Volume 85 — Federal Reporter

This? was an application for mandamus, on relation of the city of Muncie, against the Lake Erie & Western Railway Company, begun in the circuit court of Delaware county, Ind.

This was an action commenced by summons in the circuit court for the county of Kent, state of Michigan, by John W. Hayward, a citizen of Michigan, against the Nordberg Manufacturing Company, a corporation of the state of Wisconsin. After the defendant company had, by attorney, entered an appearance, a declaration was filed, and copy served. The ad damnum named in the writ of summons was $5,000. The declaration included three counts.

<p>Í. Removal of Causes — Time of Removal.</p> <p>The provision of section 3 of tbe judiciary act of 1875, as amended (25 Stat. 433), that a petition for removal of a cause may be filed at or before the time required for answering or pleading, is modal and formal, and does not operate to prevent a removal, where the cause does not become a removable one until after that time has expired.</p> <p>2. Same — Federal Question — Receiver of National Bank.</p> <p>The rule that, in order to warrant the removal of a cause to the circuit court on the ground that it arises under the laws of the United States, that fact must be shown in the plaintiff’s pleading, does not operate to prevent a removal, where the original pleading' alleges that defendant is a national banking association, and where a receiver thereof, appointed by the comptroller of the currency, is subsequently made a defendant and petitions for removal.</p> <p>S. Receiver of National Bank — Officer of United States.</p> <p>A receiver of an insolvent national bank is an officer of the United States.</p> <p>4. ' Parties — Receiver of National Bank.</p> <p>In a suit in a state court against an insolvent national bank and others, charging a conspiracy to defraud, and seeking the recovery from the bank of moneys alleged to have been thus obtained, a subsequently appointed receiver of the bank is a proper party defendant.</p> <p>5. Same.</p> <p>It seems that in such a suit, in a state court, the receiver of the national bank is not a necessary party.</p> <p>6. Removal of Causes — Winding up National Bank.</p> <p>Such an action falls within the description of “cases for winding up the .affairs” of a national bank, under section 4 of the judiciary act of 1875, as amended in 1887 and 1888 (25 Stat. 433), which preserves in such cases the jurisdiction of the federal courts, and the receiver of the bank, intervening as such, is entitled to have the cause removed.</p> <p>7. National Banks — Jurisdiction of State Court.</p> <p>It seems that a state court is a “court of competent jurisdiction” to adjudicate upon disputed claims against insolvent national banks.</p> <p>8. Removal of Causes — Action against National Bank — Ground.</p> <p>The rule requiring that, where the ground for removing a cause to the federal court is diverse citizenship, that ground must exist, not only at the time of removal, but also when the suit was commenced, has no application, where a receiver of an insolvent national bank intervenes as such, and seeks the removal of a case which is under the head of “winding up the affairs” of the bank.</p>

<p>1. Telegraph Company — -Scope of Term.</p> <p>The act of July 24, 1806 (Rev. St. §§ 5263, 5268), authorizing telegraph companies to construct, maintain, and operate their lines over and along post roads of the United States, but so as not to interfere with ordinary travel thereon, applies equally to telephone companies. -</p> <p>Brawley, District Judge, not assenting- in full.</p> <p>2. Telephone Company — Federal Statute — Local Ordinance.</p> <p>A telephone company operating its lines in and through several states, and in particular over the streets of a city, under the authority of a city ordinance which, by its terms, was revocable by the city, duly complied with the requirements of Rev. St. §§ 5263, 526,8, and thereby acquired the rights granted thereby. Thereafter the local ordinance was revoked. Held, that; its previous acceptance of the terms of the ordinance did not debar it from claiming the full rights conferred by the act of congress.</p> <p>3. Same — Police Power.</p> <p>The privileges conferred by the act of July 24, 1866 (Eev. St. § 5263), upon telegraph and telephone companies, are to be enjoyed in subordination to the due exercise of the police power of the state where they operate their lines.</p> <p>4. Same — Unreasonable Ordinances.</p> <p>The principle that the legislature may not, under the guise of protecting public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations, a fortiori applies to a municipal corporation, the creature of the legislature.</p> <p>5. Same.</p> <p>Where the conditions, regulations, and restrictions imposed by a city council upon the maintenance and operation within the city of the lines of a telephone company enjoying the privileges conferred by Eev. St. § 5263, are such as to evince a desire to oppress and control, and perhaps defeat, the company’s existence* they cannot be supported as a lawful exercise of the police power.</p>

The appellee, Hugh C. Ward, was the receiver of the property of a partnership appointed by the court below in a suit for its dissolution.

This was a bill by R. Harry Page and others against Isaac Moffett to enjoin the removal of complainants from their positions as deputy collectors of internal revenue.

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

This bill was filed by the Cedar Point Club, an Ohio corporation, to restrain threatened continuous trespasses upon a large body of marshy land lying on the shore of Lake Erie and in Lucas county, Ohio.

This was a suit in equity by the Consolidated Fastener Company against the Columbian Button & Fastener Company for infringement of a patent. The canse was heard on a motion for instructions to the master, to whom it was referred to take and state an account.

This is an appeal from a decree which dismissed a bill to rescind a sale of one-sixth of a mining claim, and to obtain an accounting and. recovery of the proceeds thereof. The appellants exhibited their original hiil in the court below on June 19, 1895. On September 2, 1895, two of the appellees interposed a demurrer to this hill, and on June 30, 1896, the demurrer was sustained. The appellants amended their bill, and the appellees demurred to the amended bill.

This was a suit in equity by Michael Curran, Bridget Curran, Mary Walsh, Sarah Horan, Katie Curran, Margaret Curran, and Bridget Polley against John P. Campion, A. V. Hunter, and the Ibex Mining Company, to cancel a deed to an interest in a mine, and to recover the same and its products. The complainants have appealed from a decree sustaining demurrers to the bill, and dismissing the suit,

This was a bill in equity by James H. Donovan against John F. Campion, A. V. Hunter, and the Ibex Mining Company, to cancel a deed for an interest in a mining claim, and to recover that interest, and for an accounting of the profits of the mine. The complainant appeals from a decree sustaining a demurrer to the bill, and dismissing tbe suit.

<p>Appeal from the Circuit Court of the United States for the, District of Colorado.</p> <p>This was a bill by Wayne MacVeagh against the Denver City Waterworks Company and others. The circuit court overruled a demurrer to the plea, and refused leave to reply. Plaintiff appeals. Among other averments, the plea avers as follows:</p> <p>“Said suit is brought in the name of the said Wayne MacVeagh as a resident of the state of Pennsylvania, collusively, for the purpose of affording to the United States courts jurisdiction over the subject-matter of this controversy; that the shares of stock alleged in the said bill to belong to said MacVeagh are not now, nor have been since the filing of said bill, the property of the said MacVeagh, but belong to and are the property of the United Waterworks Company, Limited, which is a corporation organized and existing under and by virtue of the laws of the state of New York, and is a citizen of the state of New York. And these defendants aver that the said the United Waterworks Company, Limited, could not bring this bill in the United States court for the circuit of Colorado in its own name because it is a citizen of the same state with the defendants the Central Trust Company and the Farmers’ Loan & Trust Company, which are corporations duly organized and existing under and by virtue of the laws of the state of New York, and are citizens of the state of New York, and who are the mortgagees mentioned in the said bill of complaint, and are necessary and indispensable parties defendant in the said suit, and for a proper determination thereof; that the said suit was brought in the name of the said Wayne MacVeagh solely for the purpose of giving jurisdiction to this court, the said MacVeagh being a resident and citizen of a different state from any of the defendants in the said suit.”</p>

This is an appeal from a decree upon an intervening petition in a railroad-foreclosure case, giving a preference to an unsecured debt, out of the proceeds of a mortgage foreclosure sale, to John Hofstetter, a judgment creditor of the Overland Railroad Company.

This was a suit in equity by the Northern Pacific Railway Company against Alton P. Dudley and others. The cause was heard on. motion for an injunction pendente lite to prevent the cutting of timber from the lands in controversy.

This was a bill in equity by ihe Grand Trunk Railway Company against the Central Vermont Kailroad Company. The cause was heard upon a demurrer hied by the American Loan & Trust Company, intervener, to the bill of complaint.

<p>1. Statute of Limitations — Trusts—Fraud of Trustee.</p> <p>M., as attorney in fact for a devisee residing in a distant city, received her share of an estate, remitted a portion, and retained the remainder, which he invested in real estate, took the title in his own name, and afterwards conveyed it to his wife. The devisee permitted him to retain her property at his request, and upon his representations that he could thereby obtain for her a greater profit. He frequently told her that others were fraudulently trying to obtain her money, but warned her not to speak of it, and to seek no advice, and assured her of the security of her funds. In consequence of his warning, and reposing great trust in M., she sought no advice, and, being unable to read or write, made no inquiry concerning her property. Held, that no express trust was created, and an action to recover the trust property, brought against the wife of M. after his death, and 12 years after he received the funds, was barred by Code Civ. Proc. § 343, requiring actions based upon constructive trusts to be brought within 4 years.</p> <p>2. Same — Laches.</p> <p>Held, further, that since the cestui que trust failed to inquire what disposition had been made of her funds when informed by the trustee that efforts were being made to defraud him of them, she did not exercise proper diligence, and could not, therefore, claim exemption fromi the statute of limitation on the ground that the trustee concealed his fraud.</p>

This was a suit in equity by tbe California & Oregon Land Company against Charles E. Worden, an agent of tbe United States, to enjoin him from making allotments in severalty of certain lands to members of an Indian tribe. The cause was heard upon a motion for preliminary injunction.

This was a suit in equity by John Hulitt, as receiver of the First National Bank of Hillsboro, Ohio, against Charles E. Bell and others, to recover an assessment upon the shareholders, under Rev. St. § 5205.

This was a petition by Boyd Ewing, receiver of the East Tennessee Land Company, the East Tennessee Land Company, and the Central .Trust Company of New York for leave to file a hill of review in this court in the case of Leon Jourolmon and others against Ewing, receiver, etc., to review, on the ground of newly-discovered evidence and for errors apparent of record, the decree heretofore rendered. 26 C. C. A, 23, 80 Fed. 604.

This was a petition by the interstate commerce commission for the purpose of enforcing an order made by it forbidding the East Tennessee, Virginia & Georgia, Railway Company and others from charging higher rates from Boston, New York, Philadelphia, and Baltimore to Chattanooga, Tenn., than to Nashville, Tenn., over the same routes.

<p>1/ Bills and Notes — Accommodation Indorsement.</p> <p>The Iowa statute having declared that the blank indorsement of a promissory note by one-not a payee, indorsee, or assignee thereof is a guaranty of payment (McClain’s Code, § 3205), a note bearing such an indorsement is-notice to any one discounting it that the indorser is presumably a mere accommodation indorser, without consideration, and hence a mere guarantor. This presumption, however, may be rebutted by showing that such indorser in fact received a consideration.</p> <p>3. Same — Accommodation Indorsement by Corporation — Ultra Vires.</p> <p>An accommodation indorsement for the sole benefit of another is ultra vires of a commercial corporation. But if the indorsement is shown to be partially for its own benefit, as for the purpose of enabling its creditor to raise money to be partially used in discharging its debt, the corporation will be estopped, after receiving the money, to deny the validity of its contract.</p> <p>3. Same — Transfer without Indorsement — Defenses.</p> <p>A bank discounting a note not indorsed by the payee takes it subject to all defenses, though such indorsement was omitted by mistake, and was supplied after the paper matured. .</p>

About May 10,1893, I)r. S. G. Glover, the plaintiff in error, bought from G. H. Jackson & Oo., of Cairo, ill., a house and lot at Ashland, about 20 miles from Richmond, Va.

<p>1. Contracts — Adoption by Successor.</p> <p>A contract: with a railroad receiver, whereby a coal company was to supply the road wirli coal for one year at a certain price, stipulated that at the ex-pira ! ion of the year it should be renewable at the option of the coal company. Before that time the railroad was sold under a mortgage given prior to the making of the contract. The purchasers were aware of the existence of the contract, of the price stipulated therein to be paid for coal, and of the date of its expiration, birt; did not know of the option clause regarding renewal. Held that by continuing to receive coal under the contract until notified by the coal company that the contract would be renewed at the expiration of the year, the purchasers did not adopt said option clause.</p> <p>2. Trial — Procedure in Federal Courts — Directing Verdict.</p> <p>Rev. St. § 914, providing that the practice in civil causes in circuit and district courts shall conform as near as may be to the practice in like causes in the courts of the state in which the district or circuit courts are held, does not change the rule (hat the court may direct a Verdict for defendant where the evidence is' insufficient to warrant a verdict for plaintiff.</p>

This was an action at law by Horace W. Philbrook against William J. .Newman and others to recover damages for conspiring to have plaintiff disbarred from practicing in the courts of California.

<p>1. Clerks of Courts — Change in Judicial District — Repeal of Statute.</p> <p>Act July 20, 1882, creating out of certain counties a new judicial district, to be known as the “Northern District of Iowa,” and providing that the remaining counties shall constitute the Southern district of Iowa, and that the judge, district attorney, marshal, and clerks of the district of Iowa shall he, respectively, the judge, district attorney, marshal, and clerks of the Southern district of Iowa, does not, by implication, repeal Act June 4, 1880, § 4, which provides “that the clerk of the district court shall he clerk of the circuit court at all the places where the same is held in said district except at Des Moines.”</p> <p>2. Courts — Change of Territorial Jurisdiction — Creation of New Judicial District.</p> <p>Act July 20, 1882, dividing the state of Iowa into two judicial districts, did not abolish the district of Iowa. It simply detached certain counties from the district, and made a new district, to he known as the “Northern District of Iowa.” The organization of the original district was not changed. Its officers were continued in office, charged with the same duties. Its name and territorial jurisdiction alone were affected.</p> <p>3. Officers — Legislative Appointment — Construction of Statute.</p> <p>The provision of Act July 20, 1882, that “the persons now acting as clerks for the district of Iowa, shall be the clerks for the Southern district of Iowa,” does not constitute a legislative appointment of such persons to their respectivo offices, hut simply gives them, under existing laws, the same status in the Southern district that, they had in the original district, without the necessity of further appointment.</p> <p>4. Ex Officio Clerk of Circuit Court by Special Law — Appointment as Clerk of District Court Only.</p> <p>Under Act June 4, 1880, § 4, making the clerk of the district court for the district of Iowa ex officio clerk of the circuit court of such district at all places other than Des Moines, one duly appointed, qualified, and acting as clerk of the district court for the Southern district of Iowa since the creation of the Northern district of Iowa must he regarded as the de facto, if not de jure, clerk of the circuit court for such district at places other than Des Moines, though not. appointed thereto in the maimer provided by the general law (Act Feb. 6, 1889). His right to act as such cannot be collaterally attacked.</p>

District of North Carolina. This was an action on account by Hartog & Fesel against the Charlotte Oil & Fertilizer Company. Defendant filed a counterclaim. Judgment was rendered for plaintiffs, and defendant brings error.

This was a proceeding upon the petition of S. W. Vance asking for a stay of a writ of possession to Edward B. Wesley, and to be made a party defendant to a suit by said Wesley against J. E. Tindal and J. R. Boyles, which had already been decided in the circuit court, affirmed on error to the circuit court of appeals (13 C. C. A. 160, 65 Fed. 731), and again affirmed on a writ of certiorari to the supreme court (17 Sup. Ct. 770, 167 U. S. 204).

. This was an action to recover an agreed compensation under a contract for services rendered as a broker in bringing about a consolidation of two rival street-railway companies.

Action of Ejectment. All of the evidence in this case having been introduced, counsel for the plaintiff and counsel for the defendants moved the court to give certain instructions, respectively, to the jury.

<p>Circuit Court of Appeals — Jurisdiction—Mandamus.</p> <p>Inasmuch as a circuit court of appeals, under Act March 3, 1891, § 12 (.1 Supp. Rev. St. c. 517, p. 905), has no greater power to issue a writ of mandamus than the courts of the United States had under Rev. St. § 716, it follows that it lias no power to issue such a writ in any case which is not pending in its court, and in which it has not already acquired jurisdiction by other appropriate proceedings.</p> <p>Mandamus — Review of Judicial Decision.</p> <p>The writ of mandamus may not be made to perform the office of an appeal, or of a writ of error to review (he action of a court in the lawful exercise of its jurisdiction, nor can it issue to command a court or officer to decide a judicial question in a particular way; much less may it be invoked to direct such a court or officer to reverse a decision of a judicial question which has already been rendered.</p> <p>Mandamus — Bail—Circuit Court of Appeals — Territorial Court of Appeals.</p> <p>An alternative writ of mandamus was issued by the circuit court of appeals of the Eighth circuit to the judges composing the court of appeals in the ■Indian Territory, commanding them to admit the relator to bail pending his appeal to the latter court from a judgment of conviction render, him by the United States court in that territory, or to show cause t refused. From the writ and return, it appeared that from the „ augment of conviction for the crime of larceny the relator appealed, and, upon denial of his application, to the judge before whom he had been tried, to be admitted to bail, he filed a petition for the same relief in the court of appeals in the territory, and that, after hearing, argument, and consideration in that court of the same questions, subsequently presented upon the return of the writ of mandamus, the prayer of the petition was denied, and the petition dismissed. Held, that the relator’s motion in the circuit court of appeals for a peremptory writ of mandamus must be denied.</p>

<p>1. Death by Wrongful Act — Instantaneous Death.</p> <p>The right of action under section 2 of the Missouri Damage Act (Rev. St. Mo. § 4425) to recover for death by wrongful act is an original, and not a transmitted, right, and exists even where the death was instantaneous.</p> <p>2. Federal Courts — Dicta of State Court.</p> <p>Mere dicta of a state court concerning the construction of a statute of the state, are not binding upon the federal courts.</p> <p>8. Same — Construction of Statute — Understanding of Bench ¿nd Bar.</p> <p>Uniform and contemporaneous action and opinion of the bench and bar of a state should have weight with the federal courts in construing a statute of the state.</p> <p>4. Pleading — General Demurrer.</p> <p>The objection to an allegation of a complaint, in an action to recover damages for death by wrongful act, to the effect that defendant “knew, or by the exercise of ordinary care might have known,” of the danger, on the ground that it does not comply with section 2071, Rev. St. Mo., relating to alternative allegations, cannot be raised by a general demurrer.</p>

<p>1. Mandamus — Levy of Tax to Pay Judgment.</p> <p>On an application for mandamus to compel the levy of a tax to pay a judgment, no questions affecting- the validity of the bonds on which the judgment is founded, or the validity or correctness of the judgment itself, are open to consideration.</p> <p>2, County Bonds — Demand fob Levy of Tax.</p> <p>Under the Kentucky county funding act of March 18, 1878, a derpand made by a bondholder pursuant to section 20 for the levy of a tax to pay his claim is not insufficient merely because made at the same time, and by the same instrument, both upon the county judge when presiding alone and on the court when composed of the county judge and the justices.</p> <p>8. Constitutional Law — Judicial Functions.</p> <p>Section 20 of the Kentucky county funding act of 1878, which requires the circuit court, on the demand of bondholders, to levy a tax for the payment of their claims, is void, because it imposes on a judicial tribunal a legislative function.</p>

This is an action in assumpsit to recover a balance due on the purchase price of a quantity of plate glass sold and delivered by defendant in error to plaintiff in error. The contract of sale was in writing, duly executed April 19, 1&94, and was for 50,000 feet of plate glass, subsequently increased by-written contract to GO,000 feet. The actual quantity delivered appears to have been 57,000 feet.

Plaintiff in error was indicted under section 3893, Kev. St., as amended by Act Sept. 26, 1888 (1 Supp. p. 621; 25 Stat. 496), providing: “Every obscene, lewd or lascivious book or pamphlet, -picture, paper, letter, writing, print, or other publication of an indecent character * * * whether sealed as first-class matter or not, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter-carrier;…

Indictment for violating section 5209 of the Revised Statutes of the United States. On demurrer to the indictment and each count thereof.

<p>This was an appeal from a decision of the board of general appraisers reversing the action of the collector of the port of Richmond in respect to the amount of duty assessed upon certain oats imported in bags.</p>

<p>This was a bill in equity by Charles I. Earll against the Metropolitan Street-Railway Company for alleged infringement of a patent for a grip mechanism for cable railways.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>John B. Russell filed his bill in equity In the circuit court against Frederick R. Stearns & Co., a corporation, seeking to restrain the defendants from further infringement of United States letters patent No. 389,485, issued on September 11, 1888, to the complainant, for a “device for holding and dipping pills,” etc. The bill described the device by the following averment: “That your orator’s patented device consists of a bar having a number of hollow seats for the reception of pills, which bar is adapted to be connected with an exhaust or sucking apparatus, so that the pills to be dipped are held to their seats by atmospheric pressure while being dipped.” The answer set up the usual defenses of non-infringement, want of novelty, noniuvention, anil anticipation. The specification of Russell's patent contained the following: “Pills are now dipped in gelatine by the use of what is known as a ‘needle bar,’ viz. a bar in wliicb are set a number of needles. The pills are impaled on these needles, partially dipped, are allowed to dry, and then removed from the, needles usually by spring fingers, and the uncoated portion dipped. This, of course, makes a hole in each pill, and requires considerable manipulation. My invention consists in bolding the pills on the dipping mechanism by atmospheric pressure, and 1 do this by maintaining a partial vacuum behind the pills when in position.”</p> <p>The drawings of the patent are below:</p> <p> </p> <p>The specifications continué: “The drawings represent mechanism adapted to practice my process, in which B represents a bar having therein a cavity, If, and an orifice through one end of the bar, preferably somewhat tapering, the other end of the bar being closed. 0 represents a number of tubes set tightly in the top of the bar, B, and communicating with the interior cavity, If. In the modifications shown in Figure .°>, the tubes, G, are omitted, and lióles, IT, are drilled through the bar into the cavity, E, terminating at their outer end in concavities, O’. The end of each tube, C, also has a slight concavity, formed therein as indicated in dotted lines in Figure 5, to partially fit the pills or other objects to be held thereby. F represents a hollow tube adapted' to fit the orifice, A, and preferably tapered to fit said orifice. G represents a flexible tube, one-end of which is connected with the tube, F, and the other end with any suitable-suction apparatus, such as an exhaust fan, ejector, or pump. B’ represents a portion of a board perforated with holes, O, slightly larger than the pills to be coated, bored so as to register with the tubes, 0, or concavities O’.” The operation of my invention is as follows: “The bar, B, is laid down with the tubes or concavities upward, and the board, B’, is placed in a frame, so that the holes, O, register with the tubes, O. A number of uneoated pills are thrown upon the-board, B’, and some of them pass down through the holes, O, until they rest upon the end of tubes, G, when the surplus pills are brushed off, and the board removed, leaving a pill on the end of each tube or in each concavity, O’. The-tube, F, is now pressed into the orifice, A; and, being connected with the suction apparatus, the air is exhausted from the cavity, F, and the pills are pressed firmly [against the ends of the tubes or concavities. The bar, B, is now lifted up, and turned over, and, in doing this, the tube, F, may be turned in the orifice, A], to avoid twisting tube, G; and the pills are then dipped in a gelatine bath as deeply as possible, without permitting the gelatine to come in contact with the tube, or to be sucked up through the tube or holes, H, by the vacuum. The pills are removed from the gelatine, the bar is given a slight rotary motion to-distribute the gelatine evenly, and laid down with the tubes upward, in which position the tube, F, may be withdrawn; and the bar and pills are left to dry. When the coating has become dry, the bar is again connected with the suction apparatus. A similar bar is laid down with the holes or tubes up and with a perforated board, B’, placed over it, as before described. The bar containing the partially coated pills is now raised, turned over, and the pills presented to-the perforated holes in the board, and the suction apparatus is disconnected from the bar, when the partially coated pills fall on the ends of the tubes, and are held thereby. The suction apparatus is now connected to the second bar, the perforated board removed, and the uncoated portion of the pills dipped and dried, as before. It is evident that the gist of my invention consists in supporting the articles to be dipped by atmospheric pressure, instead of by mechanical means, and that the form and mechanical construction details of the specified apparatus shown can be considerably modified. What I claim as my invention and desire to secure by letters patent is: (1) In mechanism for dippifig pills, a chambered dipping bar, having seats for pills which have atmospheric connection with an exhaust chamber in said bar, substantially as described. (2) In a mechanism for dipping pills, a dipping bar having seats for pills, and provided with passages forming' atmospheric connection between said seats, and an interior exhaust chamber formed in said bar, and a tubular connection of flexible tube or section to permit the movement of said bar yhen the chamber is exhausted, substantially as described. (8) In combination with bar, B, and tubes, 0, the tapering tube, F, and the flexible tube, G, connected a suction apparatus substantially as and for the purposes set forth.” The words in brackets are not in the specifications, but they are, as counsel have suggested, needed to make the sense clear.</p> <p>The first issue was as to the construction of the specifications and claims. The plaintiff’s counsel contended that the invention was only a part of the mechanism' used in coating pills of which the gelatine hnd its receptacle and the pills themselves were all elements, and that its novelty was to be determined in its relation to these other elements of the same so-called “mechanism.” The contention for the defendant was that the patent was for a mere mechanical device to hold pills during the process of pill-dipping, and that it did not cover a combination with other appliances used in pill-dipping; that the patent was not for a process, but for a tool. To sustain this view, defendant introduced the file wrapper and contents of the patent in suit, and also of an application filed by the complainant, “for a new and useful improvement in the process for dipping pills.” In the latter application he described the method of dipping the pills very much as it is set forth in the specifications quoted above, and framed his claim as follows: “(1) The process of coating pills and other small objects, consisting in supporting them upon a dipping bar by atmospheric pressure while in the act of dipping, substantially as herein described.” The application was rejected by the examiner in these words: “It being common to sustain pills for the purpose of dipping them by impaling the same upon pins attached to a bar, as is shown, for instance, by the patent of A. F. W. & F. A. Neyinaber, No. 170, 185, November 23, 1875 (sugar and salt., confectionery pill machines), and the use of a vacuum for sustaining articles in a similar manner to that shown in the present application being shown in the patents to D. H. Campbell, Nos. 297, 495 and 297, 49(1, April 22, 1884 (metal working buttons and clasps), the process claimed is regarded as lacking in patentability.” Russell then amended his claim to read as follows: “The process herein described of coating pills and other small articles, which consists In holding them upon a dipping bar by atmospheric pressure, and, while so held, dipping the pills in a coating composition substantially as set; forth,” — and pointed out the improvement in this process over the pill-impaling method, theretofore in use, by which a hole was made iu each pill, and required considerable additional manipulation. The appellant further called attention to the fact that the Campbell patent related to a different art from that of coating pills with gelatine, being a machine for making buttons. The amended application was again rejected, with the statement that “the process claimed aside from the more function of the apparatus is devoid of patentable novelty, in view of the patents, and for the reasons cited in the former office letter.” The application was again amended, by inserting the following disclaimer: “I am aware that suction cups hove been used in the manufacture of buttons and other like articles for the purpose of assembling the parts that go to make up such articles. Such, therefore, I do not broadly claim,” — and by striking out of the claim the words “other small articles.” To this the office answered: “The process of dipping pills, regardless of the apparatus used, is shown by numerous patents, and acknowledged by the applicant to be old. The me!hod of sustaining articles by means of atmospheric pressure the applicant concedes also to be old and well known, such having been shown in the patent previously cited. Tn view of the above-mentioned facts, it is believed, as stated in the last office letter, that the application presents no patentable process, and hence it must be for a second time, and finally, rejected.”</p> <p>At the same time that the application for the process patent was under consideration, Russell was pressing his application for the patent in suit. lie called it an “improvement in mechanism for dipping pills.” He was required to substitute for the word “mechanism” the word “device,” and to add the word “holding,” so as to make his claim of invention one for a device for holding and dipping pills. As a condition of obtaining the patent in suit, Russell was required to abandon Ms process application, which he did in the following letter, tiled wiih the commissioner of patents:</p> <p>“In compliance with the directions of the office, and for the purpose of having my application for mechanism for dipping pills serial No. 255,324 considered. 1 herewith withdraw my application for patent for process of dipping pills, filed November 16. 1887, serial No. 255,324.</p> <p>“Votes, respectfully, John B. Russell.”</p> <p>Upon the issues of novelty and anticipation the complainant relied on the admitted facts that never before the use of the device in suit had its pneumatic principle been utilized In the pill-dipping art; that pill-dipping began in 1849; and that since that date some seven or eight patents for holding and dipping the pills had been taken out, in all of which -were serious defects, which Ms device obviated. Of these prior devices, those in most general use were bars with rows of pins or points, upon eacli of which a pill was impaled and held for dipping. Those devices always left holes in the gelatine pill, which had to be filled in some other way, or else left the pill covering defective. The complainant, further, to show both novelty and utility, relied on evidence, not contradicted, that since his device has been used by Parke, Davis & Co., large manufacturers of pills in Detroit, for pill-dipping, they have used it in making 129,000.000 pills a year, and have increased their manufacture and sales of pills very largely, as compared with the manufacture and sale of pills by their competitors who use the old devices.</p> <p>Upon these issues, the defendants introduced witnesses to prove the common use of air exhaustion to maintain balls in ball valves against the month of an exhaust chamber, and they also introduced American and English patents to show a frequent utilization of the same principle.</p> <p>The Campbell patent, of 1884, which, it will be remembered, was referred to by the patent-office examiner to show the want of novelty of the process applied for by complainant, was an improvement in button-making machines, in which co-operative dies were employed for uniting as many as five different parts to form a button, the improvement consisting in devices for feeding the several parts automatically into the dies successively, and in the proper order. The dies were in a circle inside the periphery of a revolving table, while the parts to be fed were in magazines outside the periphery of the table. The parts were transferred one at a time from their respective magazines to the dies by means of cupules or suckers, which were ifipes suspended above the table, and communicating with a common exhaust chamber, and having such a swivel joint connection with the chamber as to permit their lower ends to swing from their respective magazines to the circle of the revolving dies. The construction of the machine was quite complicated in order to effect the necessary automatic cooperation of the parts; but the simple office of each cupule or sucker was to attach to its lower end a particular part of the button to be made, and to lift it from its magazine, and carry it around to a point where it could drop it into one of the revolving dies with which it would register. The lifting and holding of the part thus carried to the end of the sucker or cupule was effected by exhausting the air in the exhaust chamber connected by a flexible i>ipe with suction apparatus, and the dropping was accomplished by breaking the atmospheric connection between the vacuum chamber and the pipes of the cupules or suckers by means of automatically operated valves. Another cupule was used to lift the finished button from the die, and deliver it from the machine. The patentee said in his specifications: “Instead of relying upon mechanically organized grasping and delivering devices, operating after the manner of nippers, and in some cases after the manner of puncturing forks for feeding or delivering the parts to and removing the finished buttons from the dies, I employ cupules or ‘sucking cups’ with atmospheric pressure, made available at suitable proper intervals by a continuous partial vacuum mechanically induced, and an automatic control of said pressure adjacent to and affecting said cupules in their operation. So far as my knowledge extends, this pneumatic principle has never before been applied to button-making machinery, although I am aware that it has been employed in machines for making trunk nails having brass filled heads; but in said machines, instead of effecting the release of a ‘filling’ from a lifter by modifying the atmospheric pressure as in my machine, said release was effected by mechanically operated plungers; and instead of employing a continuous partial vacuum, as in my machine, the partial vacuum in said prior machine was intermittingly induced by a pump which was worked for each operator of the lifter. I am also aware that the pneumatic principle has heretofore been employed in twine balling machines for conveying tickets from receptacles to hollow sinking balling spindles by means of cupules or suckers; and I am still further aware that there have been employed in other connections suckers which embodied means within themselves for inducing a partial vacuum at each movement towards or upon the object to be lifted.” The articles lifted in the Campbell machine were metal shells, metal collets, cloth covers, paper fillings and tufts, as well as the whole buttons. The machine for making trunk nails referred to by Campbell was covered by a patent to Zachariah Walsh, issued in 1805. The machine is a very complicated one. The things lifted by suckers or cupules were small circular tin ox metal plates, and circular pieces of pasteboard of the same size.</p> <p>In 1851, one Frearson had taken out an English patent for lifting by pneumatic suckers small pieces of metal, and delivering them into cutting, shaping, and pressing machinery. The same pneumatic principle was used in printing presses to lift sheets of paper, and convey them from one part of the machine to another. There were quite a number of devices of this kind. The one most important in this case was a patent for a feeding attachment for cylinder printing presses, issued to Sanford C. Cox, May 12, 1885. In this the paper was delivered into the press by a tubular carrier, Q, which itself was carried from the place of reception to the place of delivery, suspended in triangular slots of carrying levers, and moving over segmental tracks. The carrier was described as follows: “The underside of the carrier, Q, is provided with suction cups, S, which communicate with its hollow interior, and have secured around their edges the rubber rings, s, to cause them to adhere to the paper when the air is exhausted from the carrier and cups. One end of the tubular carrier is closed, and the other end Is connected by a flexible tube, T, with an air pump, which is not shown in the drawings, but which is operated from the cylinder or operating shaft of the press, and which is so constructed and arranged that it shall exhaust the air from the carrier when the latter reaches the paper table, and cease operation and permit air to enter the carrier wlxen the latter readies the end of its stroke. The ends of the segmental tracks, D, are vertical or abrupt, and the triangular slots, 0, in the carrying levers, will permit the carrier to descend the required distance at either end, and will again raise or lift it at ths beginning of the movement in the opposite direction. By this construction the suction cups will always descend squarely upon the paper, and will never fail to deliver it evenly and smoothly.”</p> <p>Fig. 3 of the drawings shows this tubular carrier:</p> <p>p</p> <p>A very similar device was shown in a. paper -separator, patented to Comly in 1853. “His invention,” he said, “consisted in a method of feeding or supplying paper, sheet by sheet, from a heap through the agency of atmospheric pressure.” His machine consisted of (1) an elevating- table; (2) a. roller; (3) an air pump or exhanster attached by a flexible tube or bracket to a horizontal tube pierced on the underside with any required number of small holes, in which lie inserted small tubes of, say, one inch in length and caliber in proportion.to the size of the horizontal tube and the power of the exhauster; (4) a supporting liar. The •air was exhausted from the tube, G, at the moment when the tubes, /, Z, Z, were nearest to the top sheet of paper, at which time the revolution of cam wheels raised the tube, 0, with the sheet, and it was carried from the heap to any required point. Fig. 2 of the drawings, reproduced below, shows this tabular carrier:</p> <p> </p>

The Royal Baking-Powder Company, the appellee, filed Its bill of complaint in the court below to restrain the use by George E. Raymond, the appellant, of the word “Royal” as the name or designation of a baking powder not manufactured by that company, and from the use of labels, circulars, and stamps which induce the belief that the baking powder sold by him was that manufactured by the Royal Baking-Powder Company.

<p>Collision — Steamer with Tow.</p> <p>A steamer ascending the .eastern channel of the Delaware river below Greenwich Coal Piers, and meeting a tug with a schooner in tow coming •down the eastern side of the channel, held solely In fault for a collision with the tow, where the’tug signaled that it would keep to the eastern side of the channel, to which the steamer first assented, but afterwards attempted to pass to the eastward, when it was too late for the tug and tow to go to the west, and persisted therein in spite of the repeated signals of the tug that she would keep to the eastern side.</p>

This was a libel in rem by Emmett M. Mannie and others against the steamboat H. C. Grady to enforce an alleged lien for wages.

<p>Assignment eou Creditors — Description op Property.</p> <p>An insolvent debtor executed a trust deed for the benefit of creditors, conveying his entire stock of goods, wares, merchandise, vehicles, and personal property described, including all “lying, situate, and being” in the back yard of a certain store. He afterwards executed a chattel mortgage on live Eclipse hay presses, situated on a vacant, lot about 50 l'eet in the rear of the back yard” of said store. There was no property whatever in such back yard.' Held, that the five presses were conveyed by the trust deed.</p>

This was a bill in equity by John Shea and Daniel Shea against Dina Leisy to enjoin the prosecution of a scire facias upon a mortgage, and to reform the mortgage and bond in accordance with an alleged parol agreement.

<p>1. Equity Jurisdiction — Setting Aside Fraudulent Decree — Removing Cloud from Title.</p> <p>Where the purpose of a bill is to set aside as fraudulent judicial proceedings, to declare deeds made in pursuance thereof null and void, and to free complainants’ lands from the lien of certain taxes, and of the claim of forfeiture declared in such proceedings, it is not necessary to allege that complainants were in possession of the lands at the time of instituting the suit, to give a court of equity jurisdiction.</p> <p>2. Entry of Lands for Taxation — Forfeiture of Lands Sold for Taxes.</p> <p>Where lands have been purchased by the state at 'tax sale, they cannot be forfeited for nonentry on the land books for taxation, under the statute of West Virginia, which provides that lands so sold shall not thereafter be entered for taxation unless redeemed.</p> <p>3. Suit to Set Aside Decree Obtained by Fraud — Jurisdiction.</p> <p>A suit to set aside a decree because of conspiracy and fraud in procuring it need not be brought in the court which rendered the decree, but may be instituted in any court having jurisdiction of the subject-matter and the parties.</p> <p>i. Suit to Set Aside Judicial Sale — Lands Forfeited — Laches.</p> <p>Complainants’ lands were sold as forfeited for nonentry for taxation in October, 1885, and bill to set aside the proceedings as fraudulent was filed in December, 1889. They had never abandoned their claim to the land, but continued to assert it. It was not shown that defendants had taken possession of, or exercised acts of ownership over, any part of the land. Held, that there was no laches.</p>

<p>1. Trusts — Money Wrongfully Patd Out — Recovery by Free Owner.</p> <p>Money intrusted to another, and by him wrongfully paid out, may lie recovered by the true owner, so long as it Is traceable, if its possession, with liability of its recovery, lias wrought no disadvantage to those to whom it has been paid.</p> <p>3. Tracinu Money in Hands op Innocent Holder — Burden op Proof.</p> <p>Plaintiff intrusted money to another, who deposited it in bank in his own name, with funds of his own, and afterwards paid a legacy to defendant by check on said bank) after the payment of which a considerable balance still remained to his credit. Held that, in the absence of proof to the contrary, such, balance would be treated as a part; of plaintiff’s money, and ho could only recover the residue.</p> <p>8. Election op Remedies — Money Wrongfully Paid Out — Attempt to Recover prom Wrongdoer.</p> <p>An unsuccessful attempt to recover from the wrongdoer money paid out in breach of a mist is not such an election of remedies as will bar a recovery against one to whom it has been paid, in the absence of circumstances creating an estoppel.</p>

<p>Appeal — Modification of Decree after Term.</p> <p>' An appellate court has no power, after the end of the term at which its decree is rendered, to modify the same on motion, in respect to the costs.</p>

<p>In Equity.</p> <p>Bill by the United States against the Coal Dealers’ Association of California and the members of the association, and against Charles R. Allen, Central Coal Company, R. D. Chandler, George Friteh, J. C. Wilson & Co.. Oregon Improvement Company, Oregon Coal & Navigation Company, W. G. Stafford, trading as W. G. Stafford & Co., R. Dunsmuir’s Sons, John Rosenfeld, Louis Rosenfeld, and I-Ienry Rosenfeld, partners, trading as John Rosenfeld Sons. The bill is brought to secure the dissolution of the'Coal Dealers’ Association of California, and to set aside an agreement between the said association and the other defendants, relating to the sale of coal in the city and county of San Francisco, alleged to be in restraint of trade and commerce, in violation of the act of July 2, 1890, and for an injunction restraining the defendants from further agreeing, combining, conspiring, and acting together in maintaining rules and regulations and rates and prices for coal brought from British Columbia, Washington, and Oregon to San Francisco, for domestic purposes as fuel.</p>

<p>1. Mortgage Executed on Sunday — Arkansas Statute.</p> <p>Under tbe Arkansas statute making it a misdemeanor to labor, or to compel an apprentice or servant to do any labor, on Sunday, other than customary household duties of daily necessity, comfort, or charity, a mortgage and notes executed on Sunday are void. 79 Fed! 826, affirmed.</p> <p>2. Federal Courts — Following State Decisions.</p> <p>The decisions of the highest court of a state as to the effect of its Sunday laws upon contracts made and to be performed in the staté will be followed by the federal courts. 79 Fed. 826, affirmed.</p> <p>8. Mortgage Executed on Sunday — Acknowledgment Dated Another Day.</p> <p>Where a mortgage was actually executed on Sunday, it is not validated by. the fact that the certificate of acknowledgment bears date of a day prior or subsequent thereto.</p> <p>4. Invalid Renewal of Mortgage — Right to Enforce Original Mortgage.</p> <p>Where, by reason of the invalidity of a renewal mortgage, tbe mortgagee has the right to enforce the antecedent mortgage, he cannot do so in a suit to foreclose the renewal mortgage.</p> <p>5. Foreclosure of Mortgage — Ratification of Mortgage Executed on Sunday — Pleading.</p> <p>Where, to a mortgage sued on, the defense >s set up that it was executed on Sunday, complainant cannot make a subsequent ratification available under the general replication, but must plead it by way of amendment in a supplemental bill.</p>

. Appeal from the Circuit Court of the United States for the Eastern District of Tennessee. This was a proceeding in equity, begun by petition filed by the attorney general, on behalf of the -United States, against six corporations engaged in the manufacture of east-iron pipe, charging them with a combination and conspiracy in unlawful restraint of interstate commerce in such pipe, in violation of the so-called “Anti-Trust Law,” passed by congress July 2, 1890.

These are bills filed by various railroad and telephone companies against the board of equalizers of Tennessee, to restrain said board from certifying the assessed valuation of their properties for taxation for the biennial period including the years 1897 and 1898, alleging that said assessments are invalid for various reasons specifically mentioned.

<p>This was a suit in equity by Melvil Dewey against Maria Whitney and Elizabeth W. Whitney to compel conveyance of title to certain parcels of land.</p>

This suit was brought by the Connecticut Mutual Life Insurance Company, the appellee, against John IT.

By consent of the parties the above cases were consolidated for trial, and the depositions taken therein, so far as applicable, were used in both eases. The suits are brought to vacate patents obtained by Emma F. Mackintosh and Eudora T. Chambers, each to 640 acres of land in Sevier county, Utah, entered under what is known as the "Desert Land Act,” approved March 3, 1877 (19 Slat. p. 377). Sections 1 and 2 of this act are as follows: “Section 1.

<p>1. Public Lands — Desert Land Act — Corporations.</p> <p>The desert land ad of March 3, 1877, which authorizes “any citizen of the United States, or any person of requisite age,” etc., to make an entry of desert lands, does not include corporations.</p> <p>2. ' Same — Acquisition kob Corporation.</p> <p>An entry of desert land under the act of March 3, 1877, was made at the expense of an association (subsequently incorporated), in the name of persons living at a great distance from it, who paid none of the purchase money. After the ditches were dug these persons were taken, solely at the corporation’s expense, to view the land, for the purpose of enabling them to make iinal proofs. After the title was perfected, they conveyed it to the corporation. Ueld, that the entry was fraudulent, and Ihe patent should be canceled.</p>

<p>On motion to dismiss amended and supplemental bill.</p>

<p>1 Corporations — Fictitious Capitalization — Constitutional Restrictions.</p> <p>Under the Kentucky constitution, declaring fictitious increase of stock or Indebtedness void, and forbidding the acceptance of labor or property in payment of stock or bonds “at a greater value than the market price at the time the said labor was done or property delivered,” stock and bonds can only be Issued in exchange for work or property when the market price thereof is equal to the par value of the bonds or stock so exchanged. Railroad Co. v. Dow, 7 Sup. Ct. 482, 120 U. S. 287, distinguished.</p> <p>9, Same — I’iiesumptions.</p> <p>A concract between the majority stockholders of a Kentucky corporation and certain brokers, for the reorganization of the corporation on a plan which would render it illegal under the Kentucky law, as creating a fictitious increase of stock, cannot be presumed to contemplate a reorganization under the laws of some other state, wherein such a reorganization might be valid, when it appears that the owners of the majority of stock in the old corporation were residents of Kentucky, that the business of the new corporation was to be carried on in Kentucky and was to be of a quasi public character, and that the contract was made and signed in Kentucky.</p>

This is a suit by the Metropolitan Rubber Company, the plaintiff in error, hereafter termed the “Rubber Company,” against Charles W. Ohrndorf and James Ruane, the defendants in error, on the following written guaranty: “We, the undersigned, O. O. Peters, Charles W. Ohrndorf, and James Ruant, of St. Louis, Missouri, in consideration of the granting of credit by the Metropolitan Rubber Company * * * to Peters Rubber & Supply Company, a corporation duly organized under the laws…

<p>1. Action for Negligence of Servant — Evidence of Reputation and General Conduct.</p> <p>In aa action for injury caused, by the careless act of a servant, where incompetence is not charged, evidence that the servant is a person of good repute, or that he had always theretofore displayed the requisite skill and care, is not competent.</p> <p>2. General Conduct of Servant — Challenge by Plaintiff.</p> <p>Testimony of a single witness for plaintiff that, shortly before the accident, she had noticed the servant doiDg his work, and that he did not seem to be In a pleasant state of mind, but worked quick, and “jerked himself about like a boy who did not like to do his chores,” does not justify the introduction of evidence of the general conduct of such servant.</p>

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

This action was instituted to recover from the city of Austin the sum of |10,900.83 for water supplied and rental of hydrants on a contract entered into between the City Water Company and (lie city of Austin on the 13th day of April, 3882, which contract was attached to and made a part of the petition, and of which the following is a copy: “City Water Company Contract with the City of Austin. “An Ordinance. “Contract between the City Whiter Company and the City of Austin.…

<p>Cahktfjrs — Dhfuctivh Platform — Ooxtkiisctouy Nkoliguxct?.</p> <p>At an unimportant way station, where defendant had no depot, and sold no tickets, it maintained a platform for the solo purpose of ingress and egress to and from the cars. It was about 8 feet wide and 80 yards in length. The track was on the east side, where the platform was about 4 feet high, and not protected by railing', and no lights were maintained. Plaintiff. a stranger in the neighborhood, ami unfamiliar with the platform, came to the station on a dark night, to take passage on a train. She went upon the platform from the west side, and, supposing it was the same height on the east side, and intending to sit down upon the edge of it, she stepped off in the darkness, and was injured. Held, that she was guilty of contributory negligence.</p>

This was an action by the United States against August Jaedicke and others, sureties on his official bond as a postmaster, to recover money alleged to be due. There was a verdict and judgment for the plaintiff, and the defendants brought error.

The plaintiff in error, a citizen of the state of Texas, brought an action against the American National Bank of Arkansas City, Kan., and the receiver thereof, to recover the sum of $28,250, alleged to be owing to her by said bank on contract.

<p>1. Master and Servant — Fellow Servant of Ratlroad Employe.</p> <p>A carpenter was engaged with common laborers In setting post.s along a railroad, bis part of the work being to make measurements in order to ascertain where holes were to be dug, direct the setting- of the posts, and see that they were set plumb, at a certain height, and a certain distance from the track. Ho was under the direction of a foreman in charge of the work. Sold, that such carpenter and laborers were fellow servants, under the Arkansas statute defining railroad fellow servants as “persons engaged in the common service of such railroad corporation, * * * working together to a common purpose, * • * neither being intrusted by such corporation with any superintendence or control over their fellow employes.”</p> <p>2. Same — Action for Personal Injuries — Negligence of Employe.</p> <p>Where the cause of action is based on the declaration that a fellow employs negligently, carelessly, and wantonly released his hold upon a post he was lowering into a hole, thus causing plaintiff’s injury, and the proof shows that he slipped and lost his hold on the post, because of the slippery character of the ground, and no other negligence is shown, there can be no recovery.</p>

This action is based on the coupons of certain negotiable bonds, which were executed on January 1, 1889, by the city of Attica, a city of the third class, situated in Harper county, Kan.

<p>In Error to the Circuit Court of the United States for the District of Utah.</p> <p>This is an action for personal injuries, and arises out of the following state of facts: In August, 1893, the plaintiff was a brakeman on one of defendant’s freight trains running between Carlin, in the state of Nevada, and Terrace, in the state of Utah. The train was going east. At the station known as Moline there was a side track, with switcnes at the west and east ends. The rules of the company, which were printed, and with which the plaintiff was familiar, required that, in approaching such switch from the' west, this freight train should pass onto the side track through the west switch, so as to give the right of way to a west-bound passenger train due at Mo-line within a few minutes after the arrival of the freight train. • This requirement was essential to prevent a collision in the event of ’the freight, train undertaking to accomplish the side-tracking by first passing through the eastern switch, and then backing onto the side track. The plaintiff’s testimony showed that, while he was aware of this rule, the trainmen had for some time been in the habit of effecting the entry by passing through the eastern switch, and then backing onto the side track. On the occasion in question it reached the side track in the manner just stated. The plaintiff, as the rear switchman, was in the habit of passing from the rear step of the caboose, after the train cleared this switch, in order to throw the switch for the train to back in onto the side track. On this occasion he did not leave the step of the caboose just as the train passed the switch, but, as the train ran unusually far beyond the switch, he did not step oft until he reached a point 281 feet east of the switch. It was then about 11 o’clock p. m., and the niglit was somewhat dark. He had his signal lantern in his hand, which, in descending from the car, would cast its light ob the ground, although the plaintiff claims that he exercised circumspection before stepping off. At this point there was a culvert, about four feet deep and about the same width, with lateral wails of stone, placed there by the company to carry off the water which might accumulate against the embankment constructed at this point. This culvert was uncovered, and in alighting from the caboose the plaintiff stepped into the culvert, and received an injury to his kneecap and further bruises.</p> <p>The negligence imputed to the railroad company, as the basis of recovery, is charged in the petition as follows: “That it was the duty of defendant to provide and maintain suitable covers or guards for all of its culverts under its roadbed which might be in the vicinity of any side track or switch on its road: but that, in violation of its said duty, the defendant constructed and maintained an open or uncovered culvert near the end of the side track at Moline, at a point where it became necessary for the plaintiff to step off from the said freight train in order to turn the switch and permit the freight train to go upon the said side track, as so ordered by the defendant; and in so doing, and in ordering the plaintiff to perform such duty where such uncovered culvert was situated, the defendant conducted itself carelessly, negligently, and unskillfully, whereby,” etc.</p> <p>The evidence showed, without contradiction, that on this road, between the points over which the plaintiff ran as brakeman, and over which he made trips every two or three days for three years past, there were 292 culverts, none of which was covered. It is true the plaintiff testified that he had seen one covered culvert, but when and where he could not state. It was the custom of the company to so construct its culverts, and such method was deemed by its engineers and track builders to be proper and safe. At the time of this injury the plaintiff had been in the employ of the defendant as brakeman on this line of road for three years. He knew the culverts were uncovered, although the evidence does not show that, prior to this accident, he knew of the exact locality of this particular culvert. On this evidence the court directed a verdict for the defendant. To reverse this judgment the plaintiff prosecutes a writ of error.</p>

<p>1. Counties — Constitution—Contracts in Excess of Income — Bridges.</p> <p>Under Const. Idaho, art. 8, § 3, providing that no subdivision of the state shall incur any indebtedness exceeding in that year the revenue provided for it for such year without the assent of the voters at an election for that purpose, a contract, made by county commissioners without obtaining the consent of the people at an election, for the erection of a bridge at a cost of $14,000, where the excess of the revenue over the other expenditures for that year cannot possibly be more .than $4,525, is void in toto.</p> <p>.2. Void Contract — Ultra Vires — -Implied Promise to Pat.</p> <p>Where a bridge has been constructed under a contract with county commissioners which is void because the surplus revenue for that year is' insufficient to pay therefor, although it was constructed in good faith, and has been accepted by the county; which has had the benefit thereof, no implied promise to pay the value thereof can be Inferred.</p> <p>3. Property in Construction Erected under a Void Contract.</p> <p>A bridge constructed under a void contract with county commissioners, although accepted and used by the county, remains the property of the builders, when the county refuses to pay therefor.</p>

<p>1. Limitation of Actions — Remedy and Cause of Action — Liability of Heir for Ancestor’s Debt.</p> <p>The statute of New York, providing that land of heirs and devisees may be taken in payment of debts of the ancestor or testator, gives a remedy only; the canse of action is founded on the obligation of the ancestor or testator to pay the debt; and the statute of limitations is available to the heir only as it would have been to the ancestor.</p> <p>2. Subjecting Heir’s Real Estate to Payment of Ancestor’s Debt — Proof of Insufficient Personalty.</p> <p>Where the evidence is such as to leave no reasonable doubt that there were no personal assets of the ancestor for the payment of a debt, the real estate in-the hands of the heir will be subjected to its payment.</p> <p>3. Liability of the Heir of an Heir for Debts of the Ancestor — Absence of Statutory Provision.</p> <p>Since at common law the heir of an heir would be liable, to the extent of real estate received by him, for a specialty made by the ancestor, and expressed to be binding on heirs, notwithstanding such liability is not expressly created by the statute of New York, which provides that the lands of heirs or devisees can be taken in payment of debts of the ancestor or testator, it will be held to exist, and be enforced in equity, in the absence of an express decision on the point by ihe court of appeals, and in view of the conflicting decisions of the state courts.</p>

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

These were three suits brought by G. C. Stapylton, as receiver of the First National Bank of Ocala, upon notes made for the accommodation of the bank. Judgments were given for the defendants in the court below, and the plaintiff sued out these writs of error.

<p>1. Trial — Instruction—Waiver of Error.</p> <p>A party cannot object that the court predicated an instruction on a state of facts unsupported by the evidence, when he himself asked an instruction involving the same state of facts.</p> <p>2. Assignment for Benefit of Creditors — Validity—Evidence.</p> <p>The incorporation into a deed of assignment of a provision that the assignee should not take possession of the property until he had filed an inventory and bond, which is only what is required by the statute in every case of assignment, does not render inadmissible evidence aliunde to show that a secret agreement to the contrary existed between the parties.</p> <p>3. Same — Evidence.</p> <p>Upon an issue as to the existence of a secret agreement between an assignor aod his assignee that the latter should take possession of the assigned property at once, in violation of the statute, evidence of acts of possession by the assignee, immediately following the execution of the deed, is admissible to be considered with other circumstances.</p>

This is a writ of error from the judgment of the circuit court for the Northern district of Ohio. The action was for damages for personal injury. The plaintiff was a newsboy in the town of North Baltimore, Ohio. The accident occurred in May, 1892, about 4 o’clock in the afternoon.

<p>1. Claim of Attached Property — Admissions by Interpleaders — Proof of Attachment Lien.</p> <p>Where claimants under a chattel mortgage allege in their interplea that the mortgaged property has been levied on by the marshal, under a writ of attachment issued in the suit in which the intfirplea is tiled, and admit in the progress of the trial that the attached property and that which they claim is tlxe same, it is not necessary, on the trial of the iuterplea, for the attaching creditor to oiler in evidence the record in the attachment suit to show that he lias secured a lien on the property.</p> <p>2. Correction of Veeimot after Discharge of Jury.</p> <p>Where the verdict is responsive to the issues, and clearly discloses the intention of the jury, the court may correct it in mere matters of form and detail, after the discharge of the jury.</p> <p>8. Motion for Peremptory Instruction — Ground of Motion —Questions Raised.</p> <p>Exception to the overruling of a motion by mortgagees for a peremptory instruction in their favor, on the ground that plaintiff ill attachment has failed to show any title to or lien upon The mortgaged property, does not raise the question of the sufficiency of the evidence to justify submitting to the jury the question as to whether mortgagees had participated in alleged fraud of the mortgagor in the execution of the mortgage.</p> <p>4. Mortgagee’s Participation in Mortgagor’s Fraud — Question for Jury.</p> <p>J'he question whether a mortgagee has so far participated in an alleged scheme of the mortgagor to defraud Ms creditors as to render the mortgage invalid as to them is generally so dependent for its solution upon inferences to be drawn from circumstances that it ought to be left to the jury, unless the ease is free from doubt and uncertainty.</p> <p>5. Trial — Praters for Instructions.</p> <p>A party who has asked an instruction which required the jury-to determine a question cannot complain that such question was submitted to the jury, though it be one of law.</p>

<p>This was a proceeding to procure the deportation oí Lau Sun Ho, as a Chinese laborer not entitled to remain in the United States.</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida.</p> <p>This was a libel of forfeiture against the steam vessel Three Friends for alleged violation of the neutrality laws. Exceptions to the libel were sustained in the court below, and the government appealed.</p>

<p>Demurrer to an Indictment against Harry Boyer for Bribery.</p>

<p>1. Patents — Invention.</p> <p>In a case used for the display of wreaths, crosses, emblems, etc., on graves, there is no invention in so fashioning tlie grooves or slots in which the glass is secured as to form a tubular or semicircular gutter to catch and carry off water falling upon the glass, nor in providing metal clips or stops, flexible in character, at the bottom oí the box, to hold the glass in place when the case is set at an angle.</p> <p>2. Same.</p> <p>There is no invention in making the legs or stays of a case used for the display of decorative art on graves out of wire inserted in tin ears, so as to work pivotally, instead of from any other metal, or hung with hinges, or to move up and down on a. stationary rod, or other like known method, so as to make the legs capable of extension and contraction, or of being folded up.</p> <p>3. Same.</p> <p>'The Kraatz patent, No. 392,03,8, for an improved case for exhibiting decorative art at graves, is void for want of invention. 79 Fed. 322, reversed.</p>

This appeal presents a question of the validity of the first claim of letters patent of the United States numbered 259,681, granted June 20,1882, to Philetus W. Cates.

<p>1. Patents — Anticipation.</p> <p>A patent cannot operate as an anticipation of a later patent when it is shown that the invention of the latter was perfected prior to the issuance of the former.</p> <p>2. Same — Invention.</p> <p>Merely changing the connection of the hand piece in a magazine firearm from a swinging to a piston breech is merely putting the hand piece and means of connection to a new use in the same place, and is not patentable there separately from the parts connected with.</p> <p>3. Same — Magazine Firearms.</p> <p>The Roper patent, No. 310,401, for a magazine firearm having an actuating hand piece beneath the barrel, and connected with a piston breech for removing exploded shells, and inserting cartridges, without- taking the gun from the shoulder, held invalid, because of prior use.</p>

<p>1. Patents — Anticipation—Processes.</p> <p>A patent for a process of producing imitation onyx from pyroxylin compounds is not anticipated by prior processes for producing from the same compounds imitations of veined ivory, mottled amber, tortoise shell, etc.; it appearing that an imitation of onyx had long been desired, but never before obtained.</p> <p>2. Same.</p> <p>The Stevens & Harrison patent, No. 546,360. for the production of imitation onyx from pyroxylin compounds, and the Thurber & Schaefer patent, No. 54:2,452, for an improvement in celluloid articles, and the process pi manufacturing the same, construed, and held not anticipated, valid, and infringed.</p>

<p>1. Patents — Limitation of Claims.</p> <p>The patent law is not intended to secure a monopoly of all the natural developments of a general principia to the person who happens to make some special construction embodying it a few weeks in advance of others, when it appears that such improvements were certain to be made in a short time.</p> <p>2. Infringement — Bicycle Tires.</p> <p>A patent which is clearly for a cushion tire having a tube filled with air or a roll of sponge rubber, merely to support and increase the activity of the tire, is not infringed by a tire having an inner tube completely encircled by an outer sheath to which is attached flanges, which are pressed into recesses formed by the flanges of the riin, so that when the tire is inflated they are securely looked in position and hold the tire firmly in place.</p> <p>S. Same.</p> <p>The Bartlett patents, reissue No. 11,21(5 (original No. 448,793) and original No. 46<i,532, both for improvements in bicycle tires, if valid at all, are not entitled to a broad construction; and, being limited to the actual invention, held, that they were not infringed.</p>

This was a suit in equity by John S. Ford and others, composing the firm of Ford, Johnson & Go., against Frank H. Bancroft and others, composing the firm of Bancroft & Rich, manufacturers of machinery for weaving cane, for alleged infringement of letters patent No. 401,050, issued April' 9, 1889, to Henry Y. Morris, for a machine for inserting diagonal strips in fabrics. The claims involved are 1, 4, and 5 of the patent in issue.

This is an appeal from a decree, of tbe district court, Southern district of New York, in favor of the libelant for damages to his canal boats Howard Stellar and Tompkins, caused by a collision with respondent’s car float No. 16, which broke away from her moorings, and collided with them. The facts sufficiently appear in the opinion.

<p>Marshal’s Ekes — Custody of Vessel — Payment.</p> <p>Under Bev. St. § 857, providing that the fees of officers, except those to be paid out of the treasury, shall be recovered in like manner as the fees of state officers for like services, a marshal who has incurred large expenses iu caring for and preserving a vessel in his custody is entitled to reimbursement thereof out of the proceeds o£ her sale in the registry, without awaiting the final decree in the cause.</p>

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

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

This was a suit in equity by Edward P. Allis and others against: John M. Stowell. The cause was heard upon a petition and accompanying affidavits for a reopening of the case and for leave to amend the answer in certain particulars.

<p>1. Suit to Quiet Title— Ownersiiir oe Title — Mining Lands.</p> <p>While, as applied' to ordinary claims of real estate in nonmining states or territories, the rule is general that to entitle the claimant to maintain an action to quiet title he must he (lie owner of Hie title to the land, yet, in respect to claims to mining lands in the Western states and territories, a system of mining customs, wages, and rigid s has developed taking the form and sanction of prescriptive laws of universal recognition, which national and state legislatures later crystallized into written statutes, and in which ownership of the title is not essential to the maintenance of such an action.</p> <p>2. Location oe Mining Lands — Patent.</p> <p>So long as the locator of mining lands complies with the statutory requirements and performs i?100 worth of work in each year, he is entitled against all the world, subject to the paramount sovereignty of the United States, to hold and enjoy his possession, even though he never apply for nor take out a patent. Rev. St. 1878, §§ 910, 2322, 2324.</p> <p>8. Equity Jurisdiction — State Statute.</p> <p>Where the requisite diverse citizenship exists, a suit may he brought on the chancery side of the federal court in a given state by a person in actual possession of real estate therein to quiet his title as against an adverse claimant, predicating tlie suit upon the state statute extending to such cases the jurisdiction of the state courts.</p> <p>4. Mining Claims — Adverse Claim — Sixty Days’ Notice.</p> <p>The fact that the 60 days prescribed in Rev. St. 1878, § 2325, for publication of notice of an application for a patent has expired before the application is adversed, does not preclude a contest of the applicant’s right to a patent, where the adverse claim does not arise until after the expiration of the 60 days, and where the applicant has let his application lie dormant for years without either paying the purchase money or doing the required $100 worth of work each year.</p> <p>5. Same — Abandonment—Relocation.</p> <p>The filing of an application for a patent does not suspend the obligation to keep up the required annual work where, without paying the purchase money, the claimant permits his application to sleep for years; and upon such failure to comply with the conditions the claim is open to relocation in the same manner as if no location had ever been made.</p>

<p>Foreclosure ok Railroad Mortgage — Order Approving Clerk’s Accounts.</p> <p>An order of court approving and confirming the clerk’s accounts covering the disbursements of the proceeds of a foreclosure sale of a railroad becomes a final decree on the adjournment of the term, and can only be reviewed by an appeal taken within six months.</p>

Tins is an appeal from a decree which dismissed a bill to foreclose a trust deed of certain real estate in the state of Nebraska, given by Hamilton It. Ottoman and Harriette L. Ottoman, his wife, to the appellant, IS. S. Ormsby, on October 6, 1888, to secure a promissory note for $4,000 and interest, made by Hamilton It. Ottmau, and payable to the order of W. L. Telford, which Tel-ford indorsed, and sold to Calvin 10. Hull on December 19, 1888. The appellees.

This was an action by the Wheeling Bridge & Terminal Railway Company against Mattie D. Cochran, executrix of the last will and testament of Robert H. Cochran, deceased.. The case was heard on a motion by the defendant for a continuance.

<p>1. Equity Jurisdiction — Multiplicity of Suits — Community of Interests.</p> <p>A number of persons having distinct interests in a quantity of tea about to be destroyed by a collector of customs, under tbe act forbidding importation of impure teas, may, on tbe ground of preventing a multiplicity of suits, maintain a suit in equity to enjoin tbe collector, since they bave a common interest in tbe question whether be has legal authority to commit the act.</p> <p>2. Constitutional Law — Foreign Commerce — Regulation of Imports.</p> <p>Under its constitutional power to regulate foreign commerce, congress had authority to pass the act of March 2, 1897, to prevent the importation of impure and unwholesome teas, and the power therein given to tbe secretary of tbe treasury to appoint a board of experts to prepare standard samples of tea, by which the purity and quality of imports are to be judged, was not a delegation of legislative power.</p> <p>3. Same — Conclusiveness of Appraisers’ Decision.</p> <p>The action of the board of appraisers in rejecting as impure and unwholesome certain Canton tea, being a decision of fact by a tribunal to which the matter is referred by law, cannot be reviewed by tbe courts on tbe theory •that their action was illegal because no standard as to Canton teas was.established by the board of experts appointed by tbe secretary of. tbe treasury.</p>

<p>1. Equity Practice — Time for Filing Replication.</p> <p>Under general equity rules 61 and GG, after an answer is filed on any rule day, complainant has until the next rule day to file exceptions thereto for insufficiency, and, if he-files no exceptions, until the next succeeding rule day to file a general replication.</p> <p>2. Equity Jurisdiction — Suit to Vacate Judgment at Law.</p> <p>When a motion for a new trial of an action at law has been made and denied under a statute authorizing it, and the judgment has been affirmed on appeal, and thereafter the defendant has petitioned for a rehearing, under a statute especially providing therefor, which petition is deified, a court of equity will not entertain a hill to set the judgment aside on the same grounds alleged in the motion for new trial and petition for rehearing'.</p> <p>3. Judgment against Corporation — Conclusiveness as to Stockholders.</p> <p>A judgment against a corporation is conclusive upon the stockholders, so that they cannot maintain a suit in equity to set it aside, after the corporation has made every defense against the judgment.</p> <p>4. Same.</p> <p>A stockholder cannot maintain a bill to set aside a judgment obtained against the corporation upon allegations which show that the corporation itself has only declined to bring such a hill on the advice of competent atiorneys that the proceeding could not he successful.</p>

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

<p>1. Evidence — Proof of Admitted Facts.</p> <p>Although relevant facts alleged in a complaint are not denied in the answer, the fact that the plaintiff, for greater certainty, introduces in evidence records tending to establish those allegations, does not prejudice the defendant, nor does the admission of them in evidence constitute error.</p> <p>2. Suit on Injunction Bond — Speeding Cause.</p> <p>In an action against the sureties on an injunction bond, given, in a suit to restrain the prosecution of an action at law, to indemnify the plaintiff in the latter action if it transpired that the injunction was wrongfully sued out, it appeared that the equity suit had occupied some seven years before a decree was entered vacating the injunction, but there was no evidence that the complainants in the equity suit, or their sureties, had themselves made any effort to speed the cause. Held, that it was to be presumed that the delay arose because all parties were willing that the hearing should he postponed.</p> <p>3. Pleading and Evidence — Immaterial Variance.</p> <p>In Uie complaint in tlie action on the bond it was alleged that the principals therein became insolvent before the injunction was dissolved, while defendants claimed that it was subsequent thereto that they became insolvent or that their insolvency became known. Held, that the question whether the damages sued for were the result of a failure occurring before the dissolution of the injunction, or so shortly thereafter that the plaintiffs could not make their debt, was immaterial, and that there was no material variance between the pleadings and the proof.</p> <p>4. Evidence — Testimony as to Statements by Judge.</p> <p>At the trial, evidence was admitted on behalf of the plaintiffs of a conversation held, after the decree in the equity suit had been entered, between the trial judge and the counsel for the respective parties, in which judge stated that lie would not allow the action at law, which had beemstayed, to be tried during the pendency of an appeal in the equity suit. Held that, in view of tho defense that the plaintiffs in the action on the bond had failed to prosecute the original action at law with due diligence after the injunction was vacated, this evidence was competent as showing the cause for their delay.</p> <p>5. Damages — Proximate Results.</p> <p>Held, further, that even if it were true, as contended by the defendants, that the defendants in the original action were solvent when the restraining order was dissolved, the jury were at liberty to find, on the evidence, that plaintiffs sustained the damage complained of as the direct result of the injunction.</p> <p>6. Action on Bond — Extent of Liability.</p> <p>The bond in suit was given to secure the payment of damages, “not ex-ceding $7,000,” which might be sustained by reason of the injunction. After the injunction was dissolved, judgment was secured against the defendants in the action at law for $11,847.79, upon which the sum of $4,975 was collected on execution therein, which sum the sureties on the bond, in the subsequent action against them, moved to have credited upon the judgment against them for the full amount of the bond. This motion was denied. Heldi no error, as the damages represented the loss sustained by the plaintiff in excess of the sum already collected on execution.</p> <p>7. Damages Subsequent to Suit.</p> <p>A plaintiff is entitled to recover compensation for such damages as he can establish on the day of the trial, providing they were the proximate result of the alleged wrongful or tortious act.</p> <p>Philips, District Judge, dissenting.</p>

This ivas an action at law by the 'United States against Joseph S. Harris, Edward M. Paxson, and John Lowber Welsh, as receivers of the Philadelphia & Reading Railroad Company, to recover the penalty prescribed by Rev. St. § 4388, for keeping stock in cars for an excessive time without unloading. The judgment below was for defendants, and the United States sued out this writ of error.

<p>1. Witnesses — Evidence of Character — Ex-Convict.</p> <p>A party who is' obliged to use as a witness an ex-convict may show by his testimony that he was a “trusty.”</p> <p>8. Same — Showing Interest.</p> <p>Where an employé is used as a witness, it is permissible for the adverse party to show what wages he receives.</p>

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

The plaintiff in error, the First National Bank of Kansas City, brought an action against the defendant in error, J. Wr. Rush, upon Ms promissory note for 88,780, made on February 5, 1894, and payable to the order of the bank.

<p>1. Marshal — Unnecessary Fees and Charges.</p> <p>A marshal is not entitled to mileage even for distances actually traveled, or charges for actual expenses paid by a deputy marshal for his meals at his place of abode, or for the attendance of two deputy marshals in the same case before a circuit court commissioner upon the examination for the discharge of a prisoner asa poor convict, unless under the circumstances the charges were necessarily incurred, in which case, in an action to recover the same, the fact should be made to appear. Act March 3, 1887; Rev. St. § 1042.</p> <p>3. Same.</p> <p>Nor may he recover for service of a certificate of sentence and order modifying the sentence, issued by the district court, upon a person who was in court when the sentence was pronounced and when it was modified.</p>

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

This is a proceeding in error to review a judgment of tbe circuit court sustaining a demurrer to tbe petition of tbe plaintiff and dismissing tbe same. The petition was filed under the act of March 8, 1887, which provides for the bringing of suits against the United States. The petition set forth: That the plaintiff, D. M. Ferry & Co., was a corporation organized under the laws of the state of Michigan.

At Law. The plaintiffs sued the defendant company by attachment, in the state court of proper jurisdiction, in an action of damages for a breach of contract, alleging that the defendant had bound itself for one year to sell its bicycles, at fixed prices, only to the plaintiffs, within certain specified territory of the states of Tennessee, Mississippi, and Arkansas, and that in violation of that agreement, without the consent of the plaintiffs, they had sold and contracted…

<p>1. Marshal’s Fees — Demurrer.</p> <p>Allegations of fact contained in brief of respective counsel cannot be relied upon to sustain a demurrer, where the record does not disclose the matter relied on.</p> <p>3. Same — Expenses in Endeavoring to Arrest — Horse Hire.</p> <p>The contract for the hire of a horse by a deputy marshal, not exceeding the $2 allowed by law in endeavoring to arrest, is of such an inseparable nature that it cannot be said that one-half of the expense should be merged in the fee for transportation returning, and the whole sum should be allowed as an actual expense in endeavoring.</p> <p>8. Same — Pee for Committing on Warrant of Removal.</p> <p>A marshal is entitled to a feer of 50 cents for committing a prisoner on warrant of removal in a district to which he has been transported in accordance with law.</p> <p>4 Same — Service of Subpcgna.</p> <p>A person committed to jail to answer a charge before the circuit court can be taken before a commissioner by a deputy marshal, provided he has a subpoena for such attendance; and for this service the deputy is entitled to the regular fee.</p> <p>5. Samp, — Service of Subpoena.</p> <p>A marshal is not bound to take judicial notice of the fact that cases were to be tried on the same day before the same commissioner; and lie is bound to serve» subpoenas duly issued by a, commissioner, and the cireuinsiance that a witness was examined in another causé before the same commissioner does not deprive the marshal of his regular statutory fee therefor.</p> <p>6. Same — Sunday Per Diem.</p> <p>The marshal is entitled to his regular per diem where the court was opened and adjourned on Sunday, in pursuance of section 671, Kev. St.</p> <p>7. Same — Order to Bring in Prisoner to Court.</p> <p>Orders made by the court upon the marshal to bring prisoners to court for Irial who have been committed by commissioners to jails of oilier counties are not within the provisions of Kev. St. § 10B0, that no writ is necessary to bring into court any prisoner or person in custody, but that it shall be done upon order, and no fee shall be charged therefor by the clerk or marshal, which relates solely lo prisoners and witnesses while in attendance upon court; and the marshal is entitled to charge mileage in the going to serve such orders.</p> <p>8. Special Deputy — Necessity of Oath.</p> <p>Before the act of congress of May 28, 1896, the marshal was authorized to appoint a special deputy according to the practice adopted by law in Hie state wherein his district is located; and although such deputy has not taken the oath prescribed by section 782, Kev. St., if his appointment is valid under existing laws relative to appointment oí' deputy sheriffs in the state of his district, fees earned by such deputy are properly chargeable to the United States.</p> <p>9. Same — Sleeping-Car Fare.</p> <p>The marshal, while transporting prisoners to a penitentiary involving a trip of B6 hours, is entitled to sleep, and, as a part of his reasonable and actual expenses, to engage and use a sleeping-car berth.</p> <p>10. Same — Office Expenses — Oath to Accounts.</p> <p>The marshal is entitled, under the act of congress of May 28, 1896, to be reimbursed for the expense of affidavits to his current accounts to the treasury department.</p>

This was an action at law by Charles H. Breyman and George W. Tonson, contractors under the firm name of C. H. Breyman & Oo. against the Ann Arbor Bailroad Company, to recover money alleged to be due for work done under a contract for the construction of a' fill. The contract under which the work was done contained the following provisions, among others: “First.

<p>1. ‘Appeal — -Review—Special Findin as — Statement of Facts.</p> <p>In an action on a policy of life insurance, which was submitted upon an agreed statement of evidential facts from which ultimate facts were to be found, the trial court determined that a notice of assessment was insufficient, under tbe state laws, but made no special finding as to when the notice was served, what it contained, or to which of several classes of insurance companies provided for by the state laws the defendant belonged. Held, that since the statement of facts amounted to a mere report of the evidence, which could not, on proceedings in error, be examined in order to determine the law applicable thereto, the record, in the absence of a special finding of facts, presented no question for the determination of the appellate court. Raimond v. Terrebonne Parish, 10 Sup. Ct. 57, 132 U. S. 192, followed.</p> <p>2. 'Same — Assignment of Error. — Opinion of Court.</p> <p>Since the opinion of the trial court is no part of the record, assignments of error directed to such opinion will not be considered on review.</p>

<p>1. Contracts — Waiver—Pleading and Proof.</p> <p>In an action for broach of contract, a party who has pleaded waiver of a stipulation by subsequent contract cannot be allowed to rely on a waiver by conduct</p> <p>2. Same — Sale.</p> <p>A stipulation by the purchaser to make advances on a given date, before the time fixed for any shipments, is not waived by the seller by making shipments of part of the goods, though the Ml amount has not been advanced according to the stipulations.</p> <p>3. Same — Dependent and Independent Promises.</p> <p>A stipulation by the purchaser to make specified advances on a certain date prior to the time of shipment of the goods will not be construed as an independent promise, when both parties understand that such advances are necessary to enable the seller to procure the goods from other parties. In such case the advances are a condition precedent to performance by the seller.</p>

States for the District of Kansas. Prior to January, 1883, J. H. Engle was engaged in general merchandise business at Hamburg, Iowa. His son, John R. Engle, who had recently attained his majority, was engaged as a clerk in 1898 in a business house at St. Joseph, Mo. According to the testimony of J. H. Engle, he concluded to admit his son into a general partnership in his business at Hamburg.

<p>1. Contract — Validity—Consideration.</p> <p>An agreement containing rules which are to govern in the sale and shipment of cotton from one of the parties to the other is not invalid because it neither binds one party to ship nor the other to receive cotton, but is binding so far as sales and shipments are made.</p> <p>2. Pleading — Amendment- -New Cause of Action.</p> <p>Where a petition was based on a written contract alleged to have been made between plaintiffs and defendants, an amended petition alleging the same contract to have been entered into between defedants and one member of plaintiff firm, and afterwards assumed by plaintiffs with defendants’ consent, does not state a new cause of action, the breach relied on being the same.</p> <p>8. Contract — Action for Breacu — Condition Precedent.</p> <p>Where defendants sold and shipped plaintiffs certain cotton under a guaranty of weight and grades, contracting to promptly adjust any differences in those respects shown by inspection in Liverpool, plaintiffs are not required to prove payment of losses arising therefrom before being entitled to recover for a breach of the contract.</p>

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

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

<p>In Error to the District Court of the United States for the Southern Division of the Northern District of Alabama.</p> <p>Charles J. Langston, the defendant in error, was a letter carrier of the United States at the post office in Anniston, Ala., and brought suit in the district court of the United States for the Northern district of that state for extra or additional compensation for certain time in which he was employed in excess of eight: hours per day. The United States denied the allegations in plaintiff’s petition, and on December 16,1896, the said court tiled the following findings: “The case of James B. líivers, another letter carrier, having been submitted and tried at the same time.” The findings cover both cases, hut the United States has taken appeal In but one.</p> <p>Finding of Facts.</p> <p>(1) The claimant Charles J. Langston was, from ihe 1st day of October in the year of fSOO to the 3d day of January In ihe year of 1893, a letter carrier . in the post office at the city of Anniston, in the state of Alabama, of the class entitled to a salary of $600 a year to the 30th day of October in the year of 1891, and $850 a year thereafter, but made no sufficient proof of overtime from October 1, 1890, to October 1, 1891.</p> <p>(2) The claimant James B. Rivers was, from the 4th day of January in the year of 1893 to the 30th day of April in the year of 1893, a letter carrier in the post office of the said city of Anniston, in the state of Alabama, of the class entitled to a salary of $600 a year.</p> <p>(3) As such carriers, said ¿angston and Rivers were from time to time employed in excess of eight hours per day in the performance of their duties. The excess over such eight hours occupied in the delivery of mail matter and the service incident thereto, calculated at the rate of 20% cents an hour during their respective terms of service at $600 a year, and 29<s/24 cents an hour while at $850 a year, would amount to $99.22 for the said Langston from October 1, 1891, to January 3, 1893, and $6.60 for said Rivers. This time was duly recorded on the time record of the office.</p> <p>(4) In addition to the time served and recorded, as stated in the preceding finding, there were also certain intervals, or “swings,” between their trips, during which they were not actively employed, or required by any express order of the postmaster to remain in or about the office. Such intervals, however, did not exceed one-half hour each in length, and were too short to be used for their .personal benefit. They invariably remained in their uniforms during such intervals, and generally in the office.</p> <p>Conclusion of Law.</p> <p>If they are entitled to be paid for the time occupied in these intervals, as set forth in the last preceding finding, the amount due them for the same would be $136.50 in the case of claimant Charles J. Langston, and $20.62 in the case of claimant James B. Rivers. Charles J. Langston, $235.72; James B. Rivers, $27.22.</p> <p>Judgment of the Court.</p> <p>At a term thereof, held at Birmingham, November 23, 1896, “this cause having been submitted, after issue joined and testimony given, and the counsel for the parties having been heard, and the proceedings considered, it is thereupon, this 19th day of December, 1896, by Alexander Boarman, Judge, and by authority of this court, adjudged, ordered, and decreed that the claimant herein, James B. Rivers, have judgment for 2722/100 dollars ($27.22), the full amount claimed therein, against the defendant, the United States of America, and his costs -($8.80) eight so/100 dollars; and that the claimant herein, Charles J. Langston, have judgment for two hundred and thirty-five 72/100 ($235.72) dollars, of the amount claimed therein, against the defendant, the United States of America, and his costs, ($12.60) twelve 60/ioo dollars.”</p> <p>To these findings the United States assign five specifications of errors. The last one, which more specifically than the others raises the question submitted for the decision of this court, is as follows:</p> <p>“(5) The court erred in allowing the plaintiff compensation for the intervals between trips, designated as ‘swings,’ during which he was not actively employed, or required by the orders of the postmaster to remain in or about the office.”</p>

<p>1. Missouri Swamp Lands — Sales on Execution.</p> <p>Swamp lands, granted by congress to Missouri, and by the state legislature to Stoddard county, are held in trust for the benefit of tbe county public schools, and are not subject to sale on execution to pay a general judgment against the county; and no title' is acquired by such a sale.</p> <p>2. Same — Conveyances in Settlement of Illegal Claims — Authority of County Court.</p> <p>In Missouri, the county courts are agents of the county to dispose of swamp school lands, but can only exercise the trust in strict accordance with the statutory scheme of disposition, which requires that such disposition shall be by sale at not less than $1.25 per acre. Hence, conveyances made for less than that price, pursuant to a compromise and settlement effected by the court with purchasers claiming under an invalid sale on execution against the county, are themselves invalid, as being an indirect appropriation oí the land to ihe payment of the judgment, and as being a bartering, instead oí a sale.</p> <p>8. Ejectment — Equitable Title.</p> <p>In ejectment in the federal courts, plaintiff can get no support for his title because of alleged estoppel or recognition thereof by the defendant, but must stand or fall on his own legal title.</p>

This was an action by Mary J. Hooper and Henry H. Hooper, her husband,, and William F. Porter, for the use of Mary J. Hooper, against the Jacksonville, Mayport & Pablo Railway & Navigation Company, Mary Wallace, and John N. C. Stockton, on a supersedeas bond. There was judgment for plaintiffs, and defendants bring error.

On motion to quash indictment against Matthew Kuhl for having in his possession an instrument in the similitude of a bank note or hill of the United States.

<p>In the matter of the application of John J. Boyle to be discharged from the custody of the sheriff of the county of Camden, under an order nnd warrant of commitment issued by Jehu Evans, a justice of the peace of said county of Camden, and dated March 18,1897.</p> <p>On March 4, 1897, a subpoena was issued by James M. Cassady, a United States commissioner for the district of Now Jersey, to John ,T. Boyle, of the city of Philadelphia, Pa., to appear before the said commissioner at a commissioner’s court at Camden, N. J., in the district of New Jersey, on March 18, 1897, to testify on behalf of the United States in- the matter of a certain criminal complaint then pending and undetermined before said commissioner, between the United States and Bushrod W. J. Redheffer and Aman A. Redheffer; the same being a complaint made before the said commissioner by a United States postal inspector against the defendants for an alleged violation by them of the criminal laws of the United States concerning postal matters, and which proceedings were instituted by the United States before the said commissioner for the purpose of having the defendants held to await the action of the United States grand jury. The subpoena, which was in due form, was legally served on the said Boyle in the city of Philadelphia, Pa., and in pursuance of the command of said subpoena he attended before the said commissioner, at his court in the city of Camden, N. J., on the 18th day of March aforesaid, having gone from Philadelphia to Camden on said day for that purpose. After testifying before the commissioner in said cause on behalf of the United States, and as he was leaving the commissioner’s office, he (.the said John J. Boyle) was arrested by a constable of Camden county by virtue of a certain warrant issued by Jehu Evans, a justice of the peace of the county of Camden, N. J., which warrant was issued by said justice upon a complaint made by Bushrod W. J. Redheffer aforesaid, charging the said John J. Boyle, on the 10th day of April, 1896, with having committed perjury in violation of the laws of the state of New Jersey. The constable, after arresting .the said Boyle, took him before the justice of the peace who issued the warrant, and who committed the said John J. Boyle, on said 18th day of March, 1897, to the common jail of the county of Camden, N. J., to await the action- of the grand jury of the state of New Jersey in and for the county of Camden, N. J., in default of giving bail in the sum of $1,200. Afterwards, on the 22d day of March, the said John J. Boyle presented, by his attorney, Mr. Henry I. Budd, Jr., of the New Jersey bar, a petition for a writ of habeas corpus to the Honorable ANDREW KIRKPATRICK, judge of the United States district court for the district of New Jersey, alleging his arrest as before set forth, and complaining of its illegality. Judge KIRKPATRICK allowed the writ, and the prisoner was produced before him on March 23, 1897, when the matter was tinned over to the United States attorney for the district of New Jersey. The cause was continued until March 24th, so that the sheriff of Camden county could properly amend his return to the writ of habeas corpus, and so that the prosecutor of the pleas of Camden county, N. J., representing the state of New Jersey, could attend, if he desired,- to oppose the discharge of the prisoner. On March 24th the ease was heard by Judge KIRKPATRICK, and was argued on behalf of the United States by J. Kearny Rice, United States attorney for the district of New Jersey, and by Wilson H. Jenkins, the prosecutor' of the pleas of Camden county, N. J., for the state of New Jersey. Judge KIRKPATRICK, after the arguments had been concluded, held that the arrest of Boyle by the Camden authorities was illegal, and ordered his discharge from custody, and also directed that the United States marshal for the district of New Jersey safely conduct the said Boyle to the city of Philadelphia, from whence he came to testify on behalf of the United States as aforesaid. Judge KIRKPATRICK held (in which Judge ACHESON, who was sitting in the circuit, concurred) that Boyle, having been subpoenaed by the United States to attend in New Jersey as a witness, and having left Pennsylvania for that purpose, was entitled to protection from- arrest by the state authorities of flew Jersey for any alleged offense before then charged to have been committed by him. Judge KIRKPATRICK also held that he was entitled to be protected by the United States in returning to Philadelphia after having given his testimony before the United States commissioner in Camden, N. J.</p>

<p>1. Immigration or Chinese — Who are Laborers</p> <p>The wives and minor children of Chinese merchants lawfully domiciled in the United States are not laborers, and not within the intent of the exclusion acts, so as to prevent them from entering the country.</p> <p>2. Same — Decision of Immigration Officer.</p> <p>Under the provision of the appropriation act of August 18, 1894, declaring the decision of the appropriate immigration or customs officers, if adverse to the alien, final, unless reversed hy the secretary of the treasury, prevents any review of such a decision on habeas corpus.</p>

This was a suit in equity by the Pittsburgh Crushed-Steel Company against the Diamond Steel Company and others for alleged infringement of a trade-mark, and to restrain alleged unfair competition in trade.

<p>This was a bill in equity by the Allegretti Chocolate Cream Company against Louis J. Keller to restrain an alleged unfair competition in business. '</p>

<p>This was a suit in equity by the Regina Music Bex Company against Alfred E. Paillard for alleged infringement of four patents granted to Gustav Adolph Brachhausen for improvements in music boxes.</p>

<p>1. Patents — Anticipation.</p> <p>Tt is not sufficient, to constitute an anticipation, that the devices relied on might, by a process of modification, reorganization, or combination with each other, he made to accomplisli the function performed by the devices of the patent sued on.</p> <p>2. Same — Novelty—Burden of Proof.</p> <p>To overcome, on the ground of want of novelty, the prima facie case made by tlie patent itself, the burden is on defendant to clearly establish that defense, and every reasonable doubt should be resolved against him.</p> <p>3. Same — Infringement.</p> <p>In a patent for improvements in multiple switch boards for telephone exchanges, the subject-matter is not one in which form is essential; and in determining questions of infringement the rule will be applied that, disregarding mere matters of form, the court will ascertain whether the several devices or elements perform the same functions in substantially the same way, to accomplish the same result.</p> <p>4 Same — Switch Board for Telephone Exchanges.</p> <p>The Scribner patent, No. 330,0(51, for improvements in multiple switch boards for telephone exchanges, whereby is effected a direct connection of two subscribers’ lines through the usual plugs and cords, at the same time cutting out of the talking circuit thus formed all the separable contacts belonging to such lines, and also the conductors leading to the individual annunciators, held not anticipated as to claims 2, 4, and 6, which disclose a pioneer invention; and claims 2 and 4 held infringed, and claim 6 not infringed.</p> <p>5. Same — Suit against Corporation and Officers.</p> <p>Decree will not go against officers of an infringing corporation, joined as defendants, when it does not appear that, in their individual capacity, they have violated the complainant’s rights, or derived any profit or advantage from the patent sued on; and the bill will be dismissed as to them.</p>

<p>1. Patents — Infringement Suits — Parties.</p> <p>A bill against several defendants contained allegations involving charges of conspiracy and joint infringement. The proofs were insufficient to support these allegations, and by leave of court complainant dismissed as to all but one corporation, which was charged in the bill with using devices covered by the patent. Eeld, that the court properly granted leave to the complainant to dismiss the bill as against one of the defendants, while refusing to dismiss the bill generally for misjoinder of parties.</p> <p>2. Same — Character of Claims.</p> <p>One who has made a broad invention may state its general principles and requisite features in one claim, and, in another, the general principles and requisite features, supplemented by a more particular description of the details involved in the contemplated structure.</p> <p>3. Same — Electrical Car Heaters.</p> <p>The McElroy patent, No. 500,288, for an electrical heater for street-railway cars, construed, and held valid, and infringed as to both its claims.</p>

This was a suit in equity by Milton A. Wheaton against Charles B. Kendall, and was brought, under Rev. St. § 4915, to determine the question of priority of invention, after a decision against the complainant on interference proceedings in the patent office.

<p>Genekai, Avbiiage — Siskvicks eok Genekai, Benefit.</p> <p>Whore llio managing owner makes a journey to reach his vessel in a port, of distress, going in good faith, and induced in part by an honest feeling that ills presence is necessary to protect the common interest, he will be entitled ro compensation to the extent; that ids time was devoted to matters of common interest, and not to his own interest as owner.</p>

<p>This was a libel by John O’Meara against the ferryboat Nevada and the steamship Portia to recover for injury to his horse, caused by a collision between the two vessels. The question was heard on a motion by the claimant for an order of sale of the Nevada before final decree. The owner of the Portia opposed the motion- upon the ground (hat the Portia had been injured in the collision, and that It was such owner’s intention to file a libel against the' Nevada therefor.</p>

<p>Shipping Commissioners — Sararíes and Expenses — RkOttrations.</p> <p>On motion of the shipping commissioner of the port of New York for confirmation of Ms accounts of the receipts and expenditures of his office for the year 1882, held, that the payment of a salary of $3,648 to each of his three sons as deputies was unreasonable and excessive, and that for the future the following regulations should be adopted: (1) That the employment of one chief clerk, deputized, in case of necessity, to act for the shipping commissioner in his official capacity, and to be allowed a salary not to exceed $2,500 per annum, may be justified by the demands of the office, and is authorized. (2) Three other clerks, at salaries not to exceed $1,200 each, or two at salaries not to exceed §1,600 each, in the discretion of the commissioner, may also be employed. (3) All compensation received by the commissioner, or his subordinates, for services rendered during office ho'urs to owners or masters of vessels or to seamen, are to be accounted for and returned with the receipts of the office.</p>

<p>1. Cebtification of Questions to Supreme Coubt.</p> <p>Under section 6 of the act of March 3, 1891, the practice of certification is intended to he availed of only when the certifying court is in douht about the specific question or questions certified, and not as an allowance of appeal, whereby questions about which no doubt is entertained may nevertheless be passed up for decision.</p> <p>2. Same — Statement of Facts.</p> <p>Under rule 37 of the supreme court, providing that certificates “shall contain a proper statement of the facts on which such question or proposition of law arises,” it is the fundamental facts that are to be stated, and not the evidential facts from which the fundamental facts are found.</p>

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

<p>This was a suit by William Reed against the Atlantic & Pacific Railroad Company to recover dividends alleged to be due from the latter company to the plaintiff as a stockholder in the Pacific Railroad Company, under the terms of a lease made by the Pacific Company to the defendant.</p>

<p>1. De Facto Public Corporation— Collateral Attack on Organization.</p> <p>Where a reputed public corporation is acting under the forms of law, unchallenged by the state, the validity of its organization cannot be brought in question by private parties. Neither the nature nor tlie extent of an illegality in its organization can affect its existence, if it be acting under color of law, and the state makes no complaint.</p> <p>S. Organization op Irrigation District — Decree op Confirmation — Res Judicata.</p> <p>Where proceedings are had in the proper court, as provided by Act Cal. March 16, 1889, giving the superior court of the county in which the lands of an irrigation district are situated power to determine the legality and validity of each and ail the proceedings for the organization of such district, the decree rendered thereon, declaring said district to have been duly and legally organized, is conclusive against any attack for fraud or illegality in any of the proceedings for such organization.</p> <p>8, Suit against Irrigation District — Validity op Organization — Limitation.</p> <p>A suit in equity, so far as it seeks relief on the ground of fraud or illegality in proceedings for the organization of an irrigation district, is barred if brought two years after the order is made by the board of county supervisors declaring the district duly organized, under Act Cal. March 7, 1887, § 3, as amended by Act March 20, 1891.</p> <p>4. Injunction — Irrigation District — Tax Deed — Accrual op Cause op Action.</p> <p>The right to enjoin the directors of an irrigation district from taking a deed to complainant’s land bought in under tax sale, and from making future assessments, accrues with the threatened making of the deed and levy of assessment, and not with the issuance and sale of the bonds, for the payment of which sueh sale was made and such assessments are threatened.</p>

.Oregon. This was a suit in equity brought by D. Albert Hiller and Sarah F. Hiller, his wife, against Caroline A. Ladd and others, as executors of the will of William S. Ladd, deceased.

This was a suit in equity by the Newbúryport Water Company against the city of Newbúryport. Heard on demurrer to the bill.

This was a suit in equity by James J. Hicks against Ferdinand G-. Otto and others for alleged infringement of a patent. The court having heretofore directed a decree for the complainant on the merits (19 Fed. 749), the defendants have now made an application to amend the answer, and for a rehearing on the ground of newly-discovered evidence.

This was an action at law by the American Book Company against George A. Gates to recover damages for the publication of a libel in respect to its business methods.

This was an action by Frank O. liobertson against Blaine county, Idaho, to recover on certain county bonds issued by Alturas county, a part of whose territory is at present included in the county of Blaine. The case was heard on demurrer to the complaint, setting up the statute of limitations.

This is an action for deceit brought by the plaintiff in error, Kingman & Go., a corporation of the state of Illinois, against the Stoddard Manufacturing Company, John W. Stoddard, the Milburn Wagon Company, Charles F. Milburn, and Frank D. Suydan. The Stoddard Manufacturing Company was not served with process and did not appear to the action.

<p>1. Trial — Discretion of Court — Interpreter.</p> <p>A sister of plaintiff was a witness for him, and also acted as interpreter on the first trial without objection. On the second trial, defendant objected. Eeld that, while it would have been better to have a disinterested interpreter, yet, under the circumstances, the matter was in the court’s discretion.</p> <p>2. Master and Servant — Personal Injuries.</p> <p>In an action to recover for the death of a workman by the falling upon him of a tram car from a trestle, the uncontradicted evidence showed that there was no proper guard rail to prevent the ear from jumping the track. There was some evidence that a guard chain was customary, and should have been used in dumping, but plaintiff’s attorney, in addressing the jury, stated that he claimed no negligence on that ground. The court, however, told the jury that the absence of a guard chain might be considered. Eeld that, even if this were erroneous, it was immaterial, as the absence of a guard rail was of itself sufficient to support a verdict for plaintiff.</p> <p>8. Same — Safe Place to Work.</p> <p>An employé is not entitled to an absolutely safe place to work in, but only to a reasonably safe place, and to reasonable care on tbe part of his employer in view of the situation and the danger.</p>

This was an action on the case by the firm of O. T. Houston & Co. against Filer & S to well Co., a corporation. The case was heard on a motion to quash the service of summons.

<p>Master and Servant — Negligence of Fellow Servant.</p> <p>Deceased was employed as a dumper engaged in unloading coal hoisted from a vessel in large buckets, to which were attached pieces of rope called “tails,” which, in the operation of dumping, the dumpers took hold of, to steady and pull the buckets towards them. These “tails” were made, spliced, and put on-the buckets by the dumpers, the rope being- furnished by the employer. The giving way of one of these tails, from not being properly spliced, resulted in the fall of deceased through a hatchway, and his consequent death. Held, that the negligence was that of fellow servants, for which the employer was not responsible.</p>

<p>1. Neutrality Laws — Construction.</p> <p>While it is not the purpose of our neutrality laws in any manner to check or interfere with the commercial activities of citizens of the -United States or of others residing therein and interested in commercial transactions, nor to render unlawful mere commercial ventures in contraband of war, they were designed to prohibit acts and preparations on the soil or waters of the United States, not originating from a due regard for commercial interests, but of a nature distinctively hostile in a material sense to a friendly power, engaged in hostilities, and calculated or tending to involve this country in war, whether an incidental or indirect commercial profit does or does not result from them.</p> <p>2. Same — Fitting Out and Arming Vessel.</p> <p>It is not necessary to a forfeiture of a vessel under section 5283 of the Revised Statutes of the United States that the furnishing, fitting out, or arming of her for the prohibited purpose should be completed within the limits of the United States. It is sufficient that, by prearrangement within the limits of the United States, the vessel having been procured here, the furnishing, fitting out, or arming is to be effected or completed after she has' gone beyond those limits.</p> <p>3. Same — Intent.</p> <p>It is necessary to a forfeiture that the -intent that a vessel furnished, fitted out, or armed to cruise or commit hostilities against the subjects or property of a foreign prince with whom the United States is at peace, within the meaning of section 5283, shall be formed within the limits of the United States and shall be of a fixed and unconditional nature. Where such intent originates on the high seas beyond the limits of the United States, though on an American vessel which then for the first time is intended to commit such hostilities, no forfeiture accrues under the section.</p> <p>4 Same.</p> <p>If a vessel be provided, coaled, and provisioned by her master in the United States, by prearrangement, for the purpose of transporting and landing in Cuba an armed military expedition from the United States against the Spanish government in Cuba, in aid of the Cuban insurgents, quaere whether such vessel is furnished or fitted out with intent that she should be employed in the service of the Cuban insurgents to commit hostilities against the subjects or property of Spain, within the meaning of section 5283.</p>

<p>This was a suit in equity by Hentry Tetlow against Herman Tappan for alleged infringement of a trade mark or name.</p>

<p>■Trade-Marks — Infringement—Whisky Bottle Labels.</p> <p>A label on whisky bottles which in size, shape, and color is an evident imitation of the label on a well-known brand of whisky, and which differs from it merely in some details of the inscriptions on the label, is a fraud, the use of which will be enjoined.</p>

This was a suit in equity by Frank Á. Stuart against the F. G-. Stewart Company and others to enjoin alleged unfair competition in trade.

<p>Patents — Validity-—Infringement—Metallurgical Furnaces.</p> <p>The Peifer patent, No. 411,226, for an improvement in metallurgical furnaces, intended to prevent the part known as the “neck” from being cut away by boiling slag, by providing a series of cold-air inlet ports, whereby jets of cold air are caused to impinge against the sides of the neck just below its floor line, held not anticipated, valid, and infringed.</p>

<p>Suit by Masf, Foos & Co. against the Stover Manufacturing Company to restrain the alleged infringement of letters patent No. 433,-531, issued August 5,. 1890, to S. W. Martin, for a windmill.</p>

<p>1. Patents — Assignment—Future ímprovembnts.</p> <p>The Park patents, Nos. 554,080, 543,102, 555,877, and 573,790, for improvements in air brakes for railway trains, are improvements on his patent No. 393,784, so as to be included in an assignment made by him of the latter patent and any future “improvements” thereon to be made- by him.</p> <p>2. Same — Assignments .of Future Inventions — Public Policy.</p> <p>A contract assigning a patent, and all future improvements thereon to be made by the patentee, is not against public policy, though it binds the inventor to assign, for a consideration already paid, inventions made many, years thereafter. Littlefield v. Perry, 21 Wall. 226, and Manufacturing Co. v. Gill, 32 Fed. 697, followed.</p> <p>3. Same.</p> <p>A contract to assign a patent, and all future improvements thereon, will be enforced as to patents for such improvements, as against assignees thereof who take with knowledge of the contract or with notice sufficient to put them on inquiry.</p> <p>4 Same — Specific Performance.</p> <p>A decree for specific performance of a contract to assign a patent and all future improvements thereon may be so conditioned as to require complainant himself to do full justice by reimbursing defendant for all his outlays in perfecting such improvements and procuring- patents therefor, and also by paying him a reasonable per diem, measured by what his services would have commanded in other fields, such as expert anil mechanical witness, etc.</p>

These were cross libels for damages resulting from injuries to a barge at a dock; the first being filed by Philip J. Genthner against William Otis Wiley, and the second by Wiley against Genthner.

<p>1. Sale of a Vessel — Payment of Purchase Money and Delivery.</p> <p>The sale, by a shipwright, of a vessel being repaired in his yards, is complete on the payment of the purchase money and the delivery of possession as far as it can be done, the vessel remaining in said yards, and the repairs continued in the name of the purchaser; no bill of sale or written instrument being necessary to transfer title to a vessel.</p> <p>2. Maritime Liens — Materials—Contract for Lien.</p> <p>Where supplies for the equipment of a vessel are sold to the owner, who is known to be financially irresponsible, and are forwarded and delivered to the vessel at a port in another state under an express contract for a lien, the sellers are entitled to a lien.</p> <p>8. Same — Business for Which Vessel is Intended — Maritime Lien.</p> <p>A contract for supplies for a completed ship intended to engage in navigation and commerce, though at the time not prepared to enter upon a voyage, and entitled to the rights and privileges of a vessel of the United States, is, in its nature, maritime, where the object and effect is to enable her to pursue her business upon the seas; and for supplies so furnished the seller is entitled to a lien on the vessel.</p>

This was a suit in equity by Lutie Jenns against Henry Landes, Christian Landes, the First National Bank of Fort Townsend, and the Landes Estate Company. The cause was heard upon demurrer to the second amended complaint.

This was an action founded on breaches of contract, and was brought by Donald Morrison against the North American Transportation & Trading Company, a corporation of the state of Illinois.

This was a suit by James C. Hunter against Mabel B. Conrad and others. The case was heard on a motion to remand to the state court.

<p>Appeal and Error — Bill of Exceptions.</p> <p>An objection and exception to the admission of evidence are not available on error where the 'grounds of objection are not stated in the bill of exception. The omission is not cured by a statement of the grounds in the assignments of error.</p>

<p>Equity — Knowledge of Pacts — Intervening Rights — Laches.</p> <p>In 1874 complainant’s husband informed her that he intended to obtain a divorce, and marry another, and they separated, she going to a distant state. Soon after, he did obtain a divorce, married a woman who believed the divorce valid, and children were born to them. He acquired title to valuable timber lánd, which he incumbered by mortgages securing $10,500. In 1886 his second wife obtained a divorce from him, and in 1889 he wan killed. After his death, half of the land was decreed to his second wife, as community property, and the owner of the mortgages obtained title to the other half by foreclosure and sale. In June, 1891, complainant first had actual notice of the divorce, and, over four years thereafter, began a suit in equity to establish her title to the land, alleging that the divorce was-fraudulently obtained, and that the court, because of defective notice, had no jurisdiction to grant it. Held that, if complainant ever had any rights to equitable relief, they were all forfeited by her laches.</p>

This was a suit in equity by the Northern Pacific Railroad Company against John Galvin, as treasurer of Lewis county, in the state of Washington, to restrain a sale of lands for delinquent taxes.

<p>1. Injunction — Cutting and Removing Timber — Action at Law.</p> <p>Pending an action at law to determine tlie title to lands, equity will enjoin the cutting and removal of timber, when complainant shows a prima facie title.</p> <p>2. Same.</p> <p>Where defendant cuts timber on lands in dispute after issuance of a restraining order, but before service thereof, he will be enjoined from removing or disposing of any of the timber still remaining within the jurisdiction of the court.</p>

<p>Corporation's — Excessive Indebtedness — Lia mi, tty ov Officers and Directors.</p> <p>Under the Illinois statute making the officers and directors of a corporation, assenting thereto, personally liable for excess of indebtedness over capital stock (Kev. St. c. 32, § 16), such liability is secondary only, being conditional on the existence of a deficiency after the corporate assets are exhausted. It is also a joint liability, and limited to the pro rata share necessary to make good the deficit when known, and when all the contributors to the fund and the amount and value of their shares are ascertained. Hence, to determine the amount of their liability, an accounting is necessary, and the proceeding must, accordingly, be in equity, and the corporation is an indispensable party.</p>

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

<p>These were suits in equity brought by Ferguson Kennedy, Thomas Craine, and John Lament, respectively, against J. G. Elliott. '</p>

This was a suit in equity by Charles H. Baker, as receiver of the Merchants’ National Bank of Seattle, against A. I. Beach, Mary L. Macdonald, as executrix of the last will and testament of James Reid Macdonald, deceased, and others, to enforce a liability for assessments on national bank stock.

This was a suit in equity by Charles H. Baker, as receiver of the Merchants’ National Bank of Seattle, against W. H. Beeves, Minnie Beeves, and ira Bronson, to recover an assessment on certain shares of stock in the hank.

The complainants, holders of 5,498 bonds, of $1,000 each, issued by the Seattle, Lake Shore & Eastern Railway Company, and claiming to he general unsecured creditors of the Northern Pacific Railroad Company, by virtue of the latter’s guaranty of the bonds mentioned, filed their bill setting forth the various mortgages issued by and upon the .railroad of the Northern Pacific Railroad Company, and the proceedings instituted in this court in the year 1893, to foreclose the…

. Motion to amend findings of fact by making them more specific, and by striking out certain conclusions of law' stated as findings of fact proper. The motion was made in an action at law arising under the Tucker act, hi which plaintiff seeks to recover certain deposits from the United States.

<p>Limitation on Actions — Laches.</p> <p>An action to recover money intrusted to another as attorney in fad cannot be maintained 12 years after the cause of action accrued, on a complaint which does not show a cause of action based on an express continuing trust, not subject to the statute of limitations.</p>

This was an action by Charles Godfrey Gunther against the Liverpool & London & Globe Insurance Company upon a policy of fire insurance on an hotel. The jury returned a verdict for plaintiff, and defendant moved for a new trial.

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

This was an action at law by Catherine Hannon against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company to recover damages for personal injuries. In the circuit court judgment was rendered for the plaintiff, and the defendant sued out this writ of error.

<p>JlETO&MBNT ON RlOIAND — REPUGNANCY TO MANDATE.</p> <p>A motion for mandamus from an appellate court to correct an alleged disobedience of its mandate will be denied where the record of the case on appeal does not constitute the entire record in the lower court, and does not present important facts necessary to the determination of the question of repugnancy between the mandate and the order made under it. In such case the proper remedy is an appeal.</p>

This was an action for damages for breach of a contract of sale. In the circuit court there was a verdict and judgment for plaintiffs, and the defendant sued out this writ of error.

This was an action at law by tbe Safe-Deposit & Trust Company of Baltimore against the city of Anniston to recover on interest coupons of municipal bonds. There was judgment for plaintiff in the court below, and the defendant sued out this writ of error.

<p>1. DrSBAEMENT OF ATTORNEY — LlBEL IX BRIEF — POWER OF CIRCUIT COURT. _</p> <p>_ An attorney who writes, flies, and publishes in the court of appeals a brief containing that which amounts, in law, 1o a false, scandalous, and malicious libel upon presiding- judges of the circuit court, may he disbarred therefor lay the circuit court.</p> <p>3„ Same — Reaffirming Libel — Adequate Punishment.</p> <p>Where an attorney, in his official character, has written and published a false, scandalous, anil malicious libel upon a judge of the court of which he is a sworn officer, and, when called upon to show cause why lie slioiild not be disbarred therefor, reaffirms such libel both in written answer and oral argument, there is no imnishnient the court can inflict that will afford an adequate remedy but disbarment.</p> <p>3. Same — State and Federal Courts.</p> <p>When the highest court of a state has revoked an attorney’s license to practice, it ought to follow, as a matter of course, that his license should he revoked in the federal courts of that state.</p>

This was an appeal by Marshall Field & Co. from a decision of the board of general appraisers reversing the decision of the collector of customs at the port of Chicago in respect to the classification for duty of certain imported merchandise. The circuit court affirmed the classification adopted by the board of general appraisers, and the United States thereupon appealed to this court.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>This was a suit in equity by the Johnson Electric Service Company against the Powers Regulator Company for alleged infringement of a patent. The circuit court found that there was no infringement, and dismissed the bill for want of equity. See 81 Fed. 626, for the opinion of the circuit court, which contains a full description of the two devices. From this decree the complainant has appealed.</p>

<p>This was a suit in equity by the Ballou Shoe-Machine Company against C. M. Dizer and others for alleged infringement of a patent. The cause was heard on a motion for preliminary injunction.</p>

<p>Jurisdiction — ■Foreclosure of Mortgage — Receiver.</p> <p>Under a decree of foreclosure of a mortgage, where an order of sale has been made and the sale advertised, the court acquires jurisdiction and possession, to the exclusion of any other court; and the appointment of a receiver for said property by another court does not divest jurisdiction and stop the sale.</p>

<p>Jurisdiction op Federal Court — Federal Question — Mining Claims.</p> <p>Where a controversy between owners of adjoining mining claims as to the right of one to follow the vein outside of the vertical line of his claim clearly depends upon a question of fact under the statutes as finally construed by the supreme court, such controversy no longer presents a federal question.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was an action at law by Roswell C. Nichols against the Fitch-burg Railroad Company to recover damages for personal injuries received by him while in charge of cattle on a train. In the circuit court the verdict and judgment were given for the plaintiff, and the defendant sued out this writ of error. The case has been heard on a motion by plaintiff in error to amend the original writ in respect to the allegation of plaintiff’s citizenship.</p>

This is an action by the state of Indiana to recover a penalty for violation' of the statute malting it unlawful to permit the flow of gas or oil from a well into the open air. Defendants removed the case from the circuit court of Delaware county, and plaintiff moved to remand. On January 3, 1898, the plaintiff filed its complaint against the defendants in the circuit court of Delaware county, Ind.

<p>Transcript on Appeal — Certification.</p> <p>A certificate merely stating that the papers contained in the transcript are correct copies, without showing that the transcript is a complete one, or that the parties by stipulation designated the papers to be included, or that the clerk was guided by appellant’s solicitor, is insufficient, and the appeal will be dismissed on motion.</p>

<p>1. Removal of Causes — Joinder of Defendants — Motive.</p> <p>If a person has a cause of action on which he may properly sue either one or two parties, and he chooses to sue both, he may do so, though his motive in joining them is to prevent a removal to a federal court.</p> <p>2. Same — Irresponsible Defendant.</p> <p>A defendant who is legally liable together with another, and whose presence defeats the right of removal, is neither a nominal nor sham party merely because he is pecuniarily irresponsible, so that a judgment against him would be of.no value.</p> <p>3. Same — Separable Controversy.</p> <p>An action for damages against a railroad company incorporated by another state, and one of its section foremen, who is a citizen of the same state with plaintiff, charging them jointly with setting out a fire on the railroad right of way to clear it of dry grass and weeds, and negligently permitting it to spread to plaintiff’s premises, does not disclose a separable controversy, which would enable the railroad company to remove the cause.</p>

<p>1. Injunction — Void nob Uncertainty — Contempt.</p> <p>A decree requiring the several defendants, in diverting water for their respective branches, to allow a sufficient quantity to flow down the natural channel, so that after a certain third person, who is not a party, shall have “used all the water to which he is entitled under his water right, there shall be left remaining- * * * sufficient water to carry and conduct 150 inches, statutory measurement,” to the head gate of complainant, is void for uncertainty, so that contempt proceedings cannot be based upon it.</p> <p>2. Injunction.</p> <p>A decree requiring defendants to allow a sufficient quantity of water to flow in a stream, so that after a person named, who is not a party, shall have diverted all the water to which he is entitled, there shall be left enough to carry “150 inches, statutory measurement,” to complainant's premises, is void for uncertainty, so that no contempt can be based on its alleged violation.</p>

<p>Contracts of Foreign Corporations — Negotiable Paper — Mortgages.</p> <p>A state statute declaring it unlawful for any foreign corporation to do business or acquire property in the state without first complying with the provisions of the statute, and imposing a fine for violation thereof (Acts Tenn. 1891, c. 122), does not render invalid, in the hands of an innocent purchaser for value, negotiable paper taken by a foreign corporation without complying with the statute, nor render unenforceable a trust deed, securing the same, on property in the state.</p>

<p>1. Mines and Minino.</p> <p>The order in which the acts requisite to a location are done is immaterial, provided they are completed before the rights of other parties intervene.</p> <p>2. Same.</p> <p>Sufficient acts were done to constitute a valid location on a certain day. A few days later, another location was made by third parties, covering part of the claim, and this latter location was ultimately patented. In the meantime, one claiming under the original location made a discovery on the part not included in the second location, placed a discovery stake there, and staked off what remained of the claim, but there was no notice of the new location. Eeld that, as no rights of third parties had intervened as to this part of the claim, the location was valid.</p> <p>8. Same.</p> <p>If one who discovers a vein on land subject to location unwittingly places one or more of his stakes on land already claimed, this does not avoid his own location as to land not included in such adjoining claim.</p>

<p>1. Landlord and Tenant — Lease—Lten eor Rent.</p> <p>An instrument which conveys to the grantee the “exclusive right to enter upon lands,” and “to dig and mine phosphate rock and other minerals to any extent he may require, and carry away and sell for his own use,” for a term of five years, on a certain royalty, is a lease, and not a license to mine. Tire lessor fias the right of a landlord, and ma.y distrain for rent.</p> <p>2. Same — Property in Hands oe Receiver.</p> <p>Phosphate rock mined by the lessee having been placed in the hands of a receiver before the right to distrain fot rent was exercised, the statute of Anne, in 'force in South Carolina (section 1!M3, Rev. St.), providing that no goods sold under execution can be removed from leased premises, unless the parly removing pay to the amount of one year’s rent, applies, and the proceeds of the rock .-are subjected to the payment of the rent.</p> <p>3. Same — Contract with Lessee.</p> <p>A contract, not under seal and not recorded, entered into with one who is a lessee for a term of years, of phosphate lauds, to mine rock at a certain price xier ton, is not an assignment or a sublease. The contractor is not the owner of the rock mined, and cannot defeat the landlord’s lien.</p> <p>4. Same — Laborer’s Líen.</p> <p>An "independent .contractor to mine phosphate rock at a certain price per ton, employing others to do the work, is not a laborer or employe entitled to the benefit of the South Carolina act of March 5, 1897, to provide for laborer’s liens.</p>

<p>Landlord and Tenant — Lien for Rent — Statute of Anne.</p> <p>Under the statute of Anne, in force in South Carolina (section 1943), which provides that goods taken on execution shall not be removed from leased premises until rent due at the time of the taking of the goods in execution is paid, the landlord has a lien for rent due at the time of the appointment of a receiver for the property of a lessee, but not for rent which subsequently accrued.</p>

<p>Damages — Liability of Employer — Negligence.</p> <p>Where a workman is employed to assist in pushing empty coal cars to the desired position for loading coal, and also, after an empty car has been started down the incline towards the dump, to go ahead to a stationary engine, and start it by the time the car comes under the chute, a direction from the foreman to “Go ahead, and start the engine” does not justify him in passing in front of the car, when he could pass to the rear onto a platform, and so avoid the danger; and in so doing he is negligent, and cannot recover for an injury received in consequence thereof.</p>

<p>1. Mortgages — Distribution op Proceeds.</p> <p>When several notes given hy the same debtor, growing out of the same transaction, and all due and payable, are secured equally hy a mortgage, and there is a judicial foreclosure on all the notes, the proceeds of the sale should, he credited pro rata on the notes.</p> <p>2. Same — Liability op Surety.</p> <p>Though the purpose of the mortgagor and mortgagee, in getting the indorsement of two of a series of notes secured by a mortgage, is to grant additional security outside of the mortgage, the indorser not being a party to such understanding, his obligation cannot he extended hy parol evidence, but is measured hy the notes he indorsed, and he is liable only for the balance due on such notes after they have been credited with pro rata share of proceeds.</p>

This is a companion ease to the one between the same parties which has just been decided. 85 Fed. 949. It relates to another real-estate transaction in which the parties were concerned. Ira W. Burhans, the defendant in error here, brought an action against Rufus O. Jefferson, the plaintiff in error, who was the defendant below.

This proceeding was commenced by petition for a writ of mandamus, filed on April 16, 1896, after the decision of this court in the case of Coquard v. Drainage Dist., 34 U. S. App. 169, 16 C. C. A. 530, and 69 Fed. 867. The facts there stated are substantially the same as those disclosed in this record.

This case was tried upon an agreed statement of facts. Held: until after October 24, 1895. That on September 9, 1895, a meeting of the stockholders of the bank was held at the office of the bank, at which 9 shareholders were present in person, and said T. W. 'Bean, acting under similar powers of attorney, was present claiming to represent 58 other stockholders.

The complaint avers that plaintiff is a citizen of New York, and defendant a Pennsylvania corporation; also that deceased in his lifetime w;is a. citizen of New York; that hy the negligence of defendant deceased was struck by one of its engines and killed at Sunbury, in the state of Pennsylvania; that the deceased was a brother of plaintiff, and left, him surviving, five other persons named in the complaint as “next of kin”; and that the surrogate of New York duly appointed…

This was an action at law by Roswell C. Nichols against the Fitch-burg Railroad Company to recover damages for personal injuries received by him while in charge of cattle on a train. In the circuit court a verdict and judgment were rendered for the plaintiff, anil the defendant sued out this writ of error.

In. Error to the Circuit Court of the United States for the District of Minnesota.

On motion of complainants for a. rule ou Robert Middleton, formerly secretary and treasurer of said railway company, to show cause why he should not be committed for failure to obey the writ of mandamus issued in the cause. For the opinion rendered on the merits, see 82 Fed. 563.

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

<p>Habeas Corpus.</p>

This was a petition by the United States attorney for the district of Oregon for the removal of defendant, Fred Karlin, to the district of Washington, where it is alleged he is charged by affidavit with a violation of tire internal revenue laws.

<p>Customs Duties — Works of Art for Presentation to Religious Society.</p> <p>Plaintiff imported a church altar and reredos for presentation to a church in New York. It was originally designed by a leading American artist in this style of church architecture. A French artist of reputation made original designs for the angels, and impressed his personality upon the work. Held, that it is a “work of art,” within the meaning of Act Aug. 27, 1894, par. 686, and entitled to admission free of duty.</p>

This was a suit in equity by Peter Hermann Von Mumm and others against Rudolph A. Wittemann and others for infringement of a trademark and unfair competition in trade.

This was a suit in equity by the American Soda-Fountain Company against Otto Swietusch for alleged infringement of a reissued patent for an improvement in soda-water apparatus. In the circuit court the bill was dismissed for want of equity. See 75 Fed. 573, where the opinion is reported in full, together with a complete statement of the facts. From this decree the complainant has appealed.

<p>This was a suit ia equity by Louis Sacks against George Brooks, George K. Brooks, and Gardiner O. Brooks, trading as. Brooks & Go., for the alleged infringement of letters patent No. 443,199, issued December 23, 1890, to Louis Sacks and Henry Richmond, for an alleged improvement in boot or shoe lasts. This court rendered a decree for an injunction and an account, and the defendants appealed. The circuit court of appeals, on June 10, 1897, rendered a decree of reversal, and remanded the cause, with directions to dismiss the bill, but granting complainant leave to apply to the circuit court for a rehearing on the ground of newly-discovered evidence of priority of his invention to that of Dusenbury. 81 Fed. 403. The cause is now heard accordingly on complainant’s application for a rehearing on that issue.</p>

This was a suit in equity by William W. Dodge, Melville W. Mix, •and the Dodge Manufacturing Company against the Menasha Wood Split Pulley Company and others, for alleged infringement Of a patent. The circuit court made an interlocutory order granting a preliminary injunction, and the defendants have appealed therefrom.

Appeal by the claimants of the ship W. F. Babcock from a decree of the district court for the Southern district of New York in favor of the libelants in a libel for seamen’s wages. See 79 Fed. 92.

These were libels in rem against the tugs Nannie Lamberton, Fannie Pi Sheer, and Rollin II. Wilbur, to recover damage for loss of (‘¡mal boats while in tow by them. The circuit court found that the tugs were in fault, and rendered a decree for the libelants, with costs. 79 Fed. 121. The claimants of the tugs have appealed.

<p>Shipping — Limitation in Bn/r, on Lading.</p> <p>A stipulation in a hill of lading against liability for loss or damage, unless “the action in which said claim shall he sought to be enforced shall be brought within three months after said loss or damage occurs,” is forbidden by no rule of law, nor by any consideration of public policy, and, like any other term of the agreement, will be presumed to have had the full assent of both parties, and will be regarded as reasonable, unless the contrary be made apparent.</p>

This was a libel in rem by Nils E. Hindsgaul against the schooner Lyman I). Foster to recover wages, expenses, and damages for an assault alleged to have been committed upon him hy the master.

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

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

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