here follows the usual percentage co-insurance clause], J. H. Mohlman & Go'., as now or hereafter constituted, $10,000 on stock of groceries and other merchandise, not hazardous, hazardous, and extrahazardous, including all material and supplies, the property of the assured, or held in trust or on commission, etc., in the event of loss or damage by fire, all while contained in the brick building situate Nos. 339 Greenwich and 19 Jay St., N. Y. City, occupied solely by the assured. Privileged to use kerosene oil or electricity, etc. This company shall not be liable beyond the actual cash value of the property. [Here follows the usual clause as to appraisement and abandonment.] This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or m case of fraud or any false swearing, etc. This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part at night later than ten o’clock; or if it cease to be operated for more than ten consecutive days; or if the hazard be increased by any means within the control or knowledge of the insured; or if mechanics be employed in building, altering, or repairing the within-described premises for more than fifteen days at any one time; or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage; or if, with the knowledge of insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of -insurance (except change of occupants without increase of hazard), whether by legal process, or judgment,^ or by voluntary act of the insured, or otherwise; or if this policy be assigned before a loss; or if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein; or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there 'be kept, used, or allowed on the above-described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerin or other explosives, phosphorus, or petroleum ■ or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for lights, and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight, or at a distance not less than ten feet from artificial light); or if a building herein described, whether intended for occupancy by owner or tenant, b,e or become vacant or unoccupied, and so remain for ten days. This company shall not be liable for loss caused directly or indirectly by -invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises, or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; hnt liability for direct damage by lightning may be assumed by specific agreement hereon. If a building, or any part thereof, fall, except as the result, of fire, all insurance by this policy on such building or its contents shall immediately cease. This company shall not be liable for loss to accounts, bills, currency,” etc.</p> <p>By a rider attached to the policy on or about April 22, 1895, the insurance was transferred to cover similar described property while contained in brick building Nos. 38-40 North Moore street and 156 Franklin street. On April 30, 1895, the property insured was destroyed by fire. At or about the time of the fire the building fell, and the Issue of fact in the case was whether the fall preceded the fire, or was itself the result of the fire. Upon this issue the testimony was conflicting, and the verdict of the jury was adverse to the insurance company. The questions presented by the writ of error are solely legal ones, consisting of alleged errors in the charge of the court as given to the jury, in the court’s refusals to charge as requested, and in its admission of and refusal to admit evidence.</p>

These were actions at law, brought, respectively, by the Union Associated Press and William g. Brewer against the Times Printing Company. The cases were heard on a motion to set aside a service of process.

<p>Service of Process — Foreign Corporations — Resident Agents.</p> <p>Debts due a foreign corporation from solvent debtors -residing in New York constitute “property witbin tbe state,” in tbe meaning of Code Civ. Proc. § 432, authorizing service on a “managing agent” of a foreign corporation having property in tbe state, under certain circumstances.</p>

<p>1. Appeal and Error — Erroneous Rulings — Correct Judgment.</p> <p>If, upon writ of error, upon consideration of tbe whole findings or facts, and upon a proper view of tbe law applicable thereto, the judgment is right, it will not be reversed merely because tbe lower court ruled erroneously upon tbe law of tbe ease.</p> <p>2. Breach of Contract — Offer to Perform — When not Necessary.</p> <p>When either party to a contract gives notice to the other that he will not comply with its terms, the other need not, in an action for damages for the breach, aver or prove a tender of performance on his part; but the elements of Ills damages must be certain, and he must show that facts exist from which it may be clearly deduced that he has suffered loss.</p> <p>8. Vendor without Tithe — Damage for Vendee’s Breach of Contract.</p> <p>One who makes a contract to sell real estate of which he has no title, nor the certain means of procuring title, has no right to damages if the purchaser withdraws from the contract.</p>

<p>Application by John Price for a Writ of Habeas Corpus.</p>

<p>This was a proceeding, under the Chinese exclusion laws, to procure an order for the deportation of one Yong Yew.</p>

<p>Post Office — Scheme to Defraud — Indictment—Statute.</p> <p>A “scheme to defraud,” within the scope of Rev. St. § 5480, relating to the use of the mails for Improper purposes, involves the element of some plausible device, reasonably calculated to deceive persons of ordinary comprehension and prudence; and manifest hoax or humbug, which belies the known laws of nature,-is not an indictable offense under that section.</p>

<p>Customs Duties — Classification—Dredses and Scows.</p> <p>Dredges and scows are vessels, and are not dutiable as “goods, wares, and merchandise,” under the tariff laws. U. S. v. Dunbar, 14 C. C. A. 639, 67 Fed. 783, distinguished.</p>

This was a suit in equity by the Western Electric Company against the Williams-Abbott Electric Company and others for alleged infringement of a patent. The cause was heard upon exceptions to the bill, accompanied by a motion to strike out certain allegations.

Eighteen libels were filed against a fleet of boats composing a dredging plant, — a tug, a dredge, several scows, water boats, etc., — foia wages, for supplies, for repairs, and for other services. The libels for wages were consolidated by order of court, and, no one opposing, a decree was made for (lie amounts found due. The men were hired to work on the plant, and served ’indiscriminately on all the boats.

<p>This was a libel by Francis Van Hoesen against the steamboat Angler, to enforce a lien for damages.</p>

These were libels in rem by John Flannery and by the Pennsylvania Railroad Company, respectively, against the steam tug Alexander Barkley. The cause was heard upon the question of the distribution of the proceeds of the tug'.

<p>Shifjustg — Negligence—Injitky to Passenger.</p> <p>The existence of a wet place on the floor about the water cooler in the steerage, caused by carelessness of passengers in using the cooler, is not, proof of such negligence as will render the ship liable for personal injuries eáused by the slipping of the steward thereon so as to spill hot gruel upon a passenger. The probability of such an accident is too remote to make the failure to keep the floor constantly dry negligence in the protection of passengers. 77 Fed. 993, affirmed.</p>

<p>Action bv John Greagh. against the Equitable Life Assurance Society of the United States. Heard on motion to remand to state court.</p>

<p>Sur motion to remand to state court.</p>

<p>Removal of Causes — Watveb. Appearing in the state court, filing a demurrer to the complaint, and procuring an order discharging an attachment by giving the necessary bond therefor, all before the time at which the defendant is required by the staie practice to answer or plead, is not a waiver of the defendant’s right to remove, when no action was taken on the demurrer in the state court.</p>

<p>Removal of Causes — Action against United States OcpicrAi,.</p> <p>An art ion against a United States district attorney for malicious prosecution will not be remanded to flic state court when all of the proceedings in the criminal action were by United States officials, in a federal court, for a viola lion of federal laws.</p>

This was a, bill by Mary T. Seeeomb against Frederick W. Wurster, as mayor of the cify of Brooklyn, David S. Stewart and 27 others, constituting the hoard of aldermen, and the East Hirer & Atlantic Ocean Railroad Company, to enjoin the granting of a franchise to the defendant railroad company in certain streets in Brooklyn. This is a motion for an injunction pendente lite, as prayed in the hill.

<p>1. Promissory Note — Effect of Indorsement and Transfer by Collecting Bank.</p> <p>The indorsement of a note without recourse, after maturity, by a bank to whom it was sent for collection, to one paying full value therefor, but who prior to said transfer was a stranger thereto, is not a payment of the debt, but is a valid transfer of the note with its security. ■</p> <p>8. Same — Priority of Payment.</p> <p>When several notes, falling due at different times, are secured by a chattel mortgage, the note first maturing is entitled to priority of payment out of the mortgaged estate.</p> <p>8. Fixtures — Chattel Mortgage on Machinery.</p> <p>A, chattel mortgage covering machinery afterwards placed in a mill is prior to a deed of trust executed after the mortgage, and conveying the mill property, when the grantor, who was also the mortgagor, treated such machinery as personalty, and the trust deed recites that it is subject. to the mortgage.</p>

<p>Bill for foreclosure by the Farmers’ Loan & Trust Company against the Memphis & Charleston Railroad Company and others.</p>

<p>1. Contract — Meeting of Minds — Uncompleted Negotiations.</p> <p>On March 8, 1897, one C., the treasurer of a New Jersey corporation, made an offer, conditional on the approval of the stockholders, to sell to defendant, for $5,000, certain lands and buildings owned by the corporation, in Aiken county, S. O. On June 7, 1897, defendant accepted this offer, on condition of the execution of bonds for titles and necessary papers. Before the conditions could be fulfilled the governor of New Jersey declared the corporation’s charter forfeited. Some further tentative negotiations followed during August, including suggestions of making title through a sheriff’s sale, but defendant still insisted on a bond for titles, which was never given. October 10, 1S97, the property in question was sold by the sheriff of Aiken county, under executions dated prior to the governor’s proclamation, and was bought for $2,000 by defendant, who paid the money and received the sheriff’s deed. He had received no notice from C. of the sale, and was unaware that C. was represented at it. In an action by O. and others, creditors and stockholders of the corporation, to set aside the sale, held, that the facts showed no meeting of minds, and no breach of contract or of fiduciary relations by defendant.</p> <p>2. Execution — Teste—Dissolution of Defendant Corporation — Sheriff’s Sale.</p> <p>If, after judgment against a corporation in South Carolina, execution is issued and levied, and at the date of the teste the defendant is in full enjoyment of its franchises, the subsequent dissolution of the corporation does not defeat the right to sell its property, and give a good title under the execution.</p>

<p>1. Foreign Corporations — Authority to do Business — Filing Papers in Each County.</p> <p>Comp. St. Mont. div. 5, c. 24, requiring foreign corporations, before transacting any business in the state, to ñle a duly-authenticated copy of certain documents in the office of the secretary of state, “and in the office of the recorder of the county where they intend to carry on or transact business,” does not require a foreign corporation to file such coxiy in every county where it transacts business, but only in the county where it has its principal office.</p> <p>2. Foreclosure of Mortgage — Matters Adjudicated.</p> <p>A decree, by a court having jurisdiction, foreclosing a mortgage, in an action by an assignee thereof, is a'iinality as to the validity of the mortgage and the assignment, concluding parties and all in privity with them.</p> <p>3. Foreign Corporation — Bight to Purchase at Foreclosure Sale — Equal Protection of Laws.</p> <p>Where a foreign corporation which has not complied with the law, so as to be authorized to do business in the state, holds a mortgage which it has a right to foreclose within the state, a denial of its right to become a purchaser at the' foreclosure sale is a denial of the equal protection of the law in violation of the fourteenth amendment.</p>

This was a suit by Frank Bowles against Elizabeth H. Field and Frank B. Field to foreclose a mortgage on real estate situated in Indiana, and executed by them, as husband and wife, to secure a note of Elizabeth Field executed by her in the state of Ohio.

This was a bill in equity by Thomas F. Ryan against the Seaboard & Roanoke Railroad Company and others to establish title to, and secure possession of, certain shares of corporate stock.

<p>1. INTERPLEADER — RELATIONS OF CO-ÜEFENDANTS — EFFECT OF PLEADING AS Evidence.</p> <p>Two adverse claimants to a fund, who are joined as defendants to a bill of. Interpleader, occupy, as between themselves, the position of complain ant and defendant, and a sworn denial by one of them of The allegations of a cross bill filed by ihe other has the same effect as evidence as though contained in an answer to an original bill.</p> <p>2. Like Insurance — Assignment of Policy -Construction.</p> <p>The holder of a life policy assigned the same to a third person, “if she survive him; otherwise to such other beneficiary, having an insurable interest on the life of the insured, as the insumí may thereafter in writing nominate, with full power to the insured 1o change or alter or cancel this assignment at any time.” Held, that such assignment was not absolute, and the reservation of the right to change or cancel applied to the assignment in which it was contained, and not to the one appointing a successor to the assignee.</p> <p>3. Same —Reassignment -Undue Influence.</p> <p>Neither advice given by a physician to his patient as to his reassignment of a. life insurance policy, nor assistance rendered him in carrying oui such advice, constitute undue influence, unless the influence so exerted is sufficiently strong' to substitute the will of ihe physician for that of the patient, and control file latter’s action in the matter.</p>

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

Bill by the Peoria, Decatur & Evansville Eailway Company against the Central Trust Company of New York and William A. Heilman, trüstees, and cross bill by defendants against the complainant. Heard on motion for an order directing the receiver to pay interest.

This was a bill for an injunction by the Oxley Stave Company against the Coopers’ International Union of North America, Lodge No. 18; the Trades Assembly of Kansas City, Kan.; and a number of the individual members of such organizations. As against the organizations, the bill was dismissed, and a temporary injunction was granted against the remaining defendants, from which they appeal.

The plaintiff alleges: That on the 1st day of July, 1896, he was appointed United States office deputy marshal,by the attorney general of the United States upon the recommendation of George J. Crump, at that time United States marshal for the Western district of Arkansas, and on the 3d day of July, thereafter, duly qualified as such, and has since continuously remained in office and acted as such; that on the ——■ day of-, 1897, the office of' office deputy United States…

<p>Application on petition of A. B. Bowers for tlie disbarment of John L. Boone.</p>

<p>1. Chattel Mortgage — Sufficiency of Description.</p> <p>A chattel mortgage which states that the mortgagor is a stock raiser of Merced county, Cal., and describes the property mortgaged as “8,000 sheep, and the increase thereof, * * * now in the county of Merced, state of California,” in effect states that the sheep were at the time of its execution owned by, and in possession of, tbe mortgagor, in said county; and such mortgage is not void for uncertainty in description of the property.</p> <p>3. Same — Merger by Taking New Mortgage.</p> <p>The taking by tbe holder of a chattel mortgage of a second mortgage on the same property to secure the same debt and further advances does not extinguish the first mortgage, where it is not released, and no agreement for its merger is made.</p> <p>8. Same — Enforcement in Another State — Necessity ob’ Aiwidavit.</p> <p>Where a chattel’ mortgage between residents of California, and on property then in that state, was executed in accordance with the laws of that state, It may be recorded and enforced in Nevada after the removal of the properly to that state by the mortgagor, without annexing thereto the affidavit required by the Nevada statute to render valid a mortgage there executed.</p> <p>4. Same — Mortgage os Increase — Wool Sheared íkom Sheet.</p> <p>A chattel mortgage on “sheep, and the Increase thereof,” executed in California, where such mortgage is expressly authorized by statute (Civ. Code, § 2955: St. 1898, p. 84), covers the wool thereafter shorn from the sheep, as a part of the increase.</p>

<p>1. Error — Questions for Review.</p> <p>On error from proceedings upon a motion to revive a judgment in which the court made no special findings, the only questions for review are rulings of the court made at the trial.</p> <p>2. Notice — Sekvioe—-Ai’pearanck.</p> <p>Insufficiency of notice of a motion to revive a judgment and irregularity in iis service are cured by appearance at the trial.</p> <p>3. Error —Evidence—Brr.i, of Exceptions.</p> <p>Assignments of error involving questions of fact will not be considered on error in law actions, and particularly where the bill of exceptions does not purport to contain all of the evidence.</p> <p>4. Reversal — Harmless Error.</p> <p>A cause will not be reversed for purely formal errors in awarding an execution when no prejudice results.</p>

This was an action by Albert Russell against Bohn Manufacturing Company to recover,in assumjisit for money had and received. The circuit court directed a verdict for the defendant, and the plaintiff brings error.

This was an action at law by the Wild River Lumber Company against the Travellers Insurance Company to recover upon a policy of indemnity insurance. The action was brought in the supreme judicial court of the state of Maine, and i lienee removed into the circuit court by the defendant. The case was tried to the court without a jury, and judgment given for the plaintiff, to review which defendant sued out this writ of error.

This was an action at law by G. P. Altenberg and Rudolph Kleybolte against W. T. Grant and others. There were a verdict and a judgment for defendants, and plaintiffs bring error. Heard on motion by defendants in error to quash and dismiss the writ of error.

This was an action by Andrew J. Davis against Hiram R. Mills and others to charge them personally with liability for the debts of a Montana corporation, of which they were trustees. The case was heard on a motion by the plaintiff to add a third count to his complaint.

This is an action by C. W. Smith, as receiver of the Atlantic & Pacific Railroad Company against Levi Rackliffe, state treasurer of California, to recover taxes paid by the company. Heard on demurrer to the amended bill. For former decision, see Reinhart v. McDonald, 76 Fed. 403.

Samuel L. Bacheldor, the plaintiff in. error, was indicted in the territorial court for the First judicial district of the territory of New Mexico, for unlawfully cutting certain timber on public lands in said territory. He justified the cutting and removal of the timber in question on the ground that he was an agent of the Denver & Rio.

<p>L Evidence — Rks Gestas — Personal Injuries.</p> <p>Whore, prior to an accident, an injured person complained to the master of the incompetency of a fellow servant, and was assured that such servant would be discharged, and until he was he would be watched to see that he hurt nohody, statements of the injured person, made to the master immediately after the accident, that the injury would not have been received liad the incompetent servant been discharged, are admissible as part of the res gestae.</p> <p>B. Same — Admissions—Statements not Denied.</p> <p>Declarations of fault on the part of the master, made by an injured servant, immediately after an accident, to one in charge of the work and competent to deny them, are admissions of the truth of such declarations, when no denial was made.</p> <p>8. Master and Servant — Contributory Negligence — Question for Jury.</p> <p>Whether or not one, who complained of the incompetency of a fellow servant prior to an accident in which he was injured, was guilty of contributory negligence by returning to work with such servant upon assurances that the servant would be replaced by a competent person, and, until he was, would be watched to see that he hurt no one, is a question for the jury.</p> <p>4. Same — Instructions—Evidence.</p> <p>It is not error to refuse to instruct the jury that there is no evidence from which they could infer that the servant remained in the master’s employ in reliance upon any promise other than that the servant would be watched, and warning given of any danger, when there is evidence of a promise, upon which the servant might have relied, to the effect that a competent man would be substituted.</p>

This suit was brought by Daisy E. Morris, the defendant in error, against the Western Union Telegraph Company, the plaintiff in error, to recover damages for an error committed, through the alleged negligence of the defendant company, in transmitting a telegram which was intrusted to it for transmission.

Petition of Marcus Dioses for Writ of Habeas Corpus. Held: as provided by the statute, and the officials conducting the same did not make the favorable decisions required by law to entitle them to admission, but held that two of the children were suffering from a loathsome contagious disease, and that the mother and the other three children were persons likely to become a public charge.

<p>1. Aliens — Deportation of Chinese — Evidence of Kestbence.</p> <p>The provision of the act of May 5, 1892, § 6, as amended by Act Nov. 3, 1893 (28 Stat. 7), that any Chinese laborer found within the jurisdiction of the. United States without the certificate of residence required by that act shall tie ordered deported unless he shall establish “by at least one credible witness, other than Chinese,” that he was a resident on May 5, 1892, leaves no room for construction, and gives the judge before whom such person is brought no discretion to accept any other testimony than that prescribed.</p> <p>2. Same.</p> <p>The power of congress to proscribe such rule of evidence in proceedings for the deportation of Chinese aliens is included within its general authority to exclude aliens, or to prescribe the conditions upon which they may remain in the United States.</p> <p>3. Same — Proceedings - Allegations in Complaint.</p> <p>"Whore a complaint is tiled for ihe deportation of a Chinese laborer under 28 Stat. 7, on the ground that lie is without the certificate of residence required by that act, an allegation therein that such laborer was a resident of the United States on May 5, 1892, is surplusage, and cannot take the place of the evidence of such fact required to be furnished by the defendant.</p>

<p>Commerce — Importation of Spirits into Alaska — Violation of Regulations.</p> <p>An attempt to export distilled spirits from a port of the United States cannot be construed as an attempt to import such spirits into the territory of Alaska, in violation of the regulations prohibiting snob importation, made by the president under Rev. St. § 1905, though such importation was intended by the shipper.</p>

This was a petition filed by Judd O. Hartzell to recover special taxes assessed against him as a wholesale dealer in oleomargarine, and paid under protest. The United States demurred to the petition.

Court of the United States for the Southern District of New York. This case comes here upon a writ of error brought by the defendant below to review a judgment rendered in the circuit court in favor of the plaintiff.

This was a suit in equity by the New York Filter-Manufacturing Company against the Elmira Water-Works Company and others, for alleged infringement; of letters patent No. 293,740, issued February 19,1884, to Isaiah ¡8. Hyatt, for an improved method of clarifying water. This case was heretofore, on ¡¿September 20, 1897, heard on a motion for a preliminary injunction, and the injunction was granted. 82 Fed. 45!).

This was a suit in equity by the Allington & Curtis Manufacturing Company and others against Peter Glor and others for alleged infringement of four patents for improvements in dust collectors.

<p>Shipping — Libel for Repairs — Evidence of Value.</p> <p>When, without previous contract for a specific sum, a vessel has been repaired by day’s work, and a fair price charged therefor and for the materials used, the opinions of experts as to the cost or value of such repairs cannot be relied on as a basis for recovery. But, if there is a wide variance between the experts’ estimates and the amount charged, this may tend to throw a doubt on the accuracy of the account, and subject the items to severe scrutiny.</p>

This was a libel in rem by John C. Fifield and others against the schooner Thomas B. Garland to recover compensation for salvage services.

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

<p>In Error to the Circuit. Court of the United States for the District of Colorado. This was an action at law by the Barber Asphalt Paving Company against the city of Denver to recover a balance alleged to be due it from the city for the performance of four contracts for grading and paving with sheet asphalt portions of four of its streets. In the circuit court a demurrer to the bill was sustained, and judgment entered for defendant, and complainant sued out a writ of error to this court. Heretofore, and on January 6, 1896, an opinion was filed, reversing the judgment below, and remanding the cause, with instructions to overrule the demurrer and permit the defendant to answer. 19 C. C. A. 139, 72 Fed. 336. The defendant accordingly filed an answer, to which a replication was filed hy the plaintiff. The cause being called for trial, the court, upon the pleadings and an- admitted statement of facts, directed the jury to find for the plaintiff, and the defendant thereupon sued out this writ of error. In this court the counsel for plaintiff have contended that the questions involved upon this writ of error are identical with those decided by this court on the former writ of error, and that the decisions then made must stand as the law of the case.</p>

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

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

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

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

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

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