Volume 84 — Federal Reporter

<p>Removal of Causes — Case Arising under Laws of United States — Mining Claims.</p> <p>An action in a state court, which appears by the complaint to be simply one to recover damages for trespass upon the plaintiff’s mining claim, is not removable as a ease arising under the laws of the United States.</p>

<p>Appeal from the Circuit Court of the United States for the .N orth-eru District of Georgia.</p> <p>This was a bill in equity by Charles E. Garner, a citizen of Florida, suing in behalf of himself and all other stockholders and creditors, against the Southern, Mutual Building & Loan Association, a corporation organized under the laws of Georgia, and others. The bill was in the nature of a creditors’ bill, and set forth that the defendant company was insolvent, and prayed for the appointment of a receiver to take charge of all the corporate property, hooks, etc., and for the issuance of writs of injunction restraining the defendant, its officers,. directors, agents, etc., from interfering further with its affairs. Thereafter the hill was amended hy making William X Speer, treasurer of the state of Georgia, a party defendant, and alleging that he had in his possession, as such treasurer, in compliance with the Georgia statutes, $331,000 of the securities and assets of the defendant corporation. By this amendment it was sought to sequestrate the securities and assets in the hands of skid Speer, to have a receiver appointed for the same, and the administration of the fund proceeded with hy the court. On a rule to show cause why the injunction should not be granted, and a receiver appointed, as prayed for, the defendant association made a return, showing, among other things, that prior to the institution of this suit a creditors’ suit had been brought hy Roby Robinson and others against the defendant association, in the superior court of the state of Georgia,, which suit was for the purpose of sequestrating all the assets of the association, and for the general administration thereof, the payment of its debts, and the distribution of the remainder among its stockholders; that on February 5, 1897, a receiver was appointed in that suit, who qualified on the following day, and, three days before the institution of the present suit, took possession of all the assets of the association, so far as the same could be found, including possession of the key to the box in the office of the treasurer of Georgia, where the securities deposited with such treasurer were stored; that the key so taken possession of was the only key to said box; and that the receiver also notified the treasurer of his appointment, and of his right to control the securities, leaving the same voluntarily in .the box in the treasurer’s office. On this showing the circuit court entered an interlocutory order denying the application for an injunction, and refusing to appoint a receiver. From this decree the present appeal was taken.</p>

This is a suit by the Val Blatz Brewing Company against Matthew Walsh, as assignee of Jacob Barge, and others, for the foreclosure of a mortgage. Heard on an application by complainant for a receiver pendente lite.

Bill in equity by Charles D. Ross against P. Y. Heckman for an injunction to restrain the defendant from extracting coal in a certain tract of land, to which the plaintiff has a clear and undisputed title.

<p>Circuit Courts — Jurisdiction in Patent Cases.</p> <p>In patent suits it is not necessary that the defendant shall he an inhabitant of the district in which he is sued, if service is there properly obtained upon him. Southern Pa.c. Co. v. Earl, 82 Eed. 690, followed.</p>

This was a suit in equity by J. A. Boyd against the Stuttgart & Arkansas River Railroad and another, seeking to recover a decree for money advanced and services rendered, and to Rave the same declared a lien upon the railroad property. The defendant filed an answer, but shortly afterwards a receiver of its property was appointed, on the application of the mortgage bondholders, with an independent suit, and the receiver was permitted to defend the action.

<p>This is a suit, in equity by the National Bank of Commerce of Tacoma, Wash., against F. M. Wade, A. F. McClaine, and J. C. Weather-red. Defendants demur to the bill.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>This was a suit in equity by the Thomson-Houston Electric Company against the Johnson Company and others for alleged infringement of a patent. The circuit court made an order granting a preliminary injunction (78 Fed. 361), from which order the defendants appealed. On September 17, 1897, the following stipulation, signed by counsel for the respective parties, was filed:</p> <p>“lb view of the decision, of the circuit court of appeals for the Second circuit in the suit of the complainant and appellee herein against the Hoosick Railway Company, filed July 21, 1897, it is hereby consented that the order for a preliminary injunction granted herein in the circuit court upon the 6th, 7th, 8th, 12th, and 16th claims of Van Depoele patent, No. 495,443, be reversed, with costs, without prejudice to the rights of either party at final hearing upon the said claims or other claims of said letters patent.”</p>

This was a suit in equity by Benjamin F. Carter against H. P. Sweet, the Big Bock Creek Irrigating District, and others. The cause was heard on a motion to retax the costs.

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was an intervening petition filed by Pullman’s Palace-Car Company in the foreclosure proceedings against the Union Pacific, Denver & Gulf Railway Company, praying that Frank Trumbull, receiver of the said railway company, be ordered to pay a claim for $21,505.90, with interest, held by the petitioner against the railway company. The receiver demurred to the petition, and the demurrer was sustained, and the petition dismissed.</p> <p>The petitioner’s claim was for ear mileage arising under á contract which, as set forth in the petition, provided, among other things, that 'the petitioner should have the exclusive right, for a term of 15 years from the date of the contract, to furnish sleeping and parlor cars for the use of the said railroad companies, and all their passenger trains, over their entire lines of road, and over all railroads controlled by them. That the petitioner should remain the owner of said cars, and should retain the right to collect fares for the use of seats and berths therein; should furnish one or more employes for each car; Should renew and improve certain portions thereof, as provided in said contract, and as might be necessary to keep the said cars up to 'the average standard of the best cars of that character in use on railroads of the United States; and should do certain other things with reference to the maintenance and management of the said cars. That, in consideration thereof, the said railroad companies agreed, among other things, that they would furnish to and for said cars certain material and supplies as provided in said contract; that they would pay to the petitioner the cost of repairing and making good all damages to said cars arising from accidents or casualties on the lines of said railroad companies; would promptly make all repairs that might be necessary to put said cars in good order; would furnish, free of charge, at convenient points, necessary space and facilities for storing bedding and other supplies; and would pay to the petitioner, as the cost of maintaining the running gear and bodies of said ears, the sum of three cents per mile for every mile run by said ears upon the lines of the said roads, or upon the roads of oilier companies by direction of the officers of said railroad companies. The petition further alleged that the said cars yielded to the Union Pacific, Denver <fc Gulf Railway Company from September 30, 1800, to July 30, 1803, a large amount of revenue, no part of which has been paid to the petitioner, as in equity and in accordance with the terms of said contract should be (lone, but that the same was wrongfully diverted and paid as interest to the holders of the mortgage bonds of said company, and used to improve and benefit the corpus of the property of said company; that said cars are, and at all times have been, necessary for the proper operation of passenger trains over the road of the Union Pacific, Denver & Gulf Railway Company, and over the roads controlled by the said receiver, and that said trains could not, at any time, have been, and could not now be, successfully or profitably operated, nor could the demands of the traveling public thereon he mot, without the use of said cars; that at all times during said period, from September 30, 1800, to June 30, 1893, there were divers lines of railroads competing- with the said the Union Pacific, Denver & Gulf Railway Company, and that each and all of said competing lines were fully equipped and provided with sleeping and parlor cars, and that if the roads of the said Union Pacific, Denver & Gulf Railway Company had not been provided with said cars it would have suffered great loss and damage in its passenger travel by reason of the diversion of such travel to such competing linos, and that thereby the gross and net earnings of said road would iiave been greatly diminished, and the bondholders of said company would have suffered great loss; that the said sleeping and parlor cars are protected by patents of the United States owned by the petitioner, and that it has exclusive control of said cars, and that during the said period from September 30, 1890. io June 30, 1893, no other sleeping or parlor cars than those owned by the petitioner were in use or operated within the territory traversed by the Union Pacific, Denver & Gulf Railway Company by any of file lines connecting or competing with the road of said company; and that if ihe petitioner had elected to exercise its rigid to terminate said contract, as it well might have done under the terms thereof, because of die failure of the Union Pacific. Denver & Gulf Railway Company to pay the amount due on account of the use of said cars, it would have been impracticable for said company to have procured other suitable sleeping and parlor cars for use upon said road, or to have made any contract with any individual or corporation, owning or operating- sleeping or parlor cars, for the use of such cars upon said road; and that if the petitioner had elected during said period from September 30, 1890, to June 30, 1893, to terminate said contract, such action would not only have caused great inconvenience and discomfort to the traveling- public, but would also have seriously diminished the earning capacity of the road and of the trust estate, and would thereby have caused great loss and damage to all persons interested therein, and particularly to the mortgage bondholders of the Union Pacific, Denver & Gulf Railway Company.</p> <p>Brief for Appellant.</p> <p>Tfixpenses necessarily incurred in the operation of the road and conserving the property, and in providing the road with necessary services, supplies, and equipment during- a reasonable time prior to the appointment of the receiver, are preferred claims. Farmers’ Doan & Trust Co. v. Kansas City, W. & N. W. It. Co.. 53 Fed. 182; Finance Co. of Pennsylvania v. Charleston, C. & O. R. Co., 10 C. C. A. 323, 02 Fed. 205; Newgass v. Railway Co., 72 Fed. 712; Railroad Co. v. Lament. 10 O. C. A. 301, 09 Fed. 23; Trust Co. v. Morrison, 125 U. S. 591, 8 Sup. Ot. 1001; Blair v. Railroad Co., 22 Fed. 471; Miltenberger v. Railroad C<j., 106 U. S. 286, 1 Sup. Ot. 140; Union Trust Co. v. Illinois M. Ry. Co., 117 U. S. 434-457, 6 Sup. Ot. 809; Central Trust Co. v. St. Louis, A. & T. Ry. Co., 41 Fed. 551-554; Trust Co. v. Souther, 107 U. S. 591, 2 Sup. Ot. 205; Kneeland v. Machine Works, 140 U. S. 592, 11 Sup. Ot. 857; Burnham v. Bowen, 111 U. S. 776, 4 Sup. Ct. 675; Railroad Co. v. Humphreys, 145 U. S. 82, 12 Sup. Ot. 787; Fosdiek v. Schall, 99 U. S. 235.</p> <p>Indebtedness for car rentals may or may not be entitled to a preference,. according to the special circumstances of the particular case. It is no exception, however, to the general rule (a) that expenses necessarily incurred in the proper operation of the road, or in enabling it to perform its obligations to the public, are entitled to be paid prior to the mortgage lien; (b) that where current receipts have been diverted from the payment of current expenses, and any one class of creditors has been given that which in equity should have been given to another, a court of equity will, as far as practicable, restore the parties to their original equitable rig-hts; (c) and that, when it is to the interest of the trust estate that the contract entered into by the railroad company be carried out, the court will direct the receiver to perform it; and (d,> that, where such an indebtedness has been incurred, it is to be regarded as a preferred claim, whether incurred from the use of ears or otherwise.</p> <p>There is no decision, or dictum even, making car rentals an exception to this general rule. To sustain the proposition that “car rentals due from a railroad company, like those due petitioner, are not looked upon as a claim having preferential rights, and are not entitled to priority out of the earnings during the receivership, or out of the corpus of the estate,” counsel for the receiver cite Thomas v. Oár Oo., 149 U. S. 95, 13 Sup. Ot. 824; Kneeland v. Trust Oo., 136 TJ. S. 89, 10 Sup. Ot. 950; Transportation Oo. v. Anderson, 22 O. C. A. 109, 76 Fed. 164; Bound v. Railway Oo., 7 O. O. A. 322, 58 Fed. 478.</p> <p>The petitioner’s claim possesses all the equitable features which are held as requisite to entitle it to be preferred over the mortgage debt. The petition alleges that the use of the cars was indispensable to the successful and profitable operation of the road, and that without them the road, could not properly have performed its duties to the public; that a large amount of revenue was earned by these cars, and that without them this income would have been diverted to other and competing lines; that the income thus earned has been inequitably, and in violation of the terms of the contract, diverted to the payment of interest to the bondholders and to the improvement and benefit of the corpus of the property; that the petitioner had the exclusive control of parlor and sleeping cars in the territory traversed by the road, and that it would have been impracticable for the road to obtain other suitable cars elsewhere; and that it is to the advantage'of the trust that this contract be carried out, for if the petitioner should now elect to terminate the contract for nonpayment of arrears, “as it might well do under the provisions of the contract,” the road and the mortgagees would suffer great loss and the public great inconvenience.</p> <p>Upon the point urged by counsel, that the benefit to the security derived from the use of the petitioner’s ears is too remote and indirect to be a basis for preference, it is sufficient to say that a direct and proximate benefit is alleged in the petition, namely, the amount of railroad fares paid by the "Pullman passengers who would otherwise have traveled upon competing lines; and it must be presumed, upon demurrer, that this averment can be established by evidence. The petition avers that the receiver is still using the cars upon the terms agreed upon in the contract. The presumption would therefore be that the value of the .use of these cars to the trust estate is ‘three cents per mile, the amount agreed upon in the original contract, and now being paid by the receiver. The benefit derived from the use of the Pullman ears is certainly not as problematical as the benefit that the. security derives from the services of unskilled laborers, and yet indebtedness due laborers is everywhere conceded to be .entitled to preference. The petitioner should, at any rate, be allowed to show in evidence, if it can, the benefit to the security derived from the use of its cars.</p> <p>While 'the allowance of the claim is, in a measure, a matter Within the discretion of the court, and to be determined by the equities of the ease, yet where, from the current receipts, interest has been paid to the bondholders and permanent improvements have been made, — or, in other" words, where there has been a diversion of the income, — then the debts incurred, within a reasonable time, in the operation of the road, are entitled to priority out of the earnings of the receivership, and, when necessary, even out of the corpus of the estate. Fosdick v. Schall, supra; Finance Oo. of Pennsylvania v. Charleston, c. & O. R. Co., supra; High, Rec. § 394c; and cases supra.</p> <p>It is not, however, indispensable that there should be a diversion of the income; that is simply an item for equitable consideration, and makes the equity stronger. Farmers’ Loan & Trust Co. v. Kansas City, W. & N. W. It. Co., supra; Finance Co. of Pennsylvania v. Charleston, 0. & 0. It. Oo., supra, Onion Trust Co. v. Illinois M. Ry. Oo., supra.</p> <p>It is not necessary that the provision for the payment of debts of the road bo made at the time of the appointment of receiver, nor that the consent of bondholders be obtained. An order directing that a claim be preferred may be made at any time. Union Trust Co. v. Illinois M. Ity. Oo., supra; Farmers’ Loan & Trust Co. v. Kansas City. W. & N. W. It. Co., supra.</p> <p>There is no rule barring i>refereniinl debts contracted more than six months, or at any specific time, before the appointment of the receiver. Farmers’ Loan & 'Trust Co. v. Kansas City, W. & N. W. R. Co., supra; Hale v. Frost, 99 TJ. S. 889; Burnham v. Bowen, supra; Atkins v. Railroad Oo., 8 Hughes, 807, Fed. Cas. No. 604; Railroad Oo. v. Lamont, supra; Trust Oo. v. Morrison, supra.</p> <p>Appellant’s Supplemental Brief.</p> <p>Appellant’s claim is, strictly speaking, not one for car rental. It is more properly a claim for services rendered by the appellant in maintaining and preserving the coach feature of these cars, i. e. such parts of the cars as are common or incidental to ordinary first-class passenger cars, and not essential and peculiar to sleeping or parlor cars. The contract provides that the ai>-pellant, remaining the ownin' of the cars a.nd providing sufficient employ&s to insure the comfort of the passengers, “shall keep all such sleeping and parlor cars in good order and repair, and shall renew and improve the same, so far as may be necessary to keep them up to the average standard of the best sleeping and parlor cars generally in use on the lines of the trunk-line railroad companies in the .United States.” Contract, art. 1, § 4.</p> <p>There are practically two features of a. sleeping car which are contemplated by the contract, and which must be preserved in order to insure its safety and comfort, and these are; (1) The coach feature, so called, or those parts of the car which are "ommon and incidental to all first-class passenger cars, such as the runnii g gear and body of the car; and (2) the sleeping-car feature, or those pans of the car which are peculiar to, and characteristic of, sleeping cars, such as the beds, linen, etc. The second or sleeping-car feature is maintained absolutely by the Pullman Company, without any compensation therefor being paid by the railroad company; i. e. the Pullman Company must supply its own mattresses, bedding, linen, and all other features of the car which essentially distinguish it from an ordinary first-class passenger car. But the cost of maintaining- the coach feature of the car is borne by the railroad company; that is to say, the railroad company, under the contract, has agreed to defray the cost and expense of maintaining the running gear and bodies of the cars, “and srtch other parts thereof as are incidental to ordinary first-class passenger cars, and are not essential to the sleeping or parlor car.” It was agreed by the parties to the contract that Shis particular work could be done more effectively and economically by the Pullman Company; and therefore the contract provides (article 3, § 4) that the latter company should keep all these cars in good order and repair, as above slated. It was necessary that the cars should be kept in good repair, and it was also necessary that the railroad company should employ some one to do that work. It cannot affect the legal aspect of this question wlie I her the railroad company paid for such services by the day, or for the specific amount of work performed, or- by the number of miles run by such cars, or in any other particular manner. The parties to this contract agreed that the railroad company should discharge this obligation on the basis of the number of miles run, and engaged the Pullman Company io make these repairs. Nor is the legal and equitable aspect of this agreement affected by the fact that the cars are owned by the Pullman Company, and not by the railroad company. Whoever owned the cars, whether the railroad company or the Pullman company, their use was indispensable to the proper operation of the road, and the cost and expense of maintaining them and keeping them in repair were necessary operating expenses.</p> <p>And, In order that this portion of the contract might be the more effectually performed, it provides (Contract, art. 2, § 1): “That the railroad company shall also, in consideration of the use of such sleeping and parlor ears for the transportation of its passengers, hear 'the cost of maintaining the running gear and bodies of such cars, and such other parts thereof as are incidental to ordinary first-class passenger cars, and not essential to a sleeping or parlor car, which cost is understood and agreed to amount to an average of three cents per mile; and shall pay to the Pullman Company, in fulfillment of such obligation, the said sum of three cents per car per mile for every mile run by such sleeping and parlor cars upon the roads of the railroad company, or upon the roads of other railroad companies by direction of the officers of the railroad company.”</p> <p>Necessarily, the cost of such maintenance and repairs was an uncertain and variable element; and in order to liquidate the same, and reduce to certainty and precision the amount to be allowed the Pullman Company for this work, it was agreed that the cost of such maintenance and repairs should be regarded as amounting to an average of three cents per mile.</p> <p>This allowance of three cents per mile was not intended to be, and is not made, a source of profit to the Pullman Company. It was simply intended to reimburse the Pullman Company for the outlay and disbursements it was obliged to make in maintaining the coach feature of the cars, in order that they might be operated by the railroad company with safety and comfort to its passengers.</p> <p>Although not appearing in the record, it is a fact that those railroads which use narrow-gauge cars pay no mileage whatever for the operation of their sleeping cars, for the simple reason that all the work of maintaining and repairing the coach feature of such cars is performed by the railroad companies operating them.</p> <p>Under this contract the advantage derived, and consideration received, by the railroad company, are the inducements offered, to the traveling public of safe and comfortable sleeping and parlor cars, and the consequent sale of a larger number of passenger tickets; and also, by the operation of Pullman cars under this contract, the railroad company is enabled to avoid the necessity of hauling additional passenger cars of its own, thereby saving to the railroad company expenses which would necessarily be incurred if it were obliged to haul such additional cars for the accommodation of its passengers; the consideration to the Pullman Company being the sale of its seats and berths, and the revenue derived therefrom. This mileage of three cents, being simply one of the incidental and unavoidable expenses of the railroad company connected with the operation of its passenger, trains, is as necessary and unavoidable as the cost and expense of maintaining .and repairing its engines, freight cars, or any other portion of its rolling stock, and is therefore distinctly an operating expense.</p> <p>It is well established, by a long line of decisions, that claims for indebtedness incurred in repairing, maintaining, and keeping in order the roadway, rolling stock, and equipment of the road, necessary for the proper operation of the same, are regarded as operating expenses, and as such are entitled to priority over the payment of the mortgage indebtedness.</p> <p>In our main brief we have cited the leading authorities upon this subject; and, in addition to them, we submit to the consideration of the court the following authorities: Blair v. Railway Co., 22 Fed. 769; Southern Ry. Co. v. Carnegie Steel Co. (Nov., 1896) 22 C. C. A. 289, 76 Fed. 492. See, also. Southern Ry. Co. v. American Brake Co., 22 C. C. A. 298, 76 Fed. 502; Railway Co. v. Adams, 22 C. C. A. 300, 76 Fed. 504; Railway Co. v. Tillett (Nov., 1896) 22 C. C. A. 303, 76 Fed. 507.</p>

<p>1. Sales — Fraudulent Representations — Rescission.</p> <p>Where a seller of stock and bonds of a corporation falsely and fraudulently represents that the mortgage securing the bonds is a first and only mortgage, he cannot defeat Uie buyer’s suit to rescind the contract by showing that after the suit was brought he paid off, and procured the cancellation of, the prior incumbrances.</p> <p>2. Same.</p> <p>Nor. in such a case, does it deprive the buyer of his right to rescind, that the contract bound the seller to pay off all liabilities of the corporation, except the mortgage debt in question, if it is shown that the buyer did rely upon the representation that there was no prior mortgage.</p>

<p>Pledge — Construction of Contract — Rights of Bank in Collateral Security.</p> <p>A note executed to a bank by a borrower contained a printed recital-that tbe maker had deposited collateral security for tbe payment thereof, “and also of all other present or future demands of any kind of the said bank” against the maker, due or not due. It further provided that the bank should have power to sell the collateral, and apply the proceeds to the payment of the note, and should “return the overplus, if' any,” to the maker. The maker deposited as collateral certain shares of stock in a cor-, poratión, and subsequently increased the amount from time to time in compliance with demands of the bank on the ground that the market value of the stock had declined, leaving the margin below its requirements. Held, that the agreement was one of pledge, and to secure payment of the note only, as .the power to sell was limited to that purpose, and that, on tender of payment of the note, the bank was not entitled to retain the stock as security for a loan previously made from the bank by the maker for a term of years on real-estate security, and which had been assumed by a subsequent purchaser of the property.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>On March 6, 1893, the United States of America exhibited its amended bill of complaint against the Des Moines Valley Railroad Company, James O. West, and Sylvester M. Fairchild, the appellees, wherein it prayed that a certificate whereby the secretary of the interior certified certain lands to the state of Iowa, and a patent for said lands subsequently granted by the state to the Des Moines Valley Railroad Company, and several mesne conveyances whereby said lands had ultimately been conveyed to James O. West, one of the ap-pellees, might each be canceled, set aside, and held for naught, and that said James O. West be forever estopped from asserting a title thereto under the aforesaid certificate, patent, and mesne conveyances. The lands which are affected by the bill of complaint are situated in Dickinson county,- Iowa, the same being the N. % of the N. E. % and lot No. 3, all in section 26, township 99, N., of range 37 W. of the fifth P. M.</p> <p>The controversy arises out of certain congressional legislation in aid of the improvement of the navigation of the Des Moines river, which legislation began with a grant of lands in aid of the improvement of the river, which was made by the United States to the state of Iowa on August 8, 1846. 9 Stat. 77, c. 103. Several acts relative to the subject were passed at various times between August 8, 1846, and March 3, 1871, but the material facts, so far as they are relevant to the present controversy, may be stated as follows: By an act approved on July 12, 1862 (12 Stat. 543, c. 161), congress extended the original grant of 1846 so as to include in the grant to the state in aid of the improvement of the navigation of the Des Moines river every alternate section of land designated by odd numbers lying within five miles of the river between the Raccoon Fork of the river and the northern boundary line of the state of Iowa. Prior to that time the original grant had been construed as not extending above the Raccoon Fork. Railroad Go. v. Litchfield, 23 How. 66. On the assumption that certain lands which would fall within the extended river grant had been sold or otherwise disposed of by the United States prior to the extension of the grant, congress, by the act of July 12, 1862, authorized the secretary of the interior to set apart an equal quantity of other lands within the state of Iowa to make good such deficiency. Under such authority a large quantity of land, including the tract of land now in controversy, was set apart by the secretary of the interior, and certified to Ihe state of Iowa on Juno 14, 1866, to supply a deficiency in the extended river grant which was supposed to have been created by a grant made to the state of Iowa on May 15, 1856, to aid in the construction of a railroad from Dubuque, Iowa, to Sioux City, Iowa. 11 Stat. 9, e. 28. The lands which were so ceriified to the state were subsequently patented by the state to the Des Moines Yalley Tiailroad Gompany, the lands in controversy in this action having been so patented on February 25, 1869. It was subsequently decided, however, that no deficiency was created in the extended river grant by the act of May 15, 1856, above cited, for reasons which are fully stated in Wolcott v. Dos Moines Go., 5 Wall. 681; also in Homestead Co. v. Yalley Railroad, 17 Wall. 153; and that the assumption which had led to the selection and certification of lands to the state on Juno 14, 1866, was erroneous. Nevertheless, congress saw fit to confirm the action which had been taken by the secretary of the interior on June 14, 1866, under the act of July 12, 1862, by another act approved on March 3, 1871 (1(5 Stal. 582, c. 129), which latier act provided; “That the title to the land certified to the state of Iowa by the commissioner of the general land office of the United States under an act of congress entitled ‘An act confirming a land claim in the state of Iowa, and for other purposes,’ approved July 12, eighteen hundred and sixty-two, in accordance with the adjustment made by the authorized agent of the state of Iowa and the commissioner of the general land office, on the twenty-first day of May, Anno Domini, eighteen hundred and sixty-six, and approved by the secretary of the interior on the twenty-second day of May, Anno Domini, eighteen hundred and sixty-six, and which adjustment was ratified and confirmed by act of the general assembly of ihe state of Iowa approved March thirty-one, eighteen hundred and sixty-eight, he, and the same is, hereby ratified and confirmed to the slate of Iowa, and its grantees, in accordance with said adjustment and said act of the general assembly of the state of Iowa: provided, that nothing in this act shall be so construed as to affect adversely any existing legal rights, or the rights of any party claiming title, or the right to acquire title, to any part of said lands under the provisions of the so called homestead or pre-empted laws of the United States, or claiming any part thereof as swamp lands.” James O. West, one of the appellees, by virtue of mesne conveyances, became, on February Í), 1885, and still remains, the owner of whatever title to the land in controversy was granted to the state of Iowa, and by the state to the Des Moines Valley Railroad Company, under and by virtue of the acts of congress aforesaid, and the action of the land department thereunder. Sylvester M. Fairchild, one of the appellees, also lays claim to the property in controversy, his title thereto being designed as follows: He filed a pre-emption claim against the land on August 24, 1865. On September 29, 1866, he relinquished his pre-emption claim, and on October 3d of that year entered it as a homestead, and received a receiver’s receipt. Fairchild made his final proof as a homesteader on October 25, 1871, and on September 26, 1876, a patent in Ms favor was issued by the United States, which was duly recorded on October 15, 1884, in the county of Dickinson, Iowa, where the land in controversy is situated. On February 22,’ 1876, James Stuart and Joseph Stuart, who were then the owners of the railroad title to the land In dispute, and under whom James O. West, the appellee, now claims, filed a suit in the district court of Dickinson county, Iowa, against Sylvester M. Fairchild, the appellee, and his wife, Helen J. Fairchild, to quiet their title to said land as against the claim of Fairchild and wife. An answer was filed by the defendants, wherein they asseried a title to the land under and by virtue of the aforesaid homestead entry of October 3, 1866, and the final proof which was made thereunder on October 25, 1871. This ease went to a final decree in the state court on November 16, 1876, whereby it was adjudged and determined that the plaintiff’s claim to the land “be established against any and all adverse claims of the defendants, and that said defendants, to wit, S. M. Fairchild and Helen J. Fairchild, be barred and forever estopped from having or claiming any right or title to the premises * ® * adverse to plaintiffs.” Fairchild and wife subsequently took possession of the land in controversy, notwithstanding the prior decree in favor of the Stuarts, whereupon the appellee James O. West, who had I hen become the owner of the property, brought an action of ejectment against them to the March term, 1885, of the district court of Dickinson county, Iowa. In this latter suit Pair-child and wife again pleaded the title which they had before asserted in the suit which was brought against them by the Stuarts. They also filed a cross petition in the case, setting up their title under the homestead entry, and praying that, in view thereof, it might be decreed that they were the absolute owners of the property in controversy. This suit, however, resulted, as before, in a judgment in favor of the plaintiff, which was rendered on October 2, 1885, whereby it was adjudged, in substance, that James 0. West was the owner in fee of the property in dispute, and that he have and recover the possession thereof from the defendants S. M. Fairchild and Helen J. Fairchild. An appeal was taken from the latter judgment to the supreme court of the state of Iowa, but said appeal was dismissed, on motion of the appellee, on December 28, 188G. The ease comes to this court on an appeal taken by the United States from a decree rendered by the circuit court of the United States for the Northern district of Iowa, dismissing the bill of complaint. 70 Fed. 435.</p>

■ Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

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

<p>Bill for an accounting filed by Charles A. Whittemore against William H. Patten and Norman Stafford, co-partners as Patten & Stafford. Heard on exceptions to answer.</p>

This was a suit in equity by the Wagner Typewriter Company against William E. Watkins and others to remove a cloud upon the title to certain letters patent. This is an equity action to remove an alleged cloud upon the title of the complainant to letters patent, No. 523,608, granted July 31, 1894, to Franz X. Wagner, as assignee of the inventar, Herman L. Wagner, for an improvement in typewriting machines.

<p>1. Matíiued Woman — Separate Estate.</p> <p>In 1884 certain land in California, known as lots B and 0, was conveyed to one 0., a married woman, by a deed which did not recite that it was conveyed to her as her separaie estate; hut 1he consideration paid was money derived by her from the sale of a cerlain “lot 13,” which had theretofore been conveyed to her by her husband by a quitclaim deed which was solely upon the consideration of "love and affection.” Held, that lot 13 was the separate property of the wife, and that, therefore, Iols B and C, being bought with the proceeds thereof, were also her separate property.</p> <p>2. Quieting Title — Suit against Executor — California Statute.</p> <p>It is a clear implication from Code Civ. Proe. Cal. § 1452, that an heir or deyisee shall not maintain an action against the executor or administrator to quiet the title to the real estate of the decedent.</p> <p>3. Same — 'Jurisdiction—Eedhiial and State Courts — Priority.</p> <p>The rule that, where two courts have concurrent jurisdiction over the same subject-matter, the one before whom proceedings are first commenced, and whose jurisdiction first attaches, will be left to determine the controversy, applies, irrespective of statute, to prevent the maintenance in the federal court of California of a suit by the surviving husband of a decedent, or his grantee, against her administrator, pending administration, to quiet the title to the husband’s share of her separate property.</p>

This was an intervening petition, filed by Charles Parsons, as receiver of the Ogdensburg Bailroad, in the suit of the Grand Trunk Bailway against ‘the Central Vermont Bailroad and others, praying an injunction against the receivers of the Borne, Watertown & Ogdensburg Bailway restraining them from diverting west-bound freight traffic of their lines from petitioner’s road.

<p>1. R\ti7road Receivkusiiits — Actions for Damages — Service op Process.</p> <p>The owner of an animal killed by a train while the road was in a receiver’s hands sued the railroad company without joining the receiver as a defendant, but process was served only upon the receiver through an agent. The receiver’s claim, agent appeared and defended the suit, which resulted in a judgment against the company. Haiti, that the judgment was valid, so as to hind the property in the receiver’s hands.</p> <p>3. Same — Priority of Lrexs.</p> <p>A judgment against n railroad company for injuries to personal property, when rendered in a suit brought within 12 months from the time the cause of action arose, is a prior lien to that of a railroad mortgage.</p> <p>8. Same.</p> <p>A receivership is not personal, but continuous, so that claims arising against different receivers, one of whom succeeds the other, stand on the same footing.</p>

This was a bill in equity by Thomas J. Felder, a citizen of Georgia, residing in the Southern district thereof, against Alfred N. Hehre, a citizen of New York, George S. Edgell and Austin Corbin, Jr., also citizens of New York, the New England Mortgage Security Company, a citizen of Massachusetts, and five corporations existing under tlie laws of the kingdom of Great Britain.

<p>This was a bill in equity by Ella L. Leslie and Charles C. Leslie against John and George H. Leslie, as trustees under the last will and testament, and codicil thereto, of George Leslie, deceased. The cause was heard on demurrer to the bill.</p>

Suit in equity by II. W. .Brown against Phillip Tillinghast, as receiver of the Columbia National Bank of Tacoma, to establish plaintiff’s claim as a creditor against the Columbia National Bank for the amount of $6,250, paid on bis subscription for increased capital stock of Ibe banking association, and also to establish a claim as a preferred creditor against the assets for the amount of $3,050 paid upon an assessment ordered by the comptroller of the currency against the…

This is a suit in equity, by Lutie Jennes, a married woman, against Henry Landes and others, for an accounting respecting certain property to which she claims ownership. The defendants have demurred to the bill on two grounds, viz.: The bill does not contain a prayer for process, nor designate the defendants who aré required to answer, and the bill shows upon its face that the case is not within the jurisdiction of this court. Demurrer sustained.

This was a bill in equity by the Elkhart National Bank of Elkhart, Ind., which sued as a citizen of Indiana, against the Northwestern Guaranty Loan Company of Minneapolis, a corporation organized under the laws of Minnesota, and Edward P. Allison and others, stockholders in the Northwestern Guaranty Loan Company, and citizens of Pennsylvania. The Northwestern Guaranty Loan Company was not served with process, and did not appear.

<p>In Equity.</p> <p>This action was brought originally in the supreme court of New York by tlie complainants as judgment creditors of the Natchaug Silk Company to set aside alleged fraudulent transfers of the property of said company made by its president and general manager, as well as liens by attachment and execution, by virtue of which liens and transfers the defendants claim title to said property. . The bill also prays for a receiver and an -injunction restraining the defendants from disposing of the property in question during the pendency of the action. A temporary injunction, granted in the state court, was continued by this court after removal of the cause by the defendants. Two motions to dissolve the injunction were made and denied. From the order denying the ■last motion an appeal was taken to the circuit court of appeals. The opinion then delivered is reported in 20 O. 0. A. 494, 74 Fed. 429. After the proofs were taken the defendants renewed their motion to dissolve, and this time the motion was granted by this court. An application having been made by •the complainants for a rehearing, the court adhered to its. former decision and dissolved the injunction. On both occasions short opinions were delivered. The bill was amended by leave of the court, and additional proof was taken relating to the validity of the Pangbum notes.</p>

This is an action by Patrick Carolan against the Southern Pacific Company and the Pacific Mail Steamship Company to recover for personal injuries. The defendant railroad company demurs to the complaint.

<p>Public Lards — Pre-emption—Extent of Claim.</p> <p>A pre-emptor, settling on and improving- an 80-acre tract of government land, is not entitled to extend bis claim over an adjoining 80 acres in another section, upon which he has not made any improvement, nor done any act evidencing his claim, as against a subsequent grantee of the government, merely because he was entitled to pre-empt 160 acres.</p>

<p>This was an action at law by the First National Bank of Chicago against H. Drusilla Mitchell, a married woman, upon a contract of guaranty.</p>

<p>1. Nbow ounce — Evidence.</p> <p>Where evidence that a crossing signal was given greatly preponderates, the quasi,ion of negligence is still for the jury, when there is substantial evidence tending to prove that it was not given in sufficient time to constitute a warning.</p> <p>2. Railroad Crossings — Warning Signals.</p> <p>Crossing signals must be given at such times and places, taking into consideration the speed of the train, obstruction to sound, and all other circumstances, as will enable a careful and prudent man to act upon the warning.</p> <p>3. Contributory Negligence — Burden op Proof.</p> <p>Contributory negligence is a matter of defense to be established by the defendant, and, in tlie entire absence of proof, it will be presumed that decedents who were killed in a collision a.t a railroad crossing stopped, looked, and listened before going- upon the. track.</p> <p>4. Railroad Crossing — Caution—Instruction.</p> <p>It is not error to refuse to. instruct that it was the duty of decedents to stop, look, and listen, at a certain point a few feet from the track, before going upon the crossing, when slopping at such point in itself involved a danger to which the attention of the Jury was not drawn.</p> <p>5. Same — Presumption.</p> <p>An instruction that, if the. jury believed decedents could have heard the noise of the approaching train in time to have avoided tlie collision, they may presume, from ihe fact that they went upon the track, that they did not listen, is properly refused, as it eliminates the matter of the crossing signal, and does not take into consideration the presumption that decedents know the danger and exercised reasonable care.</p>

This is a suit to recover the sum of $3,000 upon two drafts in the possession of the plaintiffs.

This action was brought by the Belleville & St. Louis Railway Company, the plaintiff in error, for the use of Edward L. Thomas, against Samuel H. Loathe, tho defendant in error, upon an alleged promise of the latter to the railway company named to pay the company’s indebtedness, including one of $(¡0,000 to Thomas. The first count of the declaration alleges the promise, and the consideration upon which it was made, and the existence and nonpayment of the debt.

<p>In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>In this case the court directed a verdict in favor of the defendant upon the principal claim, and in favor of the plaintiffs upon the counterclaim. The appeal is by the city alone, and one of the specifications of error, perhaps the only available one, is that the court erred in directing a verdict in favor of the plaintiffs and against the defendant upon the counterclaim. The substance of the amended declaration is that the plaintiffs, Robert A. Shailer and Charles R. Schniglau, citizens of Michigan, on June 30, 1890, entered into a contract with the city of Milwaukee, represented by its board of public works, for the construction, according to plans and specifications, of an intake tunnel under Lake Michigan, with shafts and other connections, at stated prices per lineal foot; that the plans-and specifications were unfit and impossible of performance, and that the officers who represented the city in the making of the contract fraudulently withheld from the plaintiffs knowledge which they possessed of the material in the bed of the lake likely to be encountered in the prosecution of the work, and fraudulently furnished information concerning test borings which had been made; that the plaintiffs were thereby deceived, and, after making large expenditures, were unable to proceed with the work, to their damage in the sum of a quarter of a million dollars. The city, besides denying the alleged deceit and the insufficiency of the plans and specifications, answered that the plaintiffs had ratified the contract by proceeding with the work and receiving payments thereon, and by assigning the contract to the Shailer & Schniglau Company, a corporation, which in the same court was prosecuting a suit to recover the balance alleged to be due on the contract, and also pleaded a counterclaim on account of alleged breaches of the contract, consisting in failure and refusal to prosecute and complete the work, according to the plans and specifications, within the time specified, or within a reasonable time thereafter, and in the abandonment of the work before completion. It is also alleged that the board of public works, exercising the authority possessed under the contract and the statute of the state, declared the plaintiffs to be in default, and determined the amount of damages sustained by the city to be $113,260.78, for the recovery of which, and the additional sum of $45,000, claimed as liquidated damages under the provision of the contract for delays in completing the work, judgment was prayed. In the contract and specifications, as they appear in the record, there are the following, with other, provisions: “(1) The drawings form a part of the specifications,. and each are hereby declared to be a part of the contract. (2) All the work during its progress, and on its completion, shall conform exactly to the lines and grades shown on the drawings mentioned in the specifications, and given by the. engineer in charge, subject to such changes and modifications as the board of public works may deem necessary during its execution. (3) The board of public works, and it only, reserves the right to make any changes in the plans and specifications which they may deem necessary or desirable, and the contractors shall furnish any additional materials and do the work necessitated by such changes; tbe price of such extra work to be agreed upon by the board of public works and the contractor before the work is commenced. If the changes herein mentioned should diminish the amount of work to be performed or material to be furnished, the amount of the same, at a fair and reasonable valuation, shall be deducted from the contract price. (4) And the said party of the first part (meaning the contractors) hereby further covenants and agries, to and with the said city of Milwaukee, that he will complete the said work in manner and form aforesaid on or before the 1st day of June, A. f). 1891, and does hereby mutually agree between the said parties hereto that die said board of public works shall have the right and power, and the same is hereby reserved to said board, to adjust and determine finally all questions — First, as to tlie proper performance of these presepts and the doing of tlie said work by the said party of the first part, and, in case of the improper or imperfect performance thereof, to suspend the said work at any time, or to order the entire reconstruction of the same, if improperly done, or to rolet tlie same to some other competent party, and, in case the said work shall not bo prosecuted with such diligence and with such number of men as to insure its completion within tlie time limited by these presents, to suspend the said work, and relet the same to some other competent party, or employ men and secure material for the completion of tlie same, and charge .the cost thereof to the party of the first part; and, secondly, as to the amount, earned under these presents by the party of the first part according to the true intent and meaning thereof. And it is further mutually agreed that any and every snch adjustment and determination by the said board of public works shall be final and conclusivo between the said parties to these presents, and binding upon them.”</p> <p>The evidence shows without dispute that the contractors, after constructing* the shaft on shore, proceeded from that end with the work of opening the tunnel for the distance of 1.0.40 feet, when, on October 1, 1891, a deposit of gravel was encountered, from which there came such an influx of water that, notwithstanding all efforts at pumping, the tunnel was tilled, and the water rose in the shaft to llie level of the lake. On April (5. 1892, the board of public works, on the recommendation of the city engineer that a change of location of the line of the tunnel was necessary on account of tlie enormous flow of water at the face of tlie work, which made it impossible to continue on the line prescribed, adopted a resolution that tlie line ‘*he so changed as to make a detour at a point 25 feet in the rear of the present bulkhead, going south, at an angle of about 88 degrees from the present line,” but not declaring how far the changed course should be followed, or at what point, if at all, before reaching the other shaft, there should be a return to the original line. On tlie new course the work progressed for the distance of about 100 feet, and the same obstruction as before was encountered, and further attempt in that direction was abandoned. Under a verbal understanding, the contractors made an effort to escape 1he obstacle by drifting to the north, and on .Time 13, 1892, wrote to the chairman of the board, asking a formal order for their protection, and on the ensuing 36th the board made an order “that the contractors * * be permitted to build a solid bulkhead immediately west of the curve in said tunnel, which deflects to the south, and that they be further permitted to branch from said tunnel at a point immediately west of this bulkhead to the northward for a distance not to exceed 20 feet, and then construct the tunnel on tlie line due east, ascending at a grade of noi to exceed one foot in eight, until they shall have reached a point in the red clay above the water channel eastward of the face of tlie present easterly excavation upon the old lino of the tunnel.”</p> <p>On the 18th tlie contractors wrote to the secretary of the board acknowledging receipt of a, copy of the order, and saying; “We trust that there is no misunderstanding in relation to raising the grade of tunnel, etc. Your resolution says that ‘we be permitted to build a solid bulkhead,’ etc., and that we be permitted ‘to go northward,’ etc. It is with tlie distinct understanding that the proposed change is ordered by the board, and that we will bo paid for the expense incurred by reason of said change, that we proceed with the work indicated in said resolution. The writer has no doubt, from his conversation with the board, that this is their intent and meaning; but at the same time, on reading the resolution, it would lead one to think that it was a favor which the board were granting us, and not an order for change in the plans and specifications. Please reply to the above at your earliest convenience, thereby obliging.” On the 20th the secretary answered: “® * * The hoard consents to your request that the line of the tunnel and the grade thereof be changed. Our resolution is not in the shape of the granting of a favor, but is the act of consenting to the proposed changes, both in the line and in the grade of tire tunnel. We do not wish to have it understood as a positive arbitrary order from the board to make such change. There is no doubt as to the understanding that the board proposes to pay for the construction of the tunnel on the proposed line and grade as per your contract with the city for the tunnel work and for the extra expense incurred in hoisting the necessary material to the construction of the tunnel at the higher elevations. If this is not satisfactory, you will please state the points of "your objections without delay.” On July 20th following the contractors wrote to the chairman of the board explaining what they had been doing, and the difficulties encountered, and, concluding, said: “* * =•• It seems to us altogether too hazardous an undertaking to proceed without further information as to the extent and character of the pocket which has been encountered, and we therefore do not wish to avail ourselves of the permission granted to do so. We hope you will deem it advisable to at once have several borings made, and meanwhile we will crowd the work on the lake shaft.”</p> <p>There was further Correspondence concerning the proposed borings, which it was supposed would take from one to two months to make, and the contractors turned their attention to the sinking of the other shaft at the crib in the lake. The construction of that shaft was attended with difficulties on account of the breaking in of the sand, creating hollow places under the crib, and frequent letters of complaint on that account were sent to the contractors by officers of the city. On January 3, 1893, the board of public works passed an order, reciting the delinquency of the contractors, and requiring .them to proceed on or before the ensuing 20th with the construction of the tunnel and shafts at either one or both ends of the work with such diligence and number of men as to insure early completion of the work, failing which the board would suspend the work, and prosecute its completion, as required and provided by law. To this the contractors, on the ensuing 16th, answered, explaining that work on the shaft had been impracticable on account of the conditions of the weather and ice in the lake, and concluding: “* * * As far as the work from the shore end is concerned, we were under the impression that you did not deem it advisable to proceed further in an easterly direction, and with a radical change of grade, until the sinking of the lake shaft "had been successfully accomplished. If we are wrong in the above, and you desire us to proceed from the shore end, please issue at once the necessary order, as provided in the contract, for a change in the plans and specifications. We would respectfully request that you give us a thirty-days extension of the time from the date named in your said communication of January 3d, and we will take advantage of any let-up in the severe winter weather, and before the thirty-days extension has expired we will endeavor to have the work in full operation. Assuring you that it is our purpose and intention to crowd the work to completion with all practicable speed, we remain.” Thereupon, on the same day, the board entered an order that the time be extended from the date specified in the order of the 3d for 30 days on' the work at the crib and for 10 days on the work from the shore end. On February 8, 1893, the board passed an order “that the city of Milwaukee consents that Shailer & Schniglau may proceed with work on the intake tunnel and shaft without waiving any rights which may be now possessed by them to repudiate the contract for its construction for any cause. This consent is given on condition that all rights now possessed by the city are and shall be preserved.”</p> <p>On February 13th the contractors wrote to the board: “Gentlemen: Under the terms of your communication of the 8th inst. which we understand preserves to us all the rights we would otherwise possess, we shall begin work upon the necessary preparations to proceed with the lake shaft, now in course of construction, during the present week, and shall proceed with the work with all possible dispatch. The shore end of the new intake tunnel having been abandoned upon the line of grade originally called for by the plans and specifications, at a point about 1,600 feet from the shore shaft, it will devolve upon your board to make the necessary, changes in the plans and specifications to show us what grade and line you desire us to follow in the prosecution of the work from the shore end, and we request you to do this at the earliest possible moment, so that there may be no delay on that account. As was verbally stated to you by our Mr. Shailor at the board meeting, held Saturday, 13 tlx inst, after a careful study of the borings submitted to us, it is our settled opinion that the only feasible grade on which this work can satisfactorily continue from the shore end will be at a lower level than that on which we encountered the water and sand stratum. From the boring made at the lake shaft it is apparent that this shaft must be sunk through this same water-bearing stratum of gravel and sand, and which would be encountered at. about a. grade minus ninety. If it is possible to build the shaft through this stratum, and get into the rock below, it is our opinion, based on borings made, that the tunnel can be successfully constructed at a lower level; but until it is demonstrated that the shaft can he built through said stratum, we deem the successful completion of the work uncertain. * * *” To which on the 15(h ihe secretary of the board answered: “* * * In regard to the shore end of the new Intake tunnel having been abandoned, we wisli to correct you in slating that the work was abandoned by you, but that neither the line nor grade lias been permanently abandoned by this board, although an effort was made to avoid the difficulties by an attempt to get around it to the south, which failed. If you consider fhe difficulties at the end of the original tunnel too great to be overcome, and yon conclude that you can xirosecute your work better by lowering the grade sufficiently to avoid the water and sand stratum which you encountered, the board will consent to such grade and change, if you will indicate at what point you propose fo commence the same, and how far you propose to extend it before resuming the inclination of the present tunnel. We do not consider that the progress of the work in ihe tunnel should wait until it is demonstrated that the shaft can be built through the different strata or material, for we entertain no doubt as to the possibility of successfully completing the work. Hoping to hear from you without delay as to the suggested change of grade, 1 remain.” On the 38th the contractors replied: “We are unable to agree with the conclusions stated in the letter from your secretary of the 15ih inst., which does not aplicar to be based on any action of the board. The innnel stands abandoned on the original grade, in our view. The responsibility, therefore, rests upon (he board to act in conformity with the contract, and make such change in the plans and specifications as it may deem necessary or desirable. If ilie board desires to lower the grade, it will, of course, he necessary to begin far enough back, of the bulkhead to avoid flooding from the water encountere'd in the old drifts. Please give the matter your immediate attention, as we desire to avoid all delay. * *</p> <p>On August 5, 1893, the contractors wrote the board as follows: “As you are doubtless aware, the work of sinking the lake shaft for the new water intake is at a standstill. Under the agreement with yoii dated February 8, 3893, we have faithfully tried to put down said shaft according to the plans and specifications accompanying onr contract for this work. It has been thoroughly demonstrated that it is impracticable, and in our judgment impossible, to sink the shaft through sand to the depth which the boring made on the site indicates as necessary, by underpinning with brick under high pressure. All oto men, with the exception of the watchman, are discharged, and are awaiting further orders.” To which on the 7th the board replied: “* * * This work, however, must be proceeded with, as it is necessary that the same; be completed as speedily as possible. You will therefore oblige tills board by Stating at your very earliest opportunity as to what you proxiose to do at either one end or the other towards completing the contract for this work.” To that on ihe 8th the contractors responded: “* * * Regarding the work from the shore end, hy referring to our letter, February 13, 1893, you will find our position in the matter, and can .only add that we have never received the order we (heroin requested. * * * It having been demonstrated that the sfiaft cannot be put down according to the plans and specifications forming a part of our contract, it will devolve upon your board to make the necessary changes in the same, and we hold ourselves in readiness to proceed with the work on receipt of such orders, and compliance with the contract regarding changes.”</p> <p>There followed negotiations for the construction by the contractors of a steel shaft inside of the iron tubing which had been put in, but no agreement was reached, and on October 17, 1893, the board determined, upon a series of recitals, 'that the work of the contractors be suspended, and that the board would proceed with the construction and completion of the work. And to a notification of this order the contractors on the 21st responded: “* * * The undersigned utterly dispute the right of said board to take any such action, and repudiate and deny the alleged facts and premises on which the same purports to be based; and they deny'the right of the city and of the board of public works to do any work at their expense. If there is any work to be done under the contract between us and the city, we are ready and hereby offer to do it. In the absence of any further communication to the contrary, we cannot but look upon the action taken as a willful repudiation by the city of the contract with us. and-a refusal to let us do any further work under the same. * * *” Thereupon the board proceeded with the work, letting the construction of the shaft at the crib to other contractors, and employing laborers by the day to finish the construction of the tunnel, which was accomplished by a detour to the northward for a distance of more than 50 feet from the original line, and continuing by an ascending grade until the stratum of w.ater-bearing gravel had been passed, and then descending and returning gradually towards but reaching the original line only at the point of connection with the crib. The record also shows the order of the board, made after the completion of the work, determining the cost thereof, and declaring the amount chargeable to the defendants in error.</p>

■ In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. Of the five counts in the declaration in this ease (wo are common counts in assumpsit and three are special. The averments of two of the latter are to the effect that on March 10, 1893, the plaintiff in error. William if.

<p>In Error to the Circuit Court of the United States for the Western District of .Michigan.</p> <p>This is an action on the case against the plaintiffs in error, who were aider-men of the city of Menominee, Mich., for failure of the city council of Menominee, Mich., to require a contractor to execute a bond as required by Act No. 94, Laws Mich. 1883, being sections 8411a, 8411b, and 8411c, How. Ann. St. 'Mich., which are as follows:</p> <p>“8411a. The people of the state of Michigan enact, that when public buildings, or other public works, or improvements are about to be built, repaired or ornamented under contract, at the expense of this state, or of any county, city, village, township or school district thereof, it shall be the duty of the board of officers or agents contracting on behalf of the state, county, city, village, township or school district, to require sufficient security by bond for the payment by the contractor and all sub-contractors for all labor' performed, or materials furnished in the erection, repairing or ornamenting of such building, works or improvements.</p> <p>“8411b. Such bond shall be executed by such contractor to the people of the state of Michigan, in such amount and with such sureties as shall be approved by the board,, officer or agent acting on behalf of the state, county, city, village, township or school district as aforesaid, and conditioned for the payment by such contractor, or any sub-contractor, as the same may become due and payable, of all indebtedness which may accrue to any person, firm or corporation on account of any labor performed or materials furnished in the erection, repairing or ornamenting of such building or works. Such bond, shall he deposited with and held by such hoard, officer or agent, for the use of any party interested therein.</p> <p>“8411c. Such bond may be prosecuted, and recovery had, by any person, firm, or corporation, to whom any money shall be due and payable, on account of having performed any labor, or furnished any materials in the erection, repairing, or ornamenting of such building or works, in the name of the people of this state, for the use and benefit of such person, firm or corporation: provided, that the people of this state shall, in no case brought under the provisions of this act. he liable for costs.”</p> <p>There was evidence showing that the city council of Menominee contracted with one John Larson for the construction of a public sewer, taking from him a bond, with sureties, in the penal sum of $40,000, payable to tlie city of Menominee, and conditioned as follows: “Now, the condition of Ibis obligation' is such that if the said contract shall be executed, and the said John O. T.arson shall promptly and faithfully perform his said contract, and shall well and truly keep and perform all the terms and conditions of said contract, on his part to be kept and performed, and shall indemnify and save harmless the said city council of Menominee, and the said city of Menominee, as in said contract stipulated, and said John 0. Larson and all his subcontractors shall make payment for all labor performed and material furnished in carrying on or completion of the improvements called for by said contract, then this obligation shall be void; otherwise it shall remain in full force and virtue.” The charter of the oily provides for the election of a city attorney, and constitutes him the legal adviser of the council, and gives him a seat and voice in the council, and makes his approval of all contracts with the city and all bonds to be taken “as to form and execution” necessary “before such contract shali take effect.”' The bond actually taken from Larson was in writing, approved, “as to form and execution.” before the contract or the bond executed by him was approved and accepted by the council. No other bond was required from said Larson. There was also evidence that the defendant in error furnished' material and supplies to said Larson to the extent of more than ,$6,000, which have not been paid for, and which were furnished for the work which he contracted to do, and that he is now wholly insolvent. The plaintiffs in error (who were defendants below) were members of the city council when the contract with Larson was made, and present and assenting to the acceptance and approval of the bond taken from 1 lie contractor. There was a jury, and verdict in favor of the defendant in error for $6,076.59, and judgment accordingly.</p>

The Atlas National Bank, the defendant in error, brought suit in the court below to recover of the plaintiffs in error the amount of a promissory note dated February 38, 1893, for $4,000, payable to the order of the John Y. Far-well Company, six months after date, at the Bank of Eau Claire, in the city of Eau Claire, Wis., executed by them under their co-partnership name of Neis Holm & Co., and signed also by the firm of Holm & Thompson.

This was an action by the Omaha National Bank against the Mutual Benefit Life Insurance Company to recover upon two policies insuring the life of Frank C. Johnson. The defendant had judgment (81 Fed. 935), and the plaintiff brings error.

<p>This was an action by William Irvine against James S. Angus, Thomas G. Grothers, and W. S. Goodfellow, executors, substituted defendants for James G. Fair, deceased, to recover $15,090.06 paid by Irvine as trustee on assessments levied on stock which he held pending an appeal taken by him to the United States supreme court from a decree of the circuit court establishing a trust with respect to said stock, and ordering it turned over to one S. F. Dunham, whose real name was James G. Fair.</p>

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

This was an action at law by Ellen Long against the proprietors of the RosecMe Cemetery to recover damages alleged to have been caused by the negligence of the defendant’s managers and servants.

<p>Replevin by the Armour Packing Company against A. Snyder, E. B. Williams, and Berndt Anderson. Tried to the court without a jury.</p>

<p>1. Aliens — -Judgment of Naturalization — Conclusivenbss.</p> <p>Proceedings in a court of record under the naturalization laws (Rev. St. §§ 1993, 2165, 2171, 2172) are judicial, and result in a judgment which can be impeached only as other judicial judgments are impeached. Hence, where the proceedings are regular on the face of the record, a judgment admitting a woman to citizenship cannot be reviewed or annulled at a subsequent term, on petition of a private party, alleging that during the larger part of the two years prior to her application she was under the disability of coverture, her husband being an alien, and, therefore could not, in law, have had, during that time, the bona fide intention to become a citizen, which the law requires.</p> <p>2. Same.</p> <p>It seems that no one, unless the United States, or a person proceeding by their authority, can institute proceedings to annul a judgment admitting an alien to citizenship.</p>

<p>William S. Jewett was indicted for embezzlement, abstraction, and willful misapplication of tbe property of the Lake National Bank of Wolfborough, N. 11. This hearing is upon demurrer to the indictment.</p>

<p>Customs Duties — Proprietary Preparation.</p> <p>A preparation called “Bovrill Wine,” labeled “Nutritious Tonic, composed of port wine, extract of beef, and extract of malt, and containing 17.90 of alcohol, was dutiable under paragraph 74 of the act of 1890, as a proprietary preparation containing alcohol, and not under paragraph 836, providing for still wines, etc.</p>

This was an appeal by Eugene Sandow from a decision of the board of general appraisers as to the classification for duty of certain horses brought to this country by him.

<p>This was an appeal by the United States from a decision of the board of general appraisers allowing the correction of the invoice of certain grain’ bags made in this country, and reimported, after-having been sent abroad.</p>

<p>This was an appeal by J. W. Haulenbeclt from a decision of the board of general appraisers as to the classification for duty of certain imported goods.</p>

This was an appeal by the United States from the decision of the board of general appraisers in respect to the classification for duty of certain articles of glass imported by Fensterer & Ruhe.

Tit is was an appeal by Brewer & Bros, from a decision of the board of general appraisers in respect to tbe classification for duty of certain flour bags.

<p>Customs Dottes — Classification—Thoroughbred Horses.</p> <p>In order that a borse of pure breed, imported specially for breeding purposes, should be entitled to free entry, under paragraph 4S2 of the act of 1890, it was requisite that proofs of pedigree and identity, as prescribed by the second proviso to that paragraph, should bo furnished to the customs officers; and, if this were not done, it was proper to assess the appropriate duty, and such assessment could not thereafter be disturbed by the court on proofs of pedigree, etc., produced before it.</p>

<p>This was an appeal by Hermann, Bternbach & Co. from a decision of the board of general appraisers in respect to the assessment of duties on certain merchandise.</p>

This was an appeal by Wilkens & Co. from a decision of the board of general appraisers as to the classification for duty of certain imported merchandise.

This was an appeal by Boss & Bro. from a decision of the board of general appraisers in respect to the classification for duty of certain glass vials, imported, filled with soda water.

This was an appeal by Simon & Co. from a decision of the board of general appraisers as to the classification for duty of certain imported merchandise.

This was an appeal by the importer from a decision of the board of general appraisers in respect to the classification for duty of certain imported furs.

This was an appeal by G-oodsell & Co. from a decision of the board of general appraisers as to the duties payable on orange and lemon boxes, composed in part of thin wood of American manufacture, exported as shooks.

This was an appeal by De Luze from a decision of the board of general appraisers in respect to the classification of champagne bottles imported filled.

<p>Customs Duties —Classiiuoatiost—Alizarine Blue.</p> <p>Alizarine blue, of a new form, not known at tbe time of tbe passage of the act of 1890, was nevertheless dutiable as such, under paragraph 478, and not as a coal-tar color, under paragraph 18.</p>

This was an appeal by Smith & Oo. from a decision of the board of general appraisers as to the classification for duty of certain imported merchandise. The importation was described by the board of general appraisers as follows: “The merchandise is crocus.

This was an appeal by the Fleming Cement & Brick Company from a decision of the board of general appraisers in regard to the classification for duty of certain brick imported by them.

This was an appeal by Park & Tilford from a decision of the board of general appraisers in respect to the classification for duty of certain merchandise imported by them.

This was an appeal by Jacot & Son from a decision of the board of general appraisers in respect to a protest against an alleged reassessment and reliqui'dation as to certain merchandise imported by that firm.

This was an appeal by the United States from a decision of the board of general appraisers in respect to the classification for duty of certain merchandise imported by Watson & Co.

This was an appeal by the United States from a decision of the board of general appraisers in respect to the classification for duty of certain lithographic cigar labels imported by Louis 0. Wagner,

This was a suit in equity by the St. Louis Corset Company against the Williamson Corset & Brace Company and others for alleged infringement of a patent for improvements in corsets.

<p>This is an appeal from an order of the circuit court, Northern district of New York, granting an injunction pendente lite against infringement of complainant’s patent.</p> <p>The patent in suit, No. 405,179, was granted to Pierre A. Raymond, June 11, 1889, for an improvement in buttons. Claims 1 and 3, only, are involved in this litigation. Suit was heretofore brought upon the same patent by this complainant against the Columbian Fastener Company, of which the present defendant, Littauer, was president; and at final hearing on pleadings and proofs the patent was sustained, claims 1 and 3 were construed, and held to be valid, and the device of the Columbian Company was found to infringe. The opinion, which contains a full and careful discussion of the patent and of the evidence introduced, will be found reported in 79 Fed. 795. No appeal from the decision in the suit against the Columbian Company appears to have been taken. Subsequently the defendants in the suit at bar began to use buttons of a different model from that which was found to infringe in the former suit, by attaching them to gloves which defendants’ firm made and sold. Believing this new model button to be also an infringement, complainant brought suit, and moved, before the same judge who had construed the patent in the Columbian Company Case, for an order granting injunction pendente lite. In opposition there were presented affidavits of the defendant Litiutter, and some others, several prior patents, and the tile wrapper! and contents. It is manifest from the opinion above cited that much of this evidence was before the court, in the Columbian Company Case. What new evidence, if any, is now presented, does not appear. Having once discussed the patent and the prior art in a comprehensive opinion, the judge who sat-at circuit granted an injunction against the new-model button, without writing anything further, and defendants have appealed.</p>

This was a suit in equity by John Prank and Jacob Prank, co-partners trading as John Prank & Son, against S. Wildman Hess and Rolando Silver, co-partners trading as Hess & Silver, for an alleged infringement of design patent Ho. 26,533, issued to Jacob Prank for a design for a cap.

This was a suit in equity by Deere & Co., a corporation, against the Rock Island Plow Oornnanv. for alleged infringement of a patent for improvements in corn planters. The circuit court dismissed the bill for want of novelty in the patent, and the complainant has appealed.

This was a suit in equity by the Detroit Motor Company against the Jenney Electric Motor Company for alleged infringement of a patent relating to electric switches.

<p>1. Patents — Combination Claims — Practicability.</p> <p>Where the claims are somewhat obscure, and it Is objected that the combination is not a practicable one, the court will apply the rule that the-claims are to be construed in the light of the specifications; and if, looking at both, the court is able to understand the meaning of the patentee in the-language of his claims, and as so understood the combination is practicable, It will give effect to them according to the apparent purpose.</p> <p>2. Same — Anticipation.</p> <p>The existence and prior public use of an article embodying the combination of a patent, In almost exactly the same form, will defeat the patent, whether the advantages of it were known to the manufacturers and users or not.</p> <p>3. Same — Invention—Cooking Stoves.</p> <p>The use of curved or swelling side plates along the side grooves of a cooking stove being known, the employment of the same construction at the-rear end of the side plates, alongside the vertical grooves, is merely an extended application of the same idea, or a duplication of the former construction to perform a like service, and is not patentable.</p> <p>4. Same.</p> <p>The Boal reissue, No. 11,402, for improvements in cooking stoves, consisting in the use of inwardly curved side plates joined to the flue plates, construed, and held to be void, in view of the prior state of the art, for want of patentable invention.</p> <p>5. Design Patents — Scroll Work on Stoves.</p> <p>In view of the ancient and common use of scroll work for the ornamentation of exposed surfaces, one cannot now claim broadly, under a design patent, the use of scroll work in general upon the margins of the sides and other prominent features of a stove. To be patentable, there must be something peculiar in the formation of the- scrolls themselves, or in their relative arrangement, so as to produce a distinct effect, affording a special utility beyond any ordinary work of the kind.</p> <p>6. Same.</p> <p>The Boal patent, No. 23,780, for a design for stoves, construed, and held< not infringed.</p>

This was a suit in equity by the Patent Button Company against the Consolidated Fastener Company for alleged infringement of letters patent No. 520,999, to Irving G-. Platt, for a device for driving and clinching tacks. The cause was heard on demurrer to the bill for want of patentable invention.

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was a suit by Edward N. Dickerson against Hugh D. Tinting for alleged infringement of a patent. The court below denied a motion for preliminary injunction, and the plaintiff thereupon appealed to this court.</p>

<p>This was a suit in equity by Etienne Salomon and George Schrade against the Garvin Machine Company for alleged infringement of a patent for improvements in friction clutches.</p>

This was a suit in equity by Benajah Williams against the American String Wrapper Company and Arthur L. Curry for alleged infringement of a patent. The circuit court dismissed the bill for want of equity (81 Fed. 200), and the complainant has appealed.

This was a libel in rem by Millard T. Lawrence and others against an unnamed flatboat or pile driver, of which the Southern Log-Oart & Supply Company are claimants.

This was a libel by William H. Serviss against William E. Ferguson and others, owners of tbe tug Governor, to recover damages for the loss of a scow. The circuit court entered a decree for the libelánt, and the respondents have appealed.

These were libels to recover damages resulting from a collision between tbe steamtug Job T. Wilson and tbe steamship Howard. Tbe court heretofore, on July 28, 1897, found both tbe colliding vessels in fault, made a decree for divided damages, and referred tbe cause to a master to ascertain tbe amount.

<p>Suit in equity by Henry J. King against William Lawson and others. Heard on motion for temporary injunction.</p>

This was an action at law by the Prescott & Arizona Central Railway Company against the Atchison, Topeka & Santa F6 Railroad Company and others.

<p>1. Assignments for Benefit of Creditors — Preference—Parties.</p> <p>Act Ky. 1806 provides that, in suits to set aside preferential transfers of property by an insolvent debtor, the transferee and the debtor are the only necessary parties defendant. Act Ky. March 16, 1894, relating to voluntary assignments, provides that property transferred in preference shall vest in the assignee, and he shall bring suit to recover same, having therein all the remedies of creditors. Held, that the provisions of the two acts give to the assignee not only the right to recover of the transferee the property fraudulently transferred, but also the right to investigate the bona tides of transfers of other property which may not have been fraudulent or preferential, and that, in a suit by an assignee to recover property conveyed in preference, in which the bill contains a prayer for general relief, the insolvent debtor is a necessary party.</p> <p>3. Same.</p> <p>An assignee, under a general assignment pursuant to the Kentucky statutes, does not represent the entire interest of the assignor in a suit to set aside a preferential transfer of property, since invalidating the transfer will reinstate as obligations against the assignor debts which were paid by the transfer, thereby making him directly interested in the suit and a necessary party thereto.</p>

<p>1. Public Lauds — Mined al Quarts.</p> <p>A patent granted under Act July 25, 18G6 (14 Stat. 239), which excepted mineral lands, is invalid, if at the time of the issue of the patent the land was known to be chiefly valuable for mineral.</p> <p>2. Same — Cancellation of Patent.</p> <p>Under Act March 3, 1887 (24 Stat. 556), authorizing suits to cancel patents to lands erroneously certified or patented, and to restore the title thereof to the United States, a patent conveying mineral lands knowingly purchased as agricultural lands will be canceled as having been erroneously ma.de.</p> <p>8. Bona Fidb Purchasers — Notice—Goon Faith.</p> <p>Purchasers oi! land erroneously patented as agricultural land are not bona, tide purchasers without notice, when they Knew al the time they purchased the same that it was mineral land; and purchasers who located and worked mineral claims thereon jirior to acquiring any interest therein are not purchasers in good faith.</p>

This was a bill in equity, which averred the following facts: Upon returning from a voyage of discovery, known as the “Norwegian Polar Expedition,” in 189(5, Dr. Fridtjof Nansen prepared a book relating to his voyage, and illustrated the same with many photographs taken in the course of the expedition.

This was a suit in1 equity by Harper & Bros, against William A. Holman and others, trading as A. J. Holman & Co., for alleged infringement of complainants’ right in the name of a book, and also for an infringement of their copyrights. A demurrer to the bill was heretofore overruled. See 84 Fed. 222. The cause is now heard upon a motion for a preliminary injunction.

<p>This was an intervening libel by Frank Loughery in the canse of the Black Diamond Coal-Mining Company against the steamer H. C. Grady. The suit was consolidated with various others against the same vessel, and all were heard together. The cause is now before the court on exceptions to the action of the clerk in disaEowing a docket fee for the intervener’s proctor.</p>

<p>Monopolies — Combination op Patent Owners — Infringement Suit.</p> <p>A combination among manufacturers of spring-tooth harrows, whereby a corporation, organized for the purpose, becomes the assignee of all patents owned by the various manufacturers, and executes licenses to them, so as to control the entire business and enhance prices, is void both as to the assignments and licenses, so that the corporation cannot maintain a suit against one of its assignors who violates “the agreement, for infringement.</p>

<p>1. Equity — Interlocutory and Final Decree — Cross Bill.</p> <p>Where a cross bill seeks affirmative relief with respect to matters germane to the original suit, and tbe controversy takes such a shape that a complete and final determination of the whole case as to all the parties to the original suit may be had upon the lines of a cross bill, then it seems a final decree may be entered on the cross bill.</p> <p>2. Same.</p> <p>A decree entered pursuant to an order pro confesso on a cross bill is not final, but interlocutory, where it leaves undetermined, as between the parties to the original and supplemental bills, the question of the legal ownership of property in dispute, and where, also, it is still necessary to refer the cause to a master for an accounting in respect to rents and profits.</p> <p>8. Same — Motion to Dismiss — Jurisdiction.</p> <p>It seems that no complete and final decree upon the whole case can be entered pursuant to an order pro confesso on a cross bill while there is pending and undetermined a motion to dismiss the original suit for want of jurisdiction.</p> <p>4. Same — Death op Party — Presumptions.</p> <p>Where a husband who was a co-defendant with his wife died pending the suit, and a decree was thereafter entered, held, that it could not be presumed in support of such decree that he had no other interest in the suit than as her husband.</p> <p>6.Same — Vacating Decree after 1'erm.</p> <p>Where a decree entered pursuant to an order pro confesso on a cross bill is clearly interlocutory in character, it remains within the control of the court, and may be reconsidered and modified or set aside at the subsequent term.</p> <p>6. Service op Subpoena.</p> <p>Delivering a copy of a subpoena to a person described as “an adult person who is a resident in the place of the abode” of the defendant is not a compliance with Equity Bule 13, which, in default of actual personal service, requires the delivery of a copy at the defendant’s dwelling house or usual place of abode, “with some adult person who is a member or resident in the family.”</p> <p>7. Same — Defects Cured by Decree — Presumptions.</p> <p>The rule as to the presumptions in favor of the validity and regularity of proceedings had before judgment or decree is applicable only in cases of collateral attack, and cannot be invoked to cure defects in the service of process, upon an application, in the same suit, to set aside a default decree, in order to permit a defense upon the merits.</p> <p>8. Default Decree — Setting Aside.</p> <p>A decree entered pursuant to an order pro confesso on a cross bill will be set aside where it appears that there were serious irregularities in the service of the subpoena on the cross bill, and that such bill was amended, between the date of the order pro confesso and the date of the decree, by withdrawing certain allegations, and striking out the name of another defendant.</p> <p>9. Practice — Entry of Orders — Negligence of Clerk.</p> <p>Dnder the rules of practice, counsel are entitled to rely upon the court officers to properly record in the minutes proceedings had in open court; and a default In making an entry cannot be used to the prejudice of parties who roly on (ho integrity of the official records.</p> <p>10. Opening- Default Dkcbem.</p> <p>A subpoena issued upon a cross bill was served upon the counsel of the original complainants who were nonresidents. They thereupon specially appeared to contest this substituted service, and moved to quash the, subpoena. There was pending at the same time, a motion made by them to dismiss their suit as to the cross complainant. Held, that pending these motions no binding decree could be entered against them hy default on the cross bill.</p> <p>11. Terms of Court — Vacating Order of Adjournment.</p> <p>After the court had adjourned sine die, an order was made vacating the order of adjournment, and opening the court for business. Thereupon an order was made permitting a defendant to file a petition and affidavits in support thereof to set aside a decree, and continuing the hearing thereof until the ensuing term. Thereafter the opposite party moved to expunge these entries, on the ground that the court had no power to reopen for the transaction (if business before the next term. JfrJcl that, as the business transacted was such as might have been done before (he judge at chambers, the moving party was not prejudiced, and the motion would he denied.</p>

<p>1. Jurisdiction of Federal Courts — Presentation of Jurisdiction of Questions — Motion to Dismiss.</p> <p>Under section 5 of the judiciary act of March 3. 1876, which imposes on the circuit courts the duty of dismissing a suit, if it appears at any time 'before final disposition that it does not really and substantially involve a controversy of which it may properly take cognizance, a motion to dismiss for want of jurisdiction may be considered by the court at any time before final judgment or decree.</p> <p>2. Same — Suit to Annul State Judgment.</p> <p>Complainants, claiming land in California, as collateral heirs of the deceased owner, filed a suit in a federal court to quiet title, against his natural daughter and others. By a second amended supplemental bill, they set up at length certain probate proceedings, to which they were parties, theretofore had in the superior court of San Francisco, which is a court of full and complete probate powers. Those proceedings respited in a final decree, affirmed by the state’s supreme court, adjudging that the lands had descended to such natural daughter. Complainants then alleged that the state court was without jurisdiction to make this decree, because the daughter, at the time of her father’s death, was a nonresident alien, incapable of becoming a naturalized citizen, and therefore incapable of inheriting, and because, further, complainants were the heirs of the deceased at the time of his death, and thereupon eo instante the title vested in them, so that no court could devest it. All the facts affecting the daughter’s capacity to inherit appeared upon the face of the record in the state courts. Held, that the case came within the rule that a federal court will not assume jurisdiction of a suit to vacate or annul a decree of a state court for alleged want of jurisdiction appearing on the face of the record.</p> <p>8. Equity Jurisdiction — Possession of Land — Remedy by Ejectment.</p> <p>A bill in equity was filed to obtain possession of land which at the time was in the possession of the public administrator, under state authority. Afterwards the land was surrendered to one of the defendants, to whom the title had been adjudged by the state court of probate jurisdiction. Still later complainants filed a second amended supplemental bill, field that, as the defendant was then in possession, there was an adequate remedy at law by ejectment, and the equity suit must be dismissed.</p>

This cause was heard on the petition of Christopher B. Dudley to establish priority over the mortgage of a judgment in his favor given for damages on account of a personal injury caused Tby negligence in the operation of the Front Street Gable Railway, prior to the appointment of a receiver herein.

<p>1. Interstate Commerce Law — Long and Short Hauls.</p> <p>It is not unlawful to charge more for a shorter than for a longer haul, when the circumstances and conditions are in fact substantially dissimilar, although the interstate commerce commission has made an order forbidding such charges in the particular case. Interstate Commerce Com’n v. Alabama M. R. Co., 18 Sup. Ct. 45, followed.</p> <p>2. Same — Effect of Competition.</p> <p>Competition between rival railroads, and not merely between rail and water carriers, is a factor to be considered in determining the substantial similarity or dissimilarity of circumstances and conditions under the fourth section of the interstate commerce law. Interstate Commerce Com’n v. Alabama M. R. Co., 18 Sup. Ct. 45, followed.</p> <p>8. Interstate Commerce — Long and Short Haul — Discrimination—Similarity of Conditions.</p> <p>The charging of a greater rate for a shorter than for a longer haul is not a violation of the fourth section of the interstate commerce law, when the rate charged' for the shorter distance is not in itself unreasonable, and the more distant point is a commercial center and large distributing point, where there exists strong competition, both by land and water, none of which conditions are present at the other point, as such difference creates a dissimilarity of “circumstances and conditions” within the meaning of the act.</p>

<p>Equitable Lien — Advances by Bane.</p> <p>A bank advancing money to stockmen for the purchase of stock, with the understanding that, according to the previous course of business, the stock would be shipped to commission merchants, sold, and the proceeds placed to the credit of the bank, for its reimbursement, gives the bank a right to such proceeds as against the commission merchants, who are aware of the understanding and previous course of business, and they cannot appropriate such proceeds to the payment of a debt due them from the shippers.</p>

<p>Custom — Equitable Lten — Declaration of Agent — Pleading.</p> <p>A firm purchased live stock, paying therefor with money borrowed from a bank under a promise that the proceeds of the sale thereof “should come back to the bank,” and consigned the same to a commission firm, who, in prior like consignments, had deposited the proceeds of sales to the credit of'such bank for the benefit of the consignors, but who applied a portion of the proceeds in this instance to the payment of a note owing to them from the consignors, who authorized such application. Prior to the shipment, an agent of ,the commission firm staled to the bank, but not in the presence of the consignors, that the proceeds would be deposited in the usual way, but it appeared that the bank did not rely thereon, but upon the good faith previously shown by the commission men. Held, that the bank had no equitable lien or interest in either the stock or in the proceeds of the sale, entitling a recovery from the commission firm of the amount retained by them from the proceeds of such sale. Bank v. Gillespie, 11 Sup. Ot. 118,137 ü. S. 411, distinguished.</p>

<p>Opinion on petition for rehearing.</p>

<p>L Parttes — Assignee of Life Policy — Rtght to Sue.</p> <p>The assignee of a life insurance policy, payable to the assured, his executors, administrators, and assigns, cannot maintain an action at law thereon in his own name in a state where the common-law procedure prevails.</p> <p>2. Federal Courts — Adoption of State Practice — Parties.</p> <p>Under Rev. St. § 914, where an assignee of a chose in action cannot sue thereon in his own name in the courts of a state, the same rule is obligatory on the federal courts held within such state.</p> <p>8. Parties — Right to Sue — Lex Loci Contractus.</p> <p>The fact that the assignee of a contract is authorized to sue thereon in his own name in the state where the contract and assignment were made does not give him that right in the courts of another jurisdiction.</p>

<p>1. Municipal Corporations — Sidewalks—Personal Injury.</p> <p>Charter provisions imposing upon abutting property owners the fluty of keeping sidewalks in repair, and making such owners primarily liable for any negligence therein, are for the protection of the city, not the traveler, and do not relieve the municipality of its duty to provide safe thoroughfares, nor release it from liability for damages for failure to perform the same.</p> <p>2. Same — Common-Law Liability.</p> <p>A municipal corporation is responsible for its negligence under its common-law liability, independent of any statutory declaration.</p> <p>3. Same — Notice.</p> <p>An action against a municipality to recover for personal injuries will not fail because notice was not given within 15 days after the injuries were received, as required by the charter and general law, when the injured person was by the accident rendered incapable of serving such notice within that time, but served the same as soon as she was able.</p>

<p>This was an action by Alexander Woodside and Isabella Woodside to recover on a policy of marine insurance.</p>

Action by Edgar Harding against the Minneapolis Northern Kail-wav Company. A verdict was directed for the defendant, and the plaintiff brings error.

This was an action of replevin by the John V. Harwell Company against George Hilton, assignee, and others, to recover goods purchased by defendant’s assignor under fraudulent representations. Heard on motion by plaintiff for judgment non obstante veredicto or for new trial.

<p>At Law. On demurrer to declaration.</p> <p>Assumpsit by Nellie Kavanagh against the Omaha Life Association.</p>

<p>This is an action by Dexter, Horton & Co., a corporation, against W. P. Sayward, Malcolm McDougall, and Mary McDougall, on a su-persedeas bond. Heard on demurrer to the answer.</p>

Action by Clayton and another against the Texas & Pacific Railway Company to recover (he value of colton destroyed after its delivery to the defendant as a carrier. There was a judgment for plaintiffs on a verdict directed by the court, and defendant brings error.

<p>This was a petition by Ho Quai Sin for a writ of habeas corpus.</p>

Joseph Jephet Ebanks was convicted of murder, and sentenced to death, and his application to the United States district court for a writ of habeas corpus was denied, whereupon lie appealed to the United States supreme court. Pending such appeal, the state court ordered that its sentence be carried out, and Ebanks brings this proceeding upon a writ of habeas corpus. Prior to the hearing herein, the state supreme court made an order staying the proceedings of the state court.

<p>This was an application for a writ of habeas corpus in behalf of W. H. T. Durrant, who was convicted by a state court of California of murder in the first degree, and adjudged to suffer the penalty of death.</p> <p>The petition for the writ in this case alleged, among other things, that prior to June 2, 1807, said Durrant was convicted in the superior court of the city and county of San Francisco, state of California, of the crime of murder in the first degree, for the alleged killing of one Blanche Bamont, and adjudged to suffer the penalty of death; that on the 2d day of June, 1807, application was made by said Durrant to the circuit court of the United States for the Ninth judicial circuit in and for the Northern district: of California for a writ of ha-beas corpus, alleging in his pefiilon therefor that said judgment of conviction was made and rendered without jurisdiction or authority of law, aDd in violation of rights secured to him by the fourteenth amendment to the constitution of the United States. rIhe application for the issuance of such writ was denied by said circuit court, and thereupon an appeal from such decision of the circuit court to the supreme court of the United States was duly taken. The petition in the present proceeding further alleged: “That said action of habeas corpus and appeal was duly docketed as number 42!) on the calendar of the said supreme court of the United States, at the October term thereof, 1807, and that no mandate showing the determination of the said appeal by the said supreme court of the United States was. on the 10th day of November, A. 1). 1807, nor has yet been, filed in the said circuit court of the United States;” hut that, nevertheless, the said superior court of the city and county of San Francisco did, on the 10th daj of November, 1897, made an order directing that its judgment convicting the'said Durrant of the crime of murder ho carried into execution by the infliction of the death penalty upon said Durrant on the 12th day o£ November, 1897. The petition further alleges that said order so made on the 10th day of November, 1897, “was had and taken without authentic or official information that said proceeding of habeas corpus had been considered or determined in the supremo court of the United States,” and that such order was “without power, authority, or jurisdiction in the said superior court of the city and county of San Francisco,” and was in violation of the laws of the state of California, and “contrary to and in violation of the constitution and laws of the United States of America, and particularly ill violation of article fourteenth of the amendments to the said constitution of the United States.” The petition for the writ of habeas corpus in this proceeding, was filed on the 11th day of November, 1897, and upon the hearing of the application therefor it was not shown by mandate from the supreme court of the United States, or other record evidence, that such court had rendered its judgment upon the appeal from the order of said circuit court, denying the former application of said Durrant for the issuance of a writ of habeas corpus; but the fact that said judgment of the circuit court was affirmed on the 8th day of November, 1897, had been telegraphed to and published in all the leading papers of the state of California cm the !Hh day of November, 1897, and the text of the opinion affirming such Judgment also published, and by reason thereof It was a matter of general notoriety In the state of California that such judgment of the circuit court had been affirmed, and the fact was not denied in the petition filed in this proceeding.</p>

<p>1. CONSTITUTIONAT, IjAw — AfFKAU—STAY OH' EXECUTION.</p> <p>A state statute (Pen.' Code Cal. §§ 1227, 1243) is not in violation of the federal constitution merely "because it does not provide that an appeal from an order directing execution, made after a Anal judgment of conviction, shall of itself operate to stay the execution of such judgment.</p> <p>8. Appeal in Habeas Corpus.</p> <p>Under Rev. St. §<j 751, 753, 754, and under section 5 of the Judiciary act of March 3, 181)1, and rules 35 and 36 of the supreme court (46 Fed. Hi.), promulgated May 11, 1891, the allowance of an appeal by the circuit or district court, or by some judge thereof or of the supreme court, is necessary to the perfection of an appeal; and, if an order of allowance is denied by the court, the party desiring to appeal must apply either to some of the other judges named for such allowance, or to the supreme court for a writ of mandamus in aid of its appellate jurisdiction.</p> <p>8. Discretion of Court.</p> <p>Where a judgment of conviction of murder in the first degree with sentence of death has been affirmed by a state supreme court, and an order of a federal court denying a writ of habeas corpus has afterwards been affirmed by the supreme court of the United States, it is within the discretion of a federal circuit court, on denying a subsequent application for another writ of habeas corpus, to refuse to allow an appeal to the supreme court from its order, when the only ground for the application Is an alleged irregularity of the state court in fixing a date for the execution, and when the only result would be to obstruct the execution of the state laws.</p>

This was an application for a writ of habeas corpus in behalf of Gut Lun, a Chinese woman, held for deportation under the exclusion laws.

<p>Application by C. R. Bennett for writ of habeas corpus.</p>

This is an appeal from a decision of the circuit court, Southern district of New York, which, affirmed a decision of the board of general appraisers, reversing a decision, of the collector of tbe port of New York in regard to the classification for customs duties of certain merchandise. The merchandise in question is a very light paper, soft, semitransparent, long-fibered, and dull-finished. It is highly absorbent, and for that reason is much used by dentists.

This was an appeal by the United States from a decision of the board of general appraisers reversing the action of the collector of the port of Charleston, S. C., in respect to the assessment of duty on an importation of ginger beer.

<p>Trade-Marks —Unfair Competition.</p> <p>Complainant had long sold “Hostetter’s Bitters” in bottles of a peculiar form and size, and established a large business therein. Defendants sold in demijohns spurious bitters, closely resembling the real article, labeling them “Hostetter’s Bitters,” with intent that they should bo sold by the drink at the bar as “Hostetter’s Bitters.” Held, that this was unfair competition, and should be enjoined.</p>

<p>This was a suit in equity by D. S. Morgan & Co. against Christian Maul for alleged infringement of a patent for an improvement in barrows.</p>

This was an appeal by James H. Gardiner and William H. Thorn-ley from}a decision of the hoard of general appraisers affirming the action of the collector of customs at San Francisco as to the classification for duty of certain imported merchandise. The circuit court affirmed the decision of the hoard, and the importers have appealed.

This was a suit in equity by the Pillsbury-Wa-diburn Flour-Mills Company, Limited, and Francis X. Hooper, against the American Wired-Hoop Company, for alleged infringement of letters patent No. 359,972, issued March 22, 3887, to F. X. Hooper and W. Hollings-worth, for a machine for printing on boards, and also No. 557,582, issued April 7,1896, for a printing- press designed especially for printing- barrel heads.

This was a suit in equity by James S. McDonald, trading under the name of J. S. McDonald & Go., and the Samuel Hano Company against Henry G. Miller and others, for alleged infringement of a patent. The cause was heard on demurrer to the bill.

This was a suit in equity by Edward J. Moore against the National Water-Tube Boiler Company for an accounting of royalties alleged to be due under a patent.

<p>Patents for Inventions — Anticipation—Corn Planters.</p> <p>Letters patent No. 326,44.9, issued September 15, 1885, to Levi I. Odell, for an improvement in check-rower attachments for corn planters, are not void for anticipation.</p>

<p>Patents — Novelty—WateivCj.osets.</p> <p>The Smith patent, No. 258,144, for an improvement in water-closets, consisting of a water connection wherein the devices for operating the valve are entirely within the water way with the valve stem projecting therefrom into the hopper, and actuated from within the hopper itself, is void for want of novelty.</p>

This, was a suit in equity by Friedrich Hohorst against the Hamburg-American Packet Company and others for infringement of a patent. The cause was heard on exceptions to the master’s report in respect to damages and profits.

<p>This was a libel in rem by Eugene Richards and others against the bark Topgallant to recover seamen’s wages.</p>

This is an appeal from a decree of the district court, Northern district of New York, sustaining a libel filed against the steamer Idlehour under the statutes of the state of New York providing for liens on domestic vessels for supplies, etc. The vessel was an excursion steamer plying in and near the harbor of the city of Buffalo and Niagara river points. The owner entered into a contract with one Dewitt 0.

<p>This was a libel by John Bury against E. A. McKay to recover seamen’s wages.</p>

This was a libel in rem by Frank W. Crocker and others against the barge Arkansas and her cargo of cotton, to recover compensation for salvage services.

This was a libel in rem by Ernest Heinrici and others against the schooner Laura Madsen, B. P. Basmussen, master, to recover seamen’s wages.

A libel was filed by the owner of the schooner Amaretta Mosher against the steamer Rochester in a cause of collision civil and maritime. The owners of the steamer answered thereto, and also filed a cross bill against the owner of the schooner. The district court at the hearing dismissed the libel, and pronounced for the cross libelant. The owner of the schooner appealed.

<p>1. Courts — Jurisdiction—Federal Question.</p> <p>A bill to restrain tlie enforcement of a city ordinance fixing the rates of charge by a water company, on the ground that such rates are so unreasonably low as to amount to a. hiking of the property of the water company without just compensation, presents a federal question.</p> <p>2. Mortgages — Rights ov Mortgagee-Injunction to Protect Mortgaged</p> <p>Property.</p> <p>A mortgagee has such an interest in the mortgaged property as entitles him to bring suit to restrain injury thereto.</p> <p>8. Same — Suit por Injunction — Parties.</p> <p>In a suit by the mortgagee of a water company to enjoin the enforcement of an ordinance fixing water rates, the mortgagor is a necessary party.</p>

This is a bill by Louis Post and others, as stockholders of the Beacon Vacuum Pump & Electrical Company, against such company and the Beacon Lamp Company, to rescind a transfer of the property of the former corporation to the latter.

<p>1. Mortgage Foreclosure — Surplus Proceeds — Junior Mortgagee — Estop-pel.</p> <p>Bill in equity by a junior mortgagee for an accounting from a bank, an elder mortgagee, for surplus proceeds of a foreclosure sale by tlie bank. At the sale tlie bank's special agent, authorized to bid a sum sufficient to cover the elder mortgage, by mistake exceeded his authority, and bid a larger sum. Held, that file bank was not estopped to set up the mistake and lack of authority, or to deny its receipt of the sum bid.</p> <p>2. Same — Equitable Relime.</p> <p>That failing to show that the bank had received any actual surplus, or to prove that ihe junior mortgage had any actual value, or to offer any evidence thereof except the bid made by the agent through mistake, the complainant had shown no substantial tide to equitable relief.</p>

This was a suit in equity by the Mercantile Trust Company against the Missouri, Kansas & Texas Railway Company, praying an injunction, accounting, and other relief. The cause was heard on exceptions to the report of a master, to whom were referred the questions arising on certain motions made by the complainant to strike out parts of the answer and pleas.

This was a bill in equity by Charles P. Chisholm, John A. Chisholm and Robert P. Scott, doing business under the firm name of Chisholm-Scott Company, against Zachariah Johnson, for alleged infringement of a patent. The cause was heard on a plea filed by the defendant.

This was a suit in equity by Joseph J. Kittel against the Augusta, Tallahassee & Georgia Railroad Company, the Carrabelle, Tallahassee & Georgia Railroad Company, and William Clark, and is brought up by cross appeals from the circuit court.

This was a suit in equity by Charles De Neufville against the New York & Northern Railway Company, the New York Central & Hudson Railroad Company, and others. The cause was heard on a motion for preliminary injunction.

This was a suit in equity by John M. Hamor against the Taylor-Rice Engineering Company. The cause was heard on the exceptions oí tbe receivers of the defendant, company to a claim against it, filed by Dwight D. Willard.

This is an action against the defendant and the sureties on his official bond as the auditor of Hardin county, Ohio, by which they bind themselves that he “shall faithfully discharge the duties of his said office” during the term thereof.

Action brought by defendant in error on an accident policy issued to her husband. The company defended on the ground that insured bad committed suicide. Trial to a jury, finding and judgment for plaintiff (defendant in error), and defendant appeals, challenging the sufficiency of the evidence, and alleging error in refusing instructions.

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

<p>1. Discovert — Order for Production of Books — Showing under Statute.</p> <p>A plaintiff in an action at law is not entitled, under Rev. St. § 724, to an order for the production by the defendant before trial of private books of account for the plaintiff’s inspection on an affidavit merely stating that affiant “believes” such books will tend to prove the issues in the mover’s favor, without stating any grounds for such belief,</p> <p>8. Same — Practice.</p> <p>Query as to the proper practice under Rev. St. § 724.</p>

These were 14 actions at law for libel, brought by the Union Associated Press and by William S. Brewer, respectively, against the Times.-Star Company and various other newspaper companies incorporated by states other than New York. The cases were heard on motions to set aside the service of summons.

This was an action by Josh Kelley against Lindsey Kelley, Ironton A. Kelley, and Joshua F. Austin, to charge them as partners in the conduct of the business of the Exchange Bank of W. D. Kelley after the death of said W, D. Kelley.

This was an action by Joseph H. Walls against the American Dredging Company to recover damages for personal injuries. In the circuit court verdict and judgment were given for plaintiff, and the defendant sued out tMs writ of error.

Ia Error to the Circuit Court of the United States for the Southern District of New York. This was an action by Dudley Porter and others against James M. Sigafus to recover damages for deceit. There was judgment on a verdict for plaintiffs, and defendant brings error. This causo comes here on writ of error to review a Judgment in favor of flio defendants in error, who were plaintiffs helow, against the plaintiff in error, who was defendant helow.

<p>Customs Duties — Hew Taiuff T.aw — Imvoetatiox of Lemons.</p> <p>The act of August 28, 1894, provides that, unless otherwise specially provided, there shall he levied upon all articles “imported from foreign countries or withdrawn for consumption” the rates of duty therein prescribed. An importation of lemons was entered a few days before the passage of the act, and, according to custom and the rules of administration of the port, were designated for examination on the wharf. On August; 29th the goods were examined there, having- remained in the custody of the government up to that time, and were then sold by the importers. Held, that they were dutiable under the new law.</p>

This was an appeal by Volkman, Stoll werclc & Oo. from a decision of the board of general appraisers sustaining the action of the collector in respect to the classification of certain imported merchandise. The merchandise in suit consisted of Victoria cachous, being small pellets, made in part of licorice, with a peppermint or wintergreen flavor, used by smokers and others to sweeten the breath.

<p>This was an appeal by A. L. Tuska from a decision of the board of general appraisers affirming the action of the collector of the port of New York in respect to the classification for duty of certain imported merchandise.</p> <p>The merchandise in question consisted of screens composed of cotton, paper, and wood, and were classified for duty by the collector under paragraph 373 of the act of October 1, 1890, as “embroidered articles,” at GO per cent, ad valorem. The importer protested, claiming that the articles should have been assessed for duty under paragraph 230, at 35 per cent, ad valorem, as furniture; or under paragraph 355, at 40 per cent, ad valorem, as manufactures of cotton; or under paragraph 414, at 50 per cent, ad valorem, as manufactures of which silk is the component material of chief value. The local appraiser reported that the cotton embroidery was the chief element of value, and duty was accordingly assessed under paragraph 373. On subsequent examination, by a special appraiser appointed for the purpose, it was ascertained, however, that paper was in fact the component material of chief value.</p>

This was an appeal by Dieckerhoff, Kaffioer & Oo. from a decision of the board of general appraisers affirming the action of the collector of customs for the port of'New York in respect to the classification for duty of certain imported merchandise. The merchandise in suit consists of mourning pins, imported in small brass boxes, which were packed in cases.

<p>Customs Duties — Classification—Glass Beads Strung.</p> <p>Glass beads strung, of two kinds, one consisting of small brown beads, which were a poor imitation of the precious stone known as “cat’s eye,”' and the other of larger size, and also an imitation of precious stones, held to have been dutiable as “imitations of precious stones composed of paste or glass, not exceeding one inch in dimensions, not set,” under paragraph 454 of the act of 1890, and not as manufactures of glass not specially provided for under paragraph 108.</p>

This was an appeal by Kauffman Bros, from a decision of the board of general appraisers affirming the decision of the collector of the port of New York in respect to the classification for duty of certain merchandise imported by them. The circuit court reversed the decision of the board (78 Fed. 804), and the United States have appealed.

This cause comes here upon appeal by the importer from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers, which reversed the action of the collector of the port of New York in classifying certain imported merchandise for duty.

This is an appeal by the importers from a decisión of the circuit court, Southern district of New York, affirming a, decision of the board of general appraisers which affirmed a decision of the collector of the port of .New York.

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. 807. The articles in question are measuring tapes, mounted for use. The tapes are woven with a warp and filling, in complete widths, with selvages, and are not spun or twisted.

This was a suit in equity by Frank L. Palmer and others against the John E. Brown Manufacturing Company for alleged infringement of letters patent No.. 308,981, issued December 9, 1884, to Frank L. Palmer, for a “machine for sewing or quilting fabrics.”

The complainant’s bill in equity in the circuit court for the Northern district of New York alleged the infringement by the defendants of claim 3 of letters patent No. 358,848, dated March 8, 1887, for apparatus for manufacturing sensitive photographic films, and of the four claims of letters patent No. 370,110, and of claim 3 of patent No. 370,111, each dated September 20. 1887, and each for a process of coating photographic paper, the three patents having been granted to…

This was a suit in equity by the Kansas City Hay-Press Company against H. F. Devol, George Devol, and W. S. Livengood, for alleged infringement of certain patents relating to bay-bailing presses. In the circuit court tbe bill was dismissed after a hearing on Hie merits (72 Fed. 717), and the complainant appealed.

These were six libels filed by seamen of the whaling schooner Era against Thomas Luce and others to recover the value of their lays, and also compensation claimed by them as their share in the profits of trading ventures carried on during the voyage. These libels were consolidated and heard together.

This was a libel In rem by the Tied R Steamship Company, Limited. against the North. 'American Transport Company, to recover money claimed under a charier party.

<p>1. MARITIME LlENS — NECESSARY REPAIRS.</p> <p>Repairs to a, vessel are necessary, within the meaning of the maritime law, where they are such as would he ordered by any prudent shipowner for the purpose of fitting and equipping her for efficient maritime service of the character for which she is designed or employed.</p> <p>3. Same — Repairs on Owner’s Order.</p> <p>The maritime law does not recognize any lien on a vessel for repairs furnished in a foreign port on the, direct order of the owmir in person. unless there is an agreement, express or implied, for a lien; but if there be a common understanding on the part of the repairer and the owner that the furnishing of necessary repairs is to proceed upon the basis of a lien or of extension of credit to the ship as well as to the owner or master, there is an implied agreement or contract for a lien, and a lien will he recognized and enforced.</p> <p>3. Same — PresumP'rross.</p> <p>Where necessary repairs have been furnished to a vessel in a foreign port on the direct order of the owner who is present, there is a presumption that the repairs were furnished, not on the credit of the vessel, but solely on that of the owner: but this presumption is not conclusive. It may he rebutted by an implied agreement; for a lion. Such implied agreement does not serve to create a lien de novo, but merely to overcome the presumption that credit is given exclusively to the owner.</p> <p>4. Same — Waiver of Lien — Givino Note — Presumptions.</p> <p>The men1 acceptance by a person, entitled to a maritime lien for repairs. of a promissory note of the owner of the ship repaired, does not defeat the lien. There is a presumption that the note is taken only as collateral security; and this presumption continues unless it affirmatively appears that the note was taken with an intention that it; should extinguish the lien.</p> <p>«5. Same — Innocent Purchasers — Advances.</p> <p>Neither a bill of salo nor a mortgage of a vessel given to secure an antecedent Indebtedness will confer upon the vendee or mortgagee the rights of a purchaser for value or affect the existence or enforcement of a maritime lien; but money advanced in consideration of the execution of a bill of sale or mortgage of a vessel will constitute the vendee or mortgagee a purchaser for value; and if the money lias been advanced without notice, actual or constructive, of the existence of a maritime Hen, the vendee or mortgagee will, in proceedings to enforce such lien, bo treated as an innocent purchaser for value.</p> <p>!!. Same — Enforcement op Lien — Unreasonable Delay.</p> <p>A maritime lien is not in any case directly defeated by an innocent purchase for value. The effect of such a, purchase is that proceedings for the enforcement of the lien must he instituted without unreasonable delay, and what is unreasonable delay must be tested by what constitutes a fair opportunity, by the exercise of reasonable diligence, to arrest the vessel.</p> <p>7. Sale op Vessel — Purchase prom Corporation by Its President — Rights op Third Parties — Notice.</p> <p>Where one claims title to a vessel under a bill of sale from a corporation, of which he was at the time president, he is, for the protection of innocent third persons, chargeable with knowledge of all material facts which would have been disclosed to him if he had exercised the duties of his office with reasonable circumspection.</p> <p>8. Maritime Liens — Libel in Rem — Costs.</p> <p>The fact that a libel in rem is filed for repairs before the maturity of a promissory note given for the price, and still held by.the libelant, does not defeat the suit, but at most merely affects the question of costs.</p> <p>(Syllabus by the Court.)</p>

This is an appeal from a decree of the district court of Minnesota awarding to the libelants 8500 demurrage damages. The decree was entered in that court on October 13, 1890, and the facts found are as follows: On .July 13. 1895, the steamship Nyan/.a, owned by libelants was chartered by John King and ,T. G. McCullough to convey a cargo of 2,012 tons of hard coal from Buffalo, N. Y., to Duluth, l\iinn.. and there deliver the same to the Pioneer Fuel Company, (he claimant.

<p>1. Towage — Liability oe Tug Owners.</p> <p>Tug owners are not insurers of the safety of their tows, but are only responsible for the exercise of suoh care 'as the service requires, and cannot be held- liable for a loss in the absence of proof of carelessness. Error of judgment respecting the weather at the time of starting, or in other respects on the voyage, is no ground of liability.</p> <p>2. Same.</p> <p>Where the captains of tugs engaged to tow a dry dock from Hoboken to Philadelphia waited three days while the wind was eastward and the weather bad, and on- the following morning, finding the wind in the northwest, the sky clear, and the storm signals taken down, started on the voyage, but encountered rough weather, resulting in the loss of the tow, held, that their failure to observe or heed the fact that the wind had passed around from the east northward instead of southward, was not negligence, as it did not sufficiently appear that a change in the one way rather than the other indicated a shorter period of good weather.</p> <p>8. Same — Defective Hawbek.</p> <p>Alleged defects in the hawser are not sufficient to charge the tug with negligence, where it appears that the hawser did not break until the tow was sinking, and therefore was free from any defects contributing to the disaster.</p>

This was a libel by E. A. Krueger and others against the American bark John and Winthrop to recover seamen’s wages. The defense to the action was that the libelants had shipped for an entire whaling voyage on the bark John and Winthrop, and while on such voyage attempted to burn and destroy the vessel, and Cor that offense the captain, after such investigation as he thought sufficient, suspended the libelants from duty and imprisoned them on board of the vessel.

Petition for limitation of liability. This proceeding was instituted by the petitioner in the district court, Southern district of New York, in consequence of a collision which occurred between the steamer Mexico and the steamer Nansemond, December 21, 1893. The Nansemond, as a result of the collision, sank, with her cargo, and all became a total loss. The Mexico sustained no damage.

This cause comes here upon appeal by both claimants from a decree of the district court, Southern district of New York, holding both the Shultz and the Little Silver in fault for a collision between the Little Silver and libelants’ schooner, Amos Briggs, in tow of the Shultz. 74 Fed. 574. The collision occurred about 11 a. m. on October 21, 1895, in the North river, between the New Jersey Central Ferry, on the Jersey side, and the Battery.

This was a hill for an injunction, filed in the state court by Xiuohs against the Jarvis-Conklin Mortgage Trust Company and others, and brought to this court by removal proceedings. Heard on motion to remand.

<p>This is a suit for the foreclosure of a mortgage by the Jarvis-Conklin Mortgage Trust Company against Willhoit.</p>

This was an action in which Frank E. Bates recovered a judgment against the International Company of Mexico'. The present hearing was in proceedings supplementary to execution, in which, on petition of Clarence L. Barber, assignee of the judgment, the court appointed a receiver for the defendant corporation. Defendant moves to vacate such order.

This was a suit by the British & American Mortgage Company of London, Limited, against Thomas W. Hawkins and Peter A. Buyck. There was a decree for complainant, from which the defendants appeal.

<p>This wits a proceeding in equity, brought by Robert M. Yardley, as receiver of the Spring Garden National Bank, against Samuel S. Sibbs, B. E. Shulenberger, executor of the estate of Samuel Boyce, deceased, Anna M. Jackson, and Albert F. Boyce.</p> <p>From the pleadings and proofs the facts aonear to be as follows:</p> <p>The Spring Garden National Bank, a. corporation organized under the national bank acts, was declared insolvent and closed on May 8, '1891. Subsequently a receiver was appointed. Samuel Boyce was then the owner of 28 shares of the capital stock of the bank, and of certain real estate and ground rents. On .Inly 28, 1891, Boyce conveyed the real estate and ground rents to Samuel S. Sibbs by a deed absolute on its face, and reciting a full consideration. On the same day Sibbs executed a declaration of trust, reciting that the consideration named in the deed had not been paid, and declaring that he held the premises in trust Cor Boyce for life, with 'remainder to sundry persons nominated by Boyce. The deed was duly recorded. The declaration of trust was not. On December 2, 1891, the comptroller of the currency ordered an assessment, of ¡8100 a share on all the shareholders in the bank. On or about December 5, 1891, Sibbs, under Boyce’s direction, placed mortgages on certain of the real estate, and sold the ground rents held by Mm in trust, and turned, over the proceeds to Boyce. On February 25, 1892, suit was brought against Boyce to recover the amount of the assessment on Ms stoek. Judgment was obtained March 26, 1892, for want of an affidavit of defense. A fi. fa. was issued thereon, and returned nulla bona. Boyce died October 28, 1893, leaving a will, by which he appointed It. E. Shulenberger his executor, and devised and bequeathed all Ms property to Anna M. Jackson and Albert F. Boyce, the remaining defendants. The bill averred that the conveyance of July 28, 1891, was made by Samuel Boyce with intent to hinder, delay, and defraud his creditors. Sibbs filed an answer, denying the existence of such an intent, and also denying any knowledge of such intent oil his part, and averring that he had acted in good faith, and had only carried out the purposes declared in the declaration of trust, and that at the lime of the conveyance to him Boyce o was possessed of other real estate, specifically described, which was more than sufficient to discharge his debts. This answer was supported, so far a.s his personal responsibility was concerned, by Sibbs’ testimony. The bill prayed (1) that Sibbs be required to account in this proceeding for the proceeds of the sale of the trust property; and (2) that the deed of conveyance from Boyce to Sibbs be declared void as against the complainant, and that the latter’s judgment be declared a lien on the property conveyed thereby.</p>

This is a bill by Anna L. Brown against James H. Walker and others to enjoin the enforcement of a judgment obtained by defendants against complainant. Heard on motion for preliminary injunction.

This was an appeal by the Central Car-Trust Company from a decree of the circuit court of the United States for the Eastern district of Pennsylvania, entered in the suit of Thomas C. Platt against the Philadelphia & Beading Railroad Company and others.

<p>Appeal from (he Circuit Court of the United States for the District ' of Indiana.</p> <p>On August 24. 180(5. John T. Mills. Jr., filed a judgment creditors’ bill in Ihe circuit court of the United States for the district of Indiana against the Louisville, New Albany & Chicago Railway Company, and procured ihe appointment of a receiver, who took possession of the property. On November 12, 180(5, the Farmers’ Loan & Trust Company and John H. Barker, trustees, filed their bill of complaint to foreclose a mortgage upon the property of the railway company, known as the “consolidated mortgage,” securing $4,700,000 of 6 per cent, consolidated bonds. The foreclosure was based upon an allegation that; default was made In the payment of the interest upon the bonds secured by said mortgage maturing on October 1, 1896. On the same day the Central Trust Company of New York and John H. Stotsenburg, trustees, filed their bill of foreclosure against the railway company to foreclose the mortgage, known as the “general mortgage.” securing an issue of $2,800,000 5 per cent, general mortgage bonds. This foreclosure was based upon an allegation of default in the payment of interest on the said bonds maturing November 1, IS9C>. On November 12, 1896, the two foreclosure bills were, by order of the court, consolidated with the creditors’ bill in one cause, to proceed under the title of the Farmers’ Loan & Trust Company of New York and John II. Barker, complainants, against Louisville, New Albany & Chicago Railway Company. On December 14, 189(5, the Central Trust Company of New York and James Murdock, trustees, filed their bill of foreclosure against the railway company to foreclose the mortgage known as the “equipment mortgage,” securing bonds whereof $709,000 of principal were alleged to be outstanding; the said equipment mortgage being a first lien upon a largo amount of equipment, and a subordinate lien upon the property of the railway company covered by its oilier mortgages. The foreclosure was based upon allegations of default in tlie payment of the interest maturing on December 1, 189(1. On December 21, 1890. the last-mentioned suit was consolidated with the other consolidated suit under the same title. On December 24, 1896, the Farmers’ Loan & Trust Company and John H. Barker, as trustees, filed an amended and supplemental bill, which related to the property of the Orleans, West Baden & French Lick Springs Railway Company and the Bedford & Bloomfield Railroad Company, which last-mentioned companies had conveyed their properties, by way of mortgage, to the said trustees, as additional security for the consolidated bonds. On January 13,1897, the Orleans, West Baden & French Lick Springs and Bedford & Bloomfield Companies were made parties defendant to the bill of the Farmers’ Loan & Trust Company and John H. Barker. The defendant railway corporations filed an answer to the several bills of foreclosure, which did not put in issue any of the material allegations of said bills. The Central Trust Company, Stotsenburg, and Murdock, trustees, filed an answer to the bill of the Farmers’ Loan & Trust Company and Barker, admitting the allegations of the bill and amended and supplemental bill of those complainants. On January 23d, the pleadings of all the parties defendant to the original bills being upon file, and there being no material allegation of any of the foreclosure bills in issue or denied, and no proofs being' necessary in order to render a decree upon the foreclosure bills, application was made to the court for a decree of foreclosure and sale. On the same day, the Louisville Trust Company filed an intervening petition.. This petition merely alleged the incorporation of the Louisville Trust Company, the fact that it was the holder of 125 bonds of $1,000 each, made by a corporation known as the Richmond, Nicholasville, Irvine & Beattyville Railroad Company, and alleged to have been guarantied by the Louisville, New Albany & Chicago Railway Company, which remained unpaid, and the interest upon which was in default; that the Louisville, New Albany & Chicago Railway Company was authorized to make the guaranty, and that its right and power to do so had been adjudged in a suit in the circuit court of the United States for the district of Kentucky; that the Louisville, New Albany & Chicago Railway Company was indebted to the petitioner in $125,000 and interest; and it prayed that the petition might be filed, and an order entered authorizing petitioner to appear in its own behalf, and in behalf of all others holding similar claims, and take such steps and proceedings as it might be advised by counsel. This intervening petition did not contain allegations tending to controvert any matters contained in the foreclosure bills, and tendered no issue whatever. Upon said petition, an order was made that the Louisville Trust Company and the Kentucky National Bank be admitted to appear in the proceedings in the cause, each on its own behalf. No answer or other pleading of any kind was tendered to the court or was ever suggested. On the same day, the court made and entered the decree of foreclosure and sale. The decree directed foreclosure of -the several mortgages, but reserved full power to adjudge with respect to the income of the receivership and the rights of creditors in and to the same. On February 27, 1897, more than a month after the decree was entered, the appellant filed another petition. In this petition various charges and allegations were made tending to negative the right of the trustee to foreclose their mortgages, and the prayer of the petition, was to the effect that the decree of foreclosure and sale should be set aside; that the consolidations by which the mortgagor company was created should be adjudged to be void; that its mortgages should be declared to be invalid; that the assets and liabilities of the railway company should be ascertained; and that the amount of such assets should be declared to be a fund to be distributed among general and unsecured creditors; and, further, that an order be entered commanding some of the parties to the consolidated cause, but not all, to appear within a time to be fixed by the order of the court, and to plead or make answer to the allegations of the petition. No such order was ever made or applied for. But on March 9, 1897, the day before the day fixed for the sale under the decree, it appears that the petition of February 27, 1897, came on to be heard, and was argued by counsel, and that the court refused to vacate the decree of foreclosure and sale, or to postpone or adjourn the sale. The sale was duly made to F. P. Olcott, Henry W. Poor, and Henry O. Rouse, as a committee for the bondholders. On the day of the sale, viz. March 10, 1897, application was made to confirm the sale and the master’s report; and, all the parties to the foreclosure hills appearing and consenting, an order of confirmation was entered. The Louisville Trust Company, on May 1, 1897, filed its petition of appeal and assignment of errors, and said petition was allowed. The appeal is taken from the decree of foreclosure and sale, and from the order denying the application io set the same aside.</p>

This was a suit in equity by the Fox Solid Pressed Steel Company against the Schoen Manufacturing Company and others to restrain them from violating a contract. The circuit court dismissed the bill, with costs (77 Fed. 29), and the complainants have appealed.

<p>1. Injunction against Trespass.</p> <p>Injunction will lie against trespass whenever the injury threatened would be irreparable, or when the trespass is a continuing one, so that a single action for damages would not be an adequate remedy.</p> <p>2. Same — Cutting Timber.</p> <p>Injunction against cutting trees is not limited to shade and ornamental trees, but extends to the cutting and carrying away of trees from forest lands, when the trespass is a continuing one, which would result in denuding the land of valuable timber.</p>

<p>1. Civn. Service Law — Power of Removal.</p> <p>With the exception of section 13 of the act of January 16, 1883, which prohibits promotion, degradation, removal, or discharge of any officer or employe for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose, no legislative declaration expressly bearing upon removals from office is made.</p> <p>2. Same — Executive Rules.</p> <p>Civil service rules promulgated by the executive, so far as they deal with the executive right of removal, are hut expressions of the will of the president, and are regulations imposed by him upon his own action, or that of heads of departments appointed by him. They do not give the employes within the classified civil service any such tenure of office as to confer upon them a property right in the office or place.</p> <p>3. Same — Injunction. ,</p> <p>A court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another. Priddie v. Thompson, 82 Fed. 186, disapproved.</p>

<p>1. Receiver — Courts of Primary and Local Jurisdiction.</p> <p>In the settlement of riie accounts of a receiver of a corporation, in the federal court of primary jurisdiction, the directions previously given by that court will control in matters of general administration; and the directions of the federal court of another circuit, by which lie was also appointed receiver, will control in matters of local administration in the latter circuit, and the question as to what shall be done with personal property within the jurisdiction of the local court, and incumbered with a local lion, is preeminently a matter of local administration.</p> <p>2. Tax — Lien ox Assets — Local Law.</p> <p>The question of whether local taxes upon the property of a corporation, in the hands of a receiver appointed by the federal court of the circuit where the property is, are regular, and constitute a lien on the property, is a question of the local law, and is to be determined by that court, and its determination thereof is to be followed by the court of primary jurisdiction in another circuit.</p> <p>B. Samis.</p> <p>In such a case, however, the court of primary jurisdiction, when enlightened by the argument of all parties to the litigation, including some not represented in the local court, may appropriately indicate its views as to the course best calculated to save the property from sacrifice, and at the same time preserve the-rights and secure payment to the local creditor; but an order embodying such directions is subject to the approval of the local court.</p>

<p>1. Pledge — Sale by Pledgee.</p> <p>Tlie owner oí stock, wlio has pledged the same under an agreement giving pledgees the right to sell at public or private sale, without advertisement or notice, at their discretion, cannot compel an accounting by the pledgees and purchasers of a portion of the stock, or the establishment of a trust with respect to the same, because such stock was sold for less than Its value, when, a month prior to the sale complained of, other shares of the pledged stock were sold a.t the same price, with the consent of the owner, and at the time of the latter sale neither the pledgees nor the purchaser had knowledge of a transaction calculated to enhance its value, and the sale was conducted by the pledgees in good faith, and with regard to the interests of the owner.</p> <p>2. Same — Fraud.</p> <p>A pledgor of stock, who specially consented to a sale of a portion of the same to a particular person at a price proposed by him, will not be allowed in equity to assert that his consent extended only to sales made to that person, with whom ho claims to have been an interested party, and with whom he shared the profits at the expense of his creditors.</p> <p>S. Pledge — Hubstitutiox of Collateral.</p> <p>A person who substituted stock owned by him for that pledged by another cannot claim that he did not know that, under the terms of the pledge as originally made, the stock was subject to public or private sale, without advertisement or notice, when the substitution was under such oimunsiancos as tó lead the pledgee to believe that there had been an exchange' between the parties, and the substituted shares were the property of ihe pledgor, to be dealt with as those originally pledged.</p>

In pursuance of stipulation filed under section 649 of the Revised Statutes, this case was tried by the court without the intervention of a jury. Finding of Facts.

<p>1. Public Lands — Indemnity School Lands — Forest Reservations.</p> <p>Bev. St. §§ 2275, 2276, as amended by Act Feb. 28, 1891, do not authorize a state to select indemnity lands in lieu of school lands which, after they have been surveyed and the title has thereby become vested in the state, are included within the exterior boundaries of a forest reservation.</p> <p>2. Same — School Lands Within Limits of Reservation.</p> <p>School lands the title to which has vested in a state by their survey are not thereafter subject to the disposal of congress, and, although included within the limits of a forest reservation, they are not a part of such reservation.</p> <p>3. Same — Construction of Statute.</p> <p>Act Feb. 28, 1891, amending Bev. St. §§ 2275, 2276, does not contemplate an exchange of lands between a state and the United States, but only indemnity for loss to a state by reason of lands to which it is entitled being’ disposed of by the United States.</p>

This was an action of replevin to determine the title to a refrigerating' plant. All the defendants pleaded the general issue, and one of them (Frederick Albert L’Oeble) pleaded, in addition, property in himself. At the trial it appeared that Frank X. Rieger, the owner of a brewing plant, procured from the Case Refrigerating Machine Company, under an agreement dated 16th January, 1893, a refrigerating plant.

Action by Frank Kowalski, by Ms next Mend, against the Chicago Great Western Railway Company, submitted on motion for new trial after verdict by a jury in favor of plaintiff.

This was an action for personal injury, brought by Frank Columb against the Webster Manufacturing Company. The circuit court sustained a plea of former adjudication, and the plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the Northern District of Georgia.</p> <p>Action by Mahulda O. Adams against the Southern Railway Company. A demurrer to the declaration was sustained, and plaintiff brings error.</p>

This was an action of assumpsit, brought by Frederick Arthur G-o-e Ouseley, in his own name, against the Lehigh Valley Trust & Safe-Deposit Company, as executor of Amable B. Bonneville, deceased.

<p>GUARANTY — Notice of Acceptance.</p> <p>Where a guarantor signs the guaranty without request of the guarantee, and in his absence, for no consideration except future advances to be made to the principal, the writing is a mere proposal, requiring acceptance and notice thereof to the guarantor in order to bind him. The mere recital of a nominal consideration, without stating whether it comes from the guarantee or the principal, does not affect this rule.</p>

<p>Proceeding for the disbarment of Joe Kirby.</p>

<p>This was an indictment against Edward Murphy for violation of Rev, St. § 5286.</p>

Indictment for Murder. There are two indictments against the defendant, Philip P. Carter, for murder; one under section 5391 of the Revised Statutes of the United States, and the other under subdivision 1 of section 5339 of the same statute, which reads as follows: “Every person who commits murder within any fort, arsenal, dock yards, magazine, or in any other place or district of the county under the exclusive jurisdiction of the United States, * * * shall suffer death.”…

<p>Application by the United States, under Rev. St. § 1014, for a warrant for the removal of Noah Lee to the Eastern district of Texas lor trial.</p>

<p>This was a petition by A. W. Alexander for a writ of habeas corpus.</p>

<p>Indictment — Section 5480, Rev. St. — Scheme to Defraud — False Representations — Intent to Convert not Alleged.</p> <p>Upon an indictment under section 5480, Rev. St., for the use of the mails in furtherance of a scheme to defraud, the scheme is sufficiently alleged by averments setting forth an endeavor by the defendants tó induce persons to send their money to defendants for investment in a business enterprise by certain specified false representations and allurements, even though no intent by the defendants to convert such moneys to their own use is stated. Held, also, that a count is sufficient, which charges a scheme to induce persons to send their money to the defendants for pretended investment in'a business enterprise on account of the persons who send the money, but with the real intent to convert the money to the defendants’ own use. Held, further, that in a count upon a scheme to defraud by means of false representations, it is necessary to aver clearly and definitely the making of some specific representations, and the falsity of the same.</p>

<p>This was a proceeding to remove the prisoner, John Price, to the District of Columbia, for trial, on the charge of larceny.</p>

This is an appeal by the United States from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers, which affirmed the decision of the collector of customs at the port of New York in respect to the classification for duties of certain merchandise.

<p>Trade-Names — InfiuxgemNt—UffB'Ani CompetitioN.</p> <p>One selling goods in packages prominently marked with his own name and initials, not collocated with other words tending to induce greater confusion than would naturally result, therefrom, cannot he restrained hy another of the same name, having a long-established business thereunder, oven though the former expected that unscrupulous dealers would offer his goods as the goods of the latter.</p>

<p>This was a suit in equity by the Air-Brush Manufacturing Company against Thayer and others for alleged infringement of a trade-mark..</p>

This was a suit in equity by the Sprague Electric Railway & Motor Company against the Union Railway Company and others for alleged infringement of a patent.

This was a suit in equity by the Tannage Patent Company against William B. Clerk & Co. for alleged infringement of certain patents for processes of tanning hides. The circuit court granted a preliminary injunction, and the defendants have- appealed therefrom.

This was a suit in equity by the Tannage Patent Company against the Ford Morocco Company for an alleged infringement of certain patents for improvements in processes of tawing hides. In the circuit court an order was entered granting a preliminary injunction, from which the defendant has appealed.

<p>Patents — Invention—Safety Checks.</p> <p>Tlie Berry patent, No. 2<iS,988, for an improvement in safety checks or other papers representing value, consisting in the use of marginal tallies of figures comprising one or moro compound columns, each cornposed of two or more simple columns of figures of different denominations, the simple columns feeing arranged out of line with and one below another, is void for want of invention, in view of prior United States patent No. 163,4G2 to E. Rezean Cook. 77 Fed. 833, affirmed.</p>

This was a suit in equity by John E. Hanifen, trading as John E. Hanifen & Co., against the E. II. Godshalk Company and E. H. Godshalk, for alleged infringement of letters patent Ho. 374,888, dated December 13, 1887, to Levi By water, for improvement in knitted fabrics, whereby an article is produced having the appearance of looped or Astrakhan cloth.

<p>Patents — Interpretation and Infringement — Dynamo-Electric Machines.</p> <p>The Scribner and Warner patent, No. 496,449, for an improvement in perforated pole-pieces for dynamo-electric machines, if valid at all, is very narrowly limited by the prior state of the art, as shown in the Hochhausen patent, No. 404,848, and others. And claim 2, which is for a machine “having consequent pole pieces cut away or perforated on a line coincident with a plane passing through the axis of the armature shaft, such perforations being symmetrical with regard to said plane, whereby a uniform magnetic field is produced, regardless of the direction of rotation of the armature," is not infringed by machines made under the Loveridge patent, No. 500,403. 81 Fed. 192, affirmed.</p>

This was a suit in equity by the Palmer'Pneumatic Tire Company against Henry A. Lozier to determine a question of interference between certain patents, both covering “a new and useful improvement in fabrics.”

This was a suit in equity by the National Harrow Company against Pulaski D. Wescott and others for alleged infringement of a patent for a spring-tooth harrow.

<p>1. Patents — Invention—Mechanical Skill- -Speing-Tootii TIarrows.</p> <p>The adaptation of spring-teeth to harrows being once accomplished, It only remitred mechanical skill to attach them by devices already known to adjustable beams already in use, so as to make a spring-tooth harrow, with teeth adjustable both independently on the bars and in series, by turning the bars themselves.</p> <p>2. Same.</p> <p>The Cobb patent, No. 224,273, for an improvement in spring-tooth harrows, in which the teeth are adjustable both separately and in series, is void for want of invention as to claim 1. '</p>

This was a suit in equity by the National Harrow Company against Pulaski D. Weseott and others for alleged infringement of a patent for improvements in roller spring-tooth harrows and cultivators.

This was a suit in equity by the William Sehollhorn Company against the Bridgeport Manufacturing Company, Willis F. Hobbs, Ellie N. Sperry, and Adolf Schatz, for alleged infringement of certain patents for inventions.

These were libels by the owners of 16 tugs against the steam lighter Dayton and her cargo, to recover salvage. The suits were consolidated on motion.

<p>This was a libel in rem by Anton Joseph Steindl against the steamer Lady Furness to recover seaman’s wages.</p>

<p>This was an appeal from the clerk’s taxation of costs. For report of the opinion on the merits, see 2(5 O. C. A. 879, 81 Fed. 239.</p>

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

<p>Towage — Chartered Scow — Implied Notice — No Lien.</p> <p>The C. Steamboat Co. was in the habit of towing boats belonging to S. & S. on the North river, and rendering to them in New York monthly accounts for towages for payment. S. & S. chartered the above-named two scows to one Yan Burén, and, according to the testimony, gave notice of the charter by telephone to the steamboat company, and that S. & S. would not be responsible for any bills. The company’s testimony denied such notice, and alleged that the telephone message was to tow the scows to Fishkill and send bills to Yan Burén. Others in the company’s office testified that inquiries were made as to the standing of Yan Burén. The bills for these towages were rendered at Fishkill, and not to S. & S. until several months afterwards. Meld, that the libelant company was at least sufficiently put upon inquiry as 'to the facts, and that the towages were no lien upon the scows.</p>

<p>This was a libel in personam by E. Lowry and others against the United States Shipping Company to recover money alleged to be due from respondents as charterers of a steamship.</p>

This was a libel in admiralty to recover demurrage, alleged to be due under a charter party. On final hearing on libel, answer, and stipulation of tacts.

<p>This was a libel .in personam to recover demurrage under a charter party.</p>

<p>This was a libel in rem by O’Brien and others against the Cramp to recover Seamen’s wages.</p>

<p>This was a libel in rem by the owners of the schooner Mabel Jordan against the steamship Illinois to recover damages for a collision. The owners of the Illinois also brought in the tug Cladisfen as a corespondent. In the district court it was held that the Illinois alone was in fault (65 Fed. 123), and the cause was referred to a commissioner to report the amount of damages. The commissioner having now filed his report, the hearing is upon exceptions thereto.</p>

<p>Oollisioit — Sail Vessel — Tug and Tow 2,600 Feet Long at Sea — Fog.</p> <p>Tke tug Harold was proceeding southward past Cape Charles with two barges in tow, each over 200 feet long, and each upon a separate hawser about 1,100 feet long behind the tug. The H., hearing the fog horn of the schooner M. hound north nearly ahead, starboarded her wheel, and passed some 300 or 400 feet to the eastward of the schooner, but the schooner collided with the Crockett, the first barge, about 1,100 feet behind the H. Lights could be seen only a few hundred feet distant. No signal was given by the tug, indicating her change of course to the schooner, nor any signals to the tow to co-operate with the tug by starboarding, nor was any signal given from the barges to indicate their positions. There was no lookout forward on Iho Crockett to observe the change in the lead of the tug’s hawser to port, and in consequence of this, the Crockett, when the schooner’s lights were first seen, erroneously put her wheel to port, in order to go to the westward of the schooner, though she very quickly changed her wheel to starboard. The schooner was going under nearly all sail at about six miles an hour, field, that the navigation of each of the vessels was blnmable; that navigation in fog- with such long- tows without previous arrangement for signals to indicate the position of the tow, or to secure cooperation by the tow with the tug in keeping out of the way, is dangerous, and at the risk of the tug, whose legal duty it is to keep the wlioJe fleet out of the way under the rules of navigation; since without such previous provisions, it is impossible for the tug to keep the fleet out of the way of sailing vessels, or to give the latter sufficient opportunity to keep away themselves. Held also that the Crockett was here liable for negligence in her own i>art of the navigation, and that the schooner was also liable for immoderate speed.</p>

<p>Collision — Thwarting Maneuvers — Bounding Buoy — Misunderstanding of Signals — Bad Lookout — Failure to Stop — Inspectors' Rule 3.</p> <p>Tiie steamship S., outward bound, soon after rounding the Bay Ridge buoy, and about 40 minutes after sunset, came in collision with the steamship P., inward bound, striking the latter at an angle of about three points on the starboard side. When first seen, the vessels were nearly head and head, the S.’s red light before she had rounded being seen a very little on the P.’s starboard bow. The P. ported and very soon saw the S.’s two colored lights, and then her green light only on the P.’s port bow, whereupon the P. starboarded hard. The S. first noticed the P.’s red light on her starboard bow after rounding the buoy, and ported, .resulting in collision as above stated. The P. on first porting gave a signal of one blast, and on afterwards starboarding, a signal of two’ blasts, both of which, it was alleged, were answered by the S. with similar whistles. They were neither heard nor answered by the S. There was great confusion and contradiction in the testimony as to bearings and the time of slowing and stopping’. If chi, that the maneuvers of each were thwarted by the other; that they were less than one-half a mile apart when first observed, very much nearer than claimed, through lack of a proper lookout on each; that neither was justified in starboarding, and the P. was hound under inspectors’ rule 3 to reduce her speed more quickly than she did, upon an evident misunderstanding between the ships; and that the S. was further to blame for inattention to the P.’s signals.</p>

Libel and cross libel to recover damages caused by a collision between the steamships May and Nympliaea in the Lower Bay, New York Harbor.

This was a libel in rem by John S. Summers, owner of the steamer C. C. Martin, against the steamer Oneida, to recover damages alleged to have been caused by a collision between the two boats in the Little Kanawha river.

<p>COIJjISIOH — Nkgmgbht Anchorage.</p> <p>A master -who, on a Sark evening, in spite bZ high wind and an approaching storm, anchors his schooner in the usual way, with only one anchor out, when he might have used two, and leaves no one on hoard to watch during the night, is guilty of negligence; and his vessel is liable for damages caused by dragging her anchor in the storm, and colliding with another vessel, anchored in a proper place. It is no excuse that others cared for their vessels, on the same occasion, in the same way.</p>

<p>1. COURTS — Final Record — Following State Practice — Rules.</p> <p>In an action at law, brought in a United States circuit court, in Ohio, against some 40 defendants, plaintiff moved for an order dispensing with or remodeling certain records, and modifying the requirements as to papers on writ of error. Held, that what constitutes the final record in the circuit court is a matter regulated by the statutes of Ohio, which the court cannot change, and by the rules of the circuit court heretofore established.</p> <p>2. Appeal and Error — Transcript—Rules— Final Record.</p> <p>What shall constitute the transcript upon which a case may be carried 1o the circuit court of appeals is a matter regulated by the acts of congress and the rules and regulations of that court, which the court below has no power to change, and it cannot overhaul the record, after final determination, and, without consent of both parties, remodel it, for the convenience of the plaintiff in error, or to save him expense.</p>

<p>Courts — Practice—Uniting Legal and Equitable Actions.</p> <p>Seeking recovery under one complaint against a corporation for goods sold and delivered to it, and against an individual alleged to have an interest in its business, and the full control, management, and disposition of its property and assets, is an improper joinder of legal and equitable causes of action, and will not be permitted in the federal courts, though allowable in the courts of the state where the action was brought.</p>

This was a suit in equity by Walter M. McCain and others against the city of Des Moines and its officials to enjoin them from exercising any jurisdiction over certain territory included in the recently extended limits of the city. The cause was heard on motion for a preliminary injunction and demurrer to the amended bill.

This was a suit in equity by Daniel L. Duffy and others against Samuel M. Jarvis, trustee, to remove a cloud upon title. The defendant demurred to the bill.

This suit was commenced September 22. 1892, by S. E. Couch against Theodore H. Wood, in the district court of Crockett county, Tex., in the ordinary form of trespass to try title, under the Texas statutes, to recover 15 sections of land in Crockett county, with an additional count to remove a cloud alleged to be cast upon the title by the assertion of some claim of title by the defendant.

This was a suit in equity by Jolm I. Blair against the Silver Peak Mines, a corporation, and L. J. Hanchett, for the foreclosure of a mortgage. The cause was heard upon demurrer to the hill of complaint.

<p>1. Equity — Dismissal of Bill — Receivers’ Certificates.</p> <p>When a circuit court of the United States takes and exercises jurisdiction upon a record apparently authorizing it, and orders the issuance of receiver’s certificates, which are sold to bona fide purchasers, and it subsequently appears that by reason of collusion of the parties in bringing the suit the jurisdiction is defective, and the cause must therefore be dismissed, the court nevertheless has power, as a preliminary to dismissing it, to protect the receiver’s certificates by directing a sale of so much of the property in the receiver’s hands as may be necessary for that purpose.</p> <p>2. Same — Intervening Petitions.</p> <p>A court of equity, in which intervening petitions are filed, asserting liens upon or interests in property which it has placed in the hands of á receiver in an original suit, may retain jurisdiction of such interventions, even though it subsequently appears that the original suit was collusively brought, and should have been dismissed at the outset, had the facts then been made to appear.</p>

This was a suit m equity by the Fidelity Insurance, Trust & Safe-Deposit Company against the Boanoke Iron Company for the foreclosure of a mortgage. For prior proceedings, see 08 Fed. 628, and 81 Fed. 439. The cause is now heard on application for the distribution of a balance remaining in the receiver’s hands.

This was a suit in equity by Charles F. Zimmerman, as receiver of the Dakota National Bank, against Frances Gf. Carpenter, as executrix of Charles C. Carpenter, deceased, to recover the amount of an assessment made by the comptroller of the currency upon shares of the bank’s stock.

<p>On a motion to confirm the sale of the defendant company’s property.</p>

This was a bill in equity by James M. Couper, assistant postmaster at Atlanta, Ga., to enjoin the postmaster, William H. Smyth, from removing complainant from his office. Complainant claimed that be was protected by the civil service law.

This was an action for libel by De Freitas against the New York News Publishing Company. There was judgment upon a verdict for plaintiff, and defendant brings error.

On Motion to Dismiss. On the 25th of June, 1896, Robert B. Lee, assuming to be the administrator of the estate of P. B. Hudson, brought this suit in the state court, from which it was removed, upon a policy of life and accident insurance granted to the decedent, during the currency of which it is alleged he received fatal injuries. Process issued and was served in due course of law.

In the court below an intervening petition was filed by the administrator of .Tames Donahue in a foreclosure suit brought against the Chicago & Northern Pacific Railroad Company, to recover for the death of the deceased, who was killed in an accident at Forty-Fourth street, in the city of Chicago, on -April 1, 1891.

<p>1. Appeal — Review—Reconsideration of Question on Second Appeal.</p> <p>A question which has been settled by the decision of an appellate court will not be again considered by such court in the same suit.</p> <p>2. Jurisdiction of Federal Court — Citizenship—Evidence.</p> <p>Where the evidence is sufficient to support a finding that a plaintiff left the state of his residence, where the action was brought and the defendant is domiciled, without intention to permanently change his domicile, a federal court is justified in taking the case from the jury, and directing its dismissal, as one not properly within its jurisdiction.</p> <p>8. Damages— Action for Personal Injuries — Evidence of Poverty of Plaintiff.</p> <p>In an action for personal injuries, evidence of the poverty of plaintiff and his relatives is irrelevant, and its admission is error.</p> <p>4. Same — Measure for Loss of Earnings.</p> <p>The measure of damages for an injury depriving a plaintiff of his earning power is not the amount he might probably earn during his expectancy of life, but the present value of such earnings.</p> <p>6, Trial — Argument of Counsel.</p> <p>It is error to permit counsel, over objection, to state in argument an erroneous rule of damages, or to introduce into his argument matters outside the evidence, and having a tendency to mislead the jury as to the true measure of damages, and to allow the same to go to the jury without correction.</p> <p>6. Master and Servant — Injury to Employe — Railroads.</p> <p>Where plaintiff, a brakeman, had access to the rules of the company relating to his employment, he was chargeable with notice of their requirements; and when such rules were reasonable, and they required plaintiff to inspect the links and drawheads of the cars making up the train on which he was employed, and he failed to do so, he cannot recover for an injury resulting from a defective link. If the defect was discoverable by a proper inspection, he was guilty of contributory negligence, and, if not, it was an assumed risk of his employment. Per Pardee, Circuit Judge.</p> <p>7. Same — Railroads—Inspection of Cars.</p> <p>While it is the duty of a railroad company to cause inspection of its cars, and also those of other companies handled on its road, it is not held to the same measure of thoroughness in the inspection of foreign cars received for through transit over its lings as in case of its own cars, the care required being determined by what is reasonable under the circumstances.</p> <p>McCormick, Circuit Judge, dissenting.</p>

This was a petition for a writ of babeas corpus by Jesse G. Crain, bringing before the court for review the proceedings of a naval court-martial.

<p>Henry E. Pettus was indicted for perjury committed in an election contest, and demurs to tlie indictment.</p>

This was an indictment against John D. Hart for alleged violation of the neutrality laws, by furnishing transporta lion for a military expedition directed against the Spanish government in Cuba. The defendant was convicted in the court below (78 Fed. 868), and thereupon sued out this writ of error.

This was a suit in equity, brought by Edgar O. Silver and Silver, Burdett & Go., a "New Jersey corporation, against liosea E. Holt, praying an Injunction against the publication and sale oí certain musical compositions, and for an accounting of sales and profits made by defend» ut.

This was a suit in equity by Societe Anonyme du Mitre Chamber-land Systeme Pasteur and the Pasteur-Ohamberland Filter Company against M. H. Allen and the Allen Manufacturing Company. The case was heard on an application for a preliminary injunction. This is a bill by the plaintiff as the assignee of Charles Eduard Chamberland, claiming as the American patentee of the well-known Pasteur filter. The patent involved is that of February in, 1S8S, — No. 330,585.

<p>This was a suit in equity by Isaac E. Palmer againsf Cornelius C. Guriien and Edmund Steiner for alleged infringement of a patent for improvements in hammocks.</p>

Tbis was a libel in rem by Jobn Curtin against tbe schooner Asher W. Parker to enforce an alleged lien for supplies. Tbe district court dismissed tbe libel on tbe ground that libelant bad lost bis lien by laches, and tbe latter has appealed.

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

<p>1. Removal of Causes — Local Prejudice.</p> <p>Under section 2 of the judiciary act of March 3, 1875 (18 Stat. 470), as amended by Act Aug. 13, 1888 (25 Stat. 433), relating to removal of suits to the circuit court on the ground of prejudice or local influence, the evidence necessary to support the federal jurisdiction does not have to prove morally that the petitioning defendant cannot obtain a just decision in the state court, but it is only necessary to present to the circuit court evidence suitable to the case, and sufficient to prove legally that prejudice and local influence does exist which will naturally operate to the disadvantage of the defendant in the trial of his case before a state tribunal.</p> <p>2 Same — Effect of State Statute.</p> <p>A state law which merely authorizes a change of venue, in the discretion of the court, on the ground of local prejudice, without giving to a defendant the right to remove the cause, does not affect in any way his right to remove it into the circuit court.'</p>

<p>1. Quieting Title-Equity Jurisdiction — Oil and Gas Leases.</p> <p>One in possession of lands under oil and gas leases may maintain a suit to quiet title against others claiming possession under other leases.</p> <p>2. Equity Jurisdiction — Disposing of Whole Oase.</p> <p>When a court of equity has obtained jurisdiction of a controversy, in order to make effective such jurisdiction, and to give due force to its decrees, it will proceed to dispose of all questions properly presented by tbe pleadings, and fairly pertaining to the full and equitable disposition of the cause.</p> <p>8. On. and Gas Leases — Construction—Watver of Forfeiture by Lessor.</p> <p>A stipulation in a lease of oil and gas lands to the effect that the lessee shall, within a given time, complete one well, “unavoidable accident” excepted, on pain of forfeiture, or else pay the lessors a certain amount per acre per annum after the time for completing such well shall have passed, will be deemed to have been waived by a recognition by the lessors of the unavoidable character of accidents by which such completion is prevented, coupled with assent to and acquiescence in such delay.</p> <p>4. Same — Abandonment of Rights by Lessee.</p> <p>By numerous lenses, in substantially the same terms, obtained from different parties, a lessee acquired the exclusive right in a largo territory “of drilling and operating for petroleum oil, and gas.” He stipulated to give the lessors a certain proportion of the oil obtained, and pay them a fixed sum annually for each paying gas well; and he was required, on pain of forfeiture, to complete one test well within the territory in one year from the dates of the leases. Held, that he did not, immediately on the performance of this latter condition, become vested with an absolute right for 10 years to the oil and gas privileges In the whole territory, but was bound, within a reasonable time thereafter, to 'search for these minerals on the premises described in each lease, and a failure to do so as to some of the leases was a,n abandonment thereof.</p> <p>6. Same — “Lease Subject to Prior Lease.”</p> <p>Where, in a subsequent lease of such abandoned property, a clause is inserted to the effect that it is to be held subject to tbe original lease, such clause is to be construed as meaning that the lessors intended to incorporate into their contract the fact that they had advised their lessee that the land had been theretofore leased, and that he was io take it subject to the old lease, with the understanding that if the latter was valid he should take nothing by the contract, but that if it was invalid the conveyance should then stand as a contract binding upon the parties.</p>

Suit in equity by M. A. Cisna, E. E. Lucas, E. D. Rinear, L. C. Waller, A. A. Lewis, S. • J. Goodsell, Thomas McCart, and II.

<p>1. Vendor’s Lien — Purchase-Mo nicy Mortgage.</p> <p>Whore, in a contract for the salo of real estate, the parties agree that the purchaser is to have time for the payment of the whole or any part of the purchase money, and that the vendor shall have a lien upon the property as security for a deferred payment, to be evidenced hy a mortgage, and a mortgage is accordingly executed by the purchaser before the conveyance of title lias been consummated, the conveyance of the title, and the mortgage evidencing the vendor’s lien, are in law one transaction, and the title passes from the vendor to the purchaser cum onere.</p> <p>2. Dkei> — Escrow—Premature Delivery to Grantee.</p> <p>Where' a vendor’s deed, and the vendee’s purchase-money mortgage and the notes secured thereby, are deposited in escrow with a third party, who delivers the deed to the vendee before the happening of the event upon which delivery was conditioned, the vendor may thereupon rely upon the delivery in escrow as a sufficient legal delivery to make the liability of the vendee on his promissory notes absolute, and to render the mortgage effective.</p> <p>3. Mortg vgk — Prior Equities — Notice.</p> <p>One who, at the time of loaning money on mortgage, has notice that the mortgagor has not made full payment for the property, and that the deed conveying the same to him is in escrow, is put upon inquiry, and charged with knowledge of facts which he might have acquired in the exercise of ordinary diligence and prudence.</p> <p>4. Same.</p> <p>Notice of a prior unrecorded mortgage is sufficient to deprive a subsequent mortgagee of priority, even (hough he has already advanced part of the amount secured by the later mortgage, if, when he acquires nolice, he is still In a position to rescind his agreement with the mortgagor, and resume possession of the sum already advanced, without suffering any loss.</p> <p>5. Same</p> <p>In order to entitle a mortgagor to priority over a prior unrecorded mortgage, he must establish that at the time of the delivery of the mortgage to lum the mortgagor had obtained possession of the property.</p> <p>6. Waiver.</p> <p>In order to constitute a waiver of an existing right, the mere actions of a person, in the absence of an express agreement of surrender, must be such as to evince clearly an Intention in the mind of the actor to make the surrender.</p>

<p>Replevin- — Judgment.</p> <p>In an action for claim and delivery of personal property, wliere the complaint demands alternative relief, and there is no finding by the jury that the property itself cannot he returned, a judgment for the plaintiff must, under Gen. St. Nev. §§ 3201, 3224, be entered in the alternative for the possession of the property or its value in case a delivery cannot be had.</p>

This was an action of ejectment by J. W. Buchanan against C. Denig. and others. At the trial a special verdict for plaintiff was returned, subject to the opinion of the court upon a question of law reserved.

This cause comes here on a writ of error to review a judgment of the circuit court, Eastern district of New York, in favor of defendant in error, who was plaintiff below. The action was brought to recover damages for personal injuries sustained by plaintiff while in the employ of defendant (the plaintiff in error) at its coal mines near Wilkesbarre, Pa.

This is a writ of error to review a judgment of the circuit court for the Southern district of New York, in an action at law brought by William E. Marchan!, hereinafter called the plaintiff, against the Lehigh & Hudson Kiver Kailway Company, to recover damages for personal injuries occasioned by the negligence of the defendant, a railroad company and a common earlier of passengers.

This was a suit in equity by Kent K. Hayden, as receiver of the Capital National Bank of Lincoln, Neb., against the Chemical National Bank of New York, to recover payments alleged to have been made by the former to the latter in contemplation of insolvency. The circuit court, after a hearing on the merits, dismissed the bill (80 Fed. 587), and the complainant has appealed.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal by Lillian Eussell from a decision of the board of general appraisers affirming the action of the collector as to the rate of duty on certain theatrical costumes admitted free, under bond, for temporary use, and not re-exported. The circuit court reversed the decision of the board (78 Fed, 808), and the United States have appealed.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal by Schieffelin & Co. from a decision of the board of general appraisers in respect to the assessment of duty on certain books imported by them. The circuit court affirmed the decision of the board, and the importers have appealed.</p>

<p>1. Patents — Limitation of Claims — Centrifugal Process for Creaming Milk.</p> <p>In the process of creaming milk described in the Houston and Thomson patent, No. 239,059 (assigned to Theo. Bergner), the cream is thrown from the spinning vessel by centrifugal force, while the skim milk is removed from the saíne vessel by the action of a pump. The specification and drawings suggest no way for removing the skim milk otherwise than by tbe pump. If claims 5, 6, and 7 be valid at all, they must necessarily be limited to tbe process described in the patent, in which case appellees do not infringe.</p> <p>2. Same — Anticipation.</p> <p>If the eighth claim is to be distinguished from either of the others, and is to cover an intermittent process whereby the skim milk gradually fills the spinning vessel until all the cream is expelled from a given batch of milk, when the spinning of the vessel stops and the skim milk flows out by gravity, then such claim is anticipated in the prior art.</p>

This was a suit in equity by Frances C. Buck against Frank Timoney for alleged infringement of patent No. 499,206, granted June .13,1893, to James A. Buck, for improvements in brick-mold sanding machines. The circuit court, after a hearing on the merits, entered a decree for complainant for an injunction and an accounting on the first claim of the patent. See 78 Fed. 487, where a full statement of the facts will he found in the opinion of the circuit court.

<p>This was a suit in equity by the Thomson-Houston Electric Company against the Union Railway Company for alleged infringement of letters patent No. 495,443, granted April 11, 1893, to the administrators of Charles J. Van Depoele, for an improvement in traveling contacts for electric railways. The cause was heard upon motion for a. preliminary injunction under claims 2 and 4 of the patent.</p>

<p>1. Patents — Anticipation.</p> <p>A patent cannot, as an anticipation, properly have implied into it, from necessity, more than it fairly shows, to make it represent an operative structure. What is required and not so shown is left for later inventors.</p> <p>2. Same — Fountain Penholders.</p> <p>The Stone patent, No. 2(50,134, for a fountain penholder wherein the ink is drawn to the nibs of the pen by capillary attraction between a feed plate and the pen, held not anticipated, valid, and infringed, as to claims 2 and 4.</p>

<p>This was a suit in equity by the Fenton Metallic Manufacturing Company against Samuel W. Chase, the St. Louis Art Metal Company. and others, for alleged infringement of a patent for an improvement in bookcases. Tbe patent was heretofore bold invalid on defendants’ motion to vacate a default order for a preliminary injunction. 73 Fed. 831. The cause is now on final hearing.</p>

<p>Shipping — Charter of Facet — Option to Extend — Consideration.</p> <p>Under a charter of a steam yacht for two months, at a fixed sum paid, fully equipped for a voyage to Galveston, with an option to the hirer of extending the charter at pro rata rates by giving 15 days’ notice, the original consideration, together with the promise to pay pro rata rates, is a sufficient consideration for an extension thereof by exercising the option; so that if, through lack of equipment and unseaworthiness at the beginning of the original voyage, the yacht breaks down during the extended period, to the charterer’s injury, he may recover therefor.</p>

<p>This was a libel in rem by A. G. Hall and others against the steamship Barnstable to recover damages resulting from a collision. The .Turret Steam Shipping Company^ Limited, claimant and owner of the Barnstable, filed a petition against the Boston Fruit Company, her charterer, to enforce an alleged ultimate liability of the latter, on the ground that it was responsible for the ship’s navigation.</p>

<p>Appeal from the District Court of the- United States for the Southern District of New York.</p> <p>On. the morning of November 8, 1895, the bark Hales, owned by John B. Stahl and others, collided with the steamer Niagara, owned by the New York & Cuba Mail Steamship Company, and was entirely lost, with her cargo. The owners of the bark libeled the steamer to recover damages to the bark and her freight. The captain and crew joined in this libel to recover the value of their personal effects, which were also entirely lost. Lawrence Johnson and others, the owners of the cargo on board the bark, filed another libel against the steamer to recover the value of the cargo. The Niagara was very slightly injured. The alleged faults of the steamer were in proceeding at an immoderate rate of speed in a fog, in not giving signals with her steam whistle, in not maintaining a sufficient lookout, in not coming to a stop before the collision, and in not avoiding the bark. The faults of the bark which were alleged in the answer were in not sounding fog signals, in not attending to the whistles of the Niagara, in having no lookout in attendance upon his duties, in not being sufficiently manned, and in failing to have and use an efficient mechanical fog horn. The district court found that each vessel was in fault, and upon the libel of the owners of the cargo a decree was given in their favor for ¥27,140.57, its full value, and in the action brought by the owners and crew of the bark a decree was entered in favor of the officers and crew, except the master, for the value of their effects, which amounted to $425.28. The losses of the owners and master of the bark were extinguished by the set-off which the Niagara was entitled to in respect to the cargo, because half the value of the cargo exceeded the one-half value of the bark, — her whole value being about $16,000, —her freight moneys, and the effects of her owners lost therewith. The crew were not found to have been privy to the bark’s fault. The owners of the bark appealed from the decree holding her at fault, and the claimant of the steamer appealed from both decrees. If the facts found by the district court should be found by the appellate court to be true, no criticism was made upon the provisions of the decrees in regard to the distribution of the damages.</p>

<p>1. Colusión — Sail with Steamer and Tow.</p> <p>Tlie fact of Raving a tow upon a liawser does not absolve a steamer from the duty of keeping clear of an approaching sail. 75 B'ed. 845, affirmed.</p> <p>2. Same — Lights.</p> <p>The fact that the light of a schooner, seen on the port bow of a steamer, did not change its bearing, held to have been sufficient notice that the schooner was approaching on a crossing course, so that the failure of the steamer to change her course or stop placed her in fault. 75 Fed. 845, affirmed.</p> <p>8. Same — Change of Course in Extremis.</p> <p>Alleged error of a schooner meeting a steamer, in going to port instead of to starboard, held no ground of liability, where the change was made only after the steamer’s failure to alter her course had produced extreme danger of collision.</p>

<p>1. Collision — Schooner with Tow — Speed in Fóg.</p> <p>About four miles an hour, against a heavy sea, in much frequented waters, during a fog, hdd not immoderate speed for a schooner capable of much greater speed, which was able, by reason of being well under control, to avoid actual collision with a tow of unusual length.</p> <p>2. Same — Long Tows at Sea — Inefficient Means of Communication.</p> <p>It is negligent navigation for a tug and tows, extending nearly 'two-thirds of a mile, to go to sea without providing some efficient means of communication from one to the other in emergencies.</p>

<p>Tills was an action at law' by Hatcher's administratrix against H. G-. Wadley and Nannie S. Wadley. The suit was commenced in the state court, and was removed to this court by the defendants. It has now been heard on a motion to remand because the record was not filed in time.</p>

<p>This was a bill in equity by the American Loan & Trust Company against (he Vermont Central Railroad Company and others for foreclosure of a mortgage.</p>

This was a creditors’ suit by Clotilde Lilienthal against Charles ■A. Drucklieb and Julius C. Drucklieb. The cause was heard on 'exceptions to the master’s report.

<p>Application for Mandatory Injunction.</p> <p>This was a bill filed by Bluthenthal & Bickart, residents and citizens of the Northern district of Georgia, against the Southern Railway Company, a corporation of Virginia, and a resident and citizen of Virginia. Bluthenthal & Bickart were engaged in interstate commerce in the state of South Carolina, and other states, and they were engaged several months prior to the filing of their bill in shipping goods consisting of whiskeys, brandies, wines, beer, and similar articles, in original packages, into South Carolina, and there selling the same through their agents. In view of the dispensary law of South Carolina, they were compelled to sell such goods in original packages in that state, and to ship the goods into the state in original packages. Beginning on or about August 1, 1897, they commenced making these, shipments into South Carolina, and the Southern Railway Company received such shipments, and continued to receive them until on or about September 11, 1897. Such shipments were received by the company with a release of liability signed by Bluthenthal & Bickart. On September 11, 1897, Bluthenthal & Bickart were notified by the railway company that it would refuse to accept further shipments of original packages. On the day following, a shipment of original 'packages of liquors was tendered to the railway company, and by it refused, although freight charges were offered in advance, and Bluthenthal & Bickart agreed to sign any release which the railway company would require. The agent of the railway company exhibited to Bluthenthal & Bickart a circular issued by the company, which read as follows:</p> <p>“Southern Railway Company. General Freight Department. Transportation of Interstate Commerce Shipments of Spirituous and Halt Liquors to Points AVithin the State of South Carolina. Notice to Shippers and Connecting Lines.</p> <p>“Counsel having decided that spirituous and malt liquors in bottles, when not packed in cases or casks, are not. in proper shipping condition, and that the usual form of release will not relieve the company from liability in case of damage by wreckage, notice is hereby given that on and after September 16, 1S97, shipments of spirituous and malt liquors in glass, loose, not packed in cases, casks, or kegs, will not be accepted by this company for transportation.</p> <p>“Issued September 9, 1897. H. F. Smith, General Freight Agent.</p> <p>“Effective September 16, 1897.</p> <p>“Approved: J. H. Culp, Traffic Manager.”</p> <p>It was charged that the reason given by the railway company was not the real reason of their refusal, but charged that this railroad, with other railroads running into South Carolina, had entered into a conspiracy with the authorities of South Carolina by which the roads agreed to refuse to transport the goods of orators and others engaged in similar business into the state of South Carolina in original packages. It was further charged that the state ol South Carolina was engaged in the business of buying and selling spirituous and malt liquors, and wished to prohibit all other persons from engaging in ■such business in that state. It was stated in their bill that the points to which they wished to ship the original packages in South Carolina were reached only by the Southern Railway Company, and that it was necessary for them to replenish their agencies at said places, and that irreparable damage would result unless the railway company was compelled to accept the shipments. They offered and tendered said company shipments of original packages packed in wooden boxes, which tenders of shipment were refused.-</p>

<p>DECREE ON AX'PMAL — MODIFICATION AFTER END OF TERM.</p> <p>A motion to modify an order of affirmance will be denied, when the motion is filed icing after the term at which the order was entered.</p>

<p>1. Statute of Frauds — Agreement to be Performed within One Year.</p> <p>An agreement by which a licensee of a process is given exclusive rights, for one year, with the option to then surrender his claim, or to continue his exclusive rights for "the further term of sixteen years, is a contract “not to be performed within one year from the making thereof,” and hence unenforceable under the statute of frauds, unless in writing.</p> <p>2. License — Ejection not to Terminate.</p> <p>Where a license for the exclusive use of a process allows the licensee within one year to elect to either abandon or continue it, his suit pending the year to restrain violation of it by the licensor constitutes a final election, and renders the agreement mutually obligatory.</p> <p>3. Statute of Frauds — Conflict of Laws — Law of Forum.</p> <p>A statutory prohibition in a given state against actions upon oral agreements not to be performed within one year relates to the remedy and procedure, and is, therefore, applicable to an action in that state, although brought upon a contract valid and enforceable under the laws of the state where it was made and was to be performed.</p> <p>4» Pleading — Statute of Frauds..</p> <p>In a suit in equity to enjoin the violation of a contract, an answer denying the making of the contract is sufficient to let in the defense of the statute of frauds.</p> <p>5. Federal Courts — Statute of Frauds — Effect of State Statute.</p> <p>The statute of frauds of a state is applicable to a suit in equity brought in a federal court of that state.</p> <p>6. Equity Jurisdiction — Bill to Restrain Violation of License.</p> <p>Where an exclusive licensee of a process seeks relief for alleged violation thereof by the licensor, the suit is properly one of equitable cognizance, both because an action at law would not afford such certain, complete, and beneficial relief, and because it would be impossible at law to accurately determine how much the complainant would lose from inability to secure his exclusive rights.</p>

This was a suit in equity by Elmer E. Pope and Calvin N. Dodson against William Gr. Hoopes and others for reformation of a contract and for specific performance thereof.

This was a suit by W. Vance Brown and others against the Cranberry Iron & Coal Company for partition of certain mineral land. In the circuit court a decree was rendered for defendant, and the complainants have appealed. :

This was a petition by Richard H. Timmonds against the United Htates to recover compensation alleged to be due for working overtime as a government employé. In the circuit court judgment was given for the defendant, and the plaintiff sued out this' writ of error.

On the morning of January 31, 1893, the Southwestern Limited, a passenger train of the plaintiff in error, hereinafter called for brevity the “Railway Company,” bound from St. Louis to Indianapolis and the east, by reason of a switch negligently left open, ran upon a siding, and collided with a train of 18 oil-tank cars, filled with petroleum oil, standing in the yards oí the company at Wann, now East Alton, about 20 miles from East St. Louis.

This was a motion by William Foster under the Indiana statute to revive a judgment at law against Henry Crawford. An order of re-vivor was entered in the court below (80 Fed. 991), and the defendant sued out this writ of .error. This court, on January 3, 1897, affirmed the judgment (88 Fed. 975), but the appellant has filed a petition for a rehearing.

<p>1. Circuit Court of Appeals — Jurisdiction—Constitutional Questions.</p> <p>Where, in a suit in the circuit court, it is claimed that a law of a state is void be.cause it contravenes the constitution of the United States, the circuit court of appeals has no jurisdiction of the case, although it may also involve the consideration of many other questions.</p> <p>3.- Statutes — Retrospective Effect — Construction</p> <p>In a statute relating to judgments “rendered or to he rendered,” the use of the word “rendered” demonstrates the legislative intention to make it operative upon judgments already entered when the statute was enacted.</p> <p>3. Judgments — Statutory Change as to Interest — Retrospective Effect —Constitutional Question.</p> <p>At the date of rendering a certain judgment in Arkansas against a county of that state, the Arkansas statutes (Mansf. Dig. c. 109, p. 934, §§ 4740, 4741) provided that judgments should carry interest from the day of signing thereof, until the effects should he sold or satisfaction made. Shortly thereafter, and on March 21, 1893, an act went into effect amending section 4741 by further providing that “no judgment rendered or to be rendered against any county in the state on county warrants * * * shall hear any interest after the passage of this act.” Acts 1893, p. 145. Held, on appeal from an order canceling the judgment upon payment of its face, with interest to March 21,1893,. that the statutory intent was to include judgments entered before its enactment, hut that as it was claimed that the statute, as thus construed, contravened article 1¡ § 10, of the constitution of the United States, relating to the obligation of contracts, the circuit court of appeals had no jurisdiction of the case.</p>

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

This was an appeal by Wotton & Rumler from a decision of the board of general appraisers as to the classification of certain merchandise imported by them.

This was an appeal by Victor Koechl & Co. from a decision of the board of general appraisers as to the classification for duty of certain merchandise imported by them.

This is a suit brought by plaintiff in the circuit court of the United States for the district of North Dakota to restrain ihe defendants from the. use of the word “Oastoria,” claimed by it as a trade-mark.

This is a suit by the American Strawboard Company against the Elkhart Egg-Case Company for damages and injunctive relief for the alleged infringement of letters patent No. 533,831, issued to William E. Williams on January 29, 1895, and by him duly assigned to the complainant.

<p>.1. Patents — Invention.</p> <p>There is no invention in employing the well-known spiral spring to hold a bicycle brake from the tire by bending the spring around the axis of the brake, and having portions of it pressing on the head and the brake.</p> <p>2. Same — Bicycle Brakes.</p> <p>The Jeffery patent, No. 312,473, for improvements in bicycles, is void as to claim 11, covering a spring brake, because of anticipation and lack of invention.</p>

This was a suit in equity hy William G-oldie and others against the Diamond State Iron Company and others for alleged infringement of certain patents relating to railroad spikes and spike machines. The circuit court rendered a decree iu favor of complainants (81 Fed. 173), and the defendants have appealed.

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

<p>Compromise and Settlement — Patent Suits — Entry op Decrees.</p> <p>The real parties in interest in suits on patents owned by them respectively agreed upon a settlement based upon the principle that each patent was valid for the particular device described therein, and not in conflict with the other. The agreement then provided, among other things, that each party would consent to the entering of an injunction in any case to properly protect the rights of tlie other in accordance with this settlement; and that one of the parties might enter decrees in its favor establishing the validity of its patent, and granting an injunction against the other, according to the principle of settlement. Held that, as the agreement- was expressly to settle all differences, the court would only allow the entry of this decree on condition that the party asking it would consent to the entry of a like decree against itself in the other suit.</p>

This was a libel by Constantine & Co. against the steamship Burton to recover for wharfage and services in discharging the vessel.

This was a libel in rem by James G-. Tarr against the schooner Lydia A. Harvey. The cause was heard on a question as to the distribution of funds in the registry, resulting from the sale, of the schooner.

This was a libel in rem by the Keliance Marine Insurance Company, insurer of cargo, against the steamer A. J. Wright and the canal boat Spiegel. The steamer New York World and the canal boat Elizabeth Farrell were subsequently brought into the cause by petition.

<p>1. CoumsioN — Tug Moored m Harbor.</p> <p>It is not negligence for a tug to lie at tbe dock near the foot of Commercial street in Buffalo harbor; for, though the place is not a safe one, it is no< more dangerous than other docks in the same harbor.</p> <p>2. Same — Propbm.br Entering Buffalo Harbor — Excessive Speed.</p> <p>It is negligent navigation for a large, grain-laden propeller to enter Buffalo harbor, with ihe assistance of a single tug, at the unusual and dangerous speed of five or six miles an hour, especially when a strong gale is blowing, and a rapid current sotting up the river.</p> <p>3. Same — 1Tog nsr Harbor.</p> <p>A.tug undertaking to assist vessels into a narrow and dangerous harbor, like that at Buffalo, is bound to know the channel, the current, and whether, in the existing state of wind and water, it is safe to attempt to enter without further assistance.</p> <p>4. Same.</p> <p>A tug assisting a steamer into a harbor is in fault for collision of the steamer with a vessel at a dock, where she permits the steamer to run past her, in the course of a sheer, so that the pull on the towline tends to throw her over so as to make it necessary to cast it oft.</p>

This was a libel against the master of the barge Atlas against the steamship Le Lion, and a cross libel hv the master of the latter, to recover damages growing out of a collision.

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

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

<p>Appeal from the Circuit Court of the United Slates for the Northern District of Texas.</p>

This was an action by R. D. Bowen against J. M. Clymer and others to try the title and recover the possession of certain-lands described in the pleading. At the first trial the court instructed the jury to render a verdict for the defendants, but on a writ of error the judgment entered was heretofore reversed by this court (24 O. C. A. 446, 79 Fed. 53), and -the case was remanded, with instructions to grant a new trial.

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

This was a suit in equity by Charles Heap against the Tremont & Suffolk Mills for alleged infringement of letters patent No. 377,151, issued January 31, 1888, to-Henry Nicholas Groselin, Fils, for a machine for napping cloth. The circuit eourt dismissed the bill on the merits (75 Fed. 400), and the complainant appealed. , This court heretofore reversed the decree (82 Fed. 449), but subsequently granted a rehearing on a particular point, as indicated in the opinion below.

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

<p>Patented Design — INFRINGEMENT.</p>

“And now comes the United States, by Boyd B. Jones, United States attorney for the district of Massachusetts, and says: First. 'That this is a writ of error to review a judgment of the circuit court, recovered on the fourteenth day of October, A. D. 1896, for the sum of one thousand and twenty-one and seventy one-hundredths dollars ($1,021.70) damages, and costs of suit, taxed at sixty-nine dollars and twenty-five cents ($09.25), in favor of the United States of America,…

<p>Customs Duties — Appraisement.</p>

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