Volume 86 — Federal Reporter

<p>1. Appeal and Error — Refusal to Take Case from Juey.</p> <p>Where, there was testimony as to the bad condition of the road at the place where the accident occurred, and also that the accident was due to a drawhend pulling out, which was a matter of pure accident, it was not error to refuse to take the ease from the jury.</p> <p>2. JURISDICTION — CITIZENSHIP—DISCHARGE OI' RECEIVERS.</p> <p>The jurisdiction of the federal court having attached in an- action at law against the receivers of a railroad, such, jurisdiction is not lost because the ownership of the railroad subsequently passes to citizens of the same state as the plaintiff, nor by reason of an order of a court in another district discharging the receivers, especially when it expressly provides that pending- cases shall not be affected.</p> <p>3. Railroad Receiverships — Damages for Personal Injuries.</p> <p>Damage occurring- during the lime a railroad is in the hands of a receiver is part of the operating- expenses, payable out of the income, if there is any; if not, out of the corpus of the property.</p> <p>4 Limitation of Actions — Amended Petition.</p> <p>The assignment of additional specifications of negligence in an amended petition does not create a new cause of action.</p> <p>Pardee. Circuit Judge, dissenting-.</p>

This was a suit by William J. Cruikshank and others for an injunction against George E. Bidwell, collector of the port of New York, to restrain his action in respect to the importation of certain teas.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>On June 19, 1895, Sterling R. Cockrill, as receiver of the First National Bank of Little Rock, Ark., the appellant, exhibited his bill of complaint against E. J. Butler, since deceased, and the appellees Mark M. Cohn, John W. Goodwin, Nick Kupferle, P. K. Roots, M. G. Hall, Gus Blass, George H. Sanders, O. M. Taylor, William Farrell, Henry M. 'Cooper, H. G. Fleming, John M. Taylor, James Joyce, O. T. Abeles, and against Mrs. Emily M. Roots, P. K. Roots, and John McClure, as executors of Logan H. Roots, deceased, in the circuit court of the United States for the Eastern district of Arkansas. The bill charged, in substance, that the aforesaid bank was insolvent on February 1, 1893, and that Logan H. Roots was duly appointed receiver thereof by the comptroller of the currency; that Roots subsequently died, and that the complainant had been duly appointed receiver in his place and stead; that from June 2, 1890, until February 1, 1893, E. J. Butler and certain of the above-named appellees, to wit, John W. Goodwin, Gus Blass, and Nick Kupferle, were members of the board of directors of the aforesaid bank, and that during said period Logan H. Roots, now deceased, and the other appellees above named, served respectively at various times as members of the directory; that on May 23, 1890, the bank had a capital stock of $250,000, and was tiien solvent and prosperous; that on June 19, 1890, H. G. Allis was elected president of the bank, in place of Logan H. Roots, who had previously served in that capacity; and that thereafter, under the direction and guidance of said Allis, and with the knowledge and consent of the aforesaid directors, the bank entered upon and pursued a business policy which soon impaired its capital, and ultimately led to its insolvency. The particular derelictions of duty complained of in the bill consisted in the charge that during their respective periods of service the above-named directors of said bank, in violation of section 5200, Rev. St. U. S., knowingly suffered and permitted loans to be made in excess of one-tenth of the amount of the capital of said bank actually paid in, to each of the following persons and corporations; that is to say, to H. G. Allis, the president of the bank; to the City Electric Street-Railway Company, a corporation of which said Allis was'president; to the McCarthy-Joyce Company, a corporation in which said Allis was interested; and to the Press Printing Company, a corporation, whose stock was principally owned by one George R. Brown, who was an intimate friend and business associate of said Allis. It was also alleged in the bill that by reason of such illegal and excessive loans to irresponsible parties the funds of the bank were dissipated and lost, and that it was thereby rendered insolvent. It was further charged, in substance, that on January 1, 1892, July 1, 1892, and on January 10, 1893, after the capital of the bank had become seriously impaired, so that it could not lawfully pay dividends, the directors above named nevertheless declared and paid a dividend of 4 per cent, at each of said dates, the total amount so paid being $60,000, and that the aforesaid directors, as stockholders, each received and accepted a portion of the dividends so paid. The bill also showed that the comptroller of the currency had caused an assessment of 02 per cent., to be levied on the shareholders of the bank, and that such assessment, together with all of the bank’s other assets, would be insufficient to pay its liabilities. The appellees above named, who were the defendants below, demurred to the bill for the following reasons: First, that it disclosed no equity; second, because it did not appear that the comptroller of the currency liad procured a forfeiture of the charter of the bank, pursuant to section 523S) of the Revises! Statutes of the United Hiatos; third, because the bill was uncertain, indoliuile, and insufficient in its allegations, and did not show what wrongs complained of had been committed by che respective defendants; and, fourth, because the action was barred by the slatute of limitations of the state of Arkansas. The circuit court held that the first three grounds of demurrer were untenable, but that the fourth ground was well taken. If accordingly dismissed Hie hill, upon the assumption that the action was barred by limitation. The case comes to this court on appeal from such decree.</p>

On the llth day of March, 1886, appellee, Paul F. Beardsley, began suit in equity against John I). Beardsley, appellant, and the Arkansas & Louisiana, Railway Company, in the United States circuit court for the Eastern district of Arkansas, the general object of which was to obtain an accounting between the Beardsleys, and to compel the transfer to Paul F. Beardsley of certain shares of stock claimed by him in the said railway company.

<p>1. Construction of Trust — Conditional Remainder.</p> <p>Testator left Ms estate in trust for his daughter during her life, the will providing that at her death the trustee should convey and pay over certain estates, and the one-half part of the residue of the estate then in their hands to his eldest son “if lie shall have arrived at the age of twenty-one years, and have complied with the conditions hereinafter expressed.” The conditions referred to were that-he “shall, within five years after being notified of my decease, have his permanent residence in the United States, and adopt the name of H." The will further provided: “The other half part of all the rest, residue,” etc., “then in the hands of said trustees, I hereby order and direct said trustees to pa.v over and convey in fee simple to the other children of my said daughter, living at, the time of her decease.” //eld, that testator fixed (he death of his daughter as the time for the division of his estate, and at that time a remainder will vest in her eldest son, contingent upon the previous performance of the conditions named, and a remainder will vest in the other children, absolutely without condition.</p> <p>3. Remaindeks — Perpetuities—Executory Devise.</p> <p>Where, as to a devise over, a testator has expressed with clearness one limitation to lake effect at a period far within the lawful limits, it will he held good as a remainder, though an alternative disposition he objectionable as an executory devise, on the ground of remoteness.</p> <p>8. Equity Pleadings — Alternative Relief — Multifariousnbss.</p> <p>A bill is hot multifarious because it alleges two alternative grounds upon which complainants may be entitled to an estate; nor because some of the defendants may not be interested in all the questions that may arise in the suit.</p>

Suit in equity to enjoin the city of Oakland and its officers from entering, upon the lands of the complainant, and from using, or attempting to use, the same as a public street, and to quiet the title of the complainant to the land as against the defendants. Upon the filing of the bill, an order .to show cause was issued, and a temporary restraining order granted, which was subsequently continued until the final disposition of the case.

<p>1. Mortgage Foreclosures — Inventions—Mortgagor's Trustee in Insolvency.</p> <p>A trustee in insolvency of a mortgagor corporation, who is appointed after institution of foreclosure proceedings and after the corporation has answered admitting the allegations of the bill, is not entitled to intervene and file an answer except in the place of the corporation and as representing its rights alone; nor can he apply for the removal of a receiver appointed in the foreclosure proceedings except in the right of the defendant company.</p> <p>S. Same — Application for Possession of Property.</p> <p>Such a trustee, if he claims a surrender of personal or mixed property held by a receiver appointed in the foreclosure proceedings, to whom it was voluntarily surrendered by the mortgagor, can assert no greater right to possession thereof than he would have had as against the mortgagee in possession if the property had been surrendered to him instead of to the receiver. For the purposes of such an application, the receiver’s possession is the possession of the mortgagee.</p> <p>8. Same — Rights of Creditors.</p> <p>Creditors of an insolvent mortgagor company which has surrendered personal property to a receiver appointed in foreclosure proceedings cannot intervene and become parties in order to assert superior rights thereto, but may be heard at the proper time on the question of superior right.</p>

<p>1. MORTGAGES — REAL ESTATE! HELD AS COLLATERAL.</p> <p>In an agreement between a debtor and his crédito)', the amount of the indebtedness was stated, and the debí or agreed to pay the same in ins1 aliments at fixed times, and it was provided that upon such payment real and personal property which had been previously owned by him, and of which he had or was to have possession, was to be reconveyed to him. In a suit brought by -him after paying some of the installments, and while in default as to the residue, for relief against the strictness of the agreement, held, that the transaction amounted in substance to a mortgage, which might be redeemed, “though the law day had passed.</p> <p>2. COMI’ROMISE AND SETTLEMENT — ACCOUNTING.</p> <p>It was contended by defendants that the agreement was a compromise, and was conclusive as to the amount due. It appeared, however, that its itemized statement of the debt was made up substantially according to the defendants’ figures, about which they had, and plaintiff had not, knowledge in detail, and it did not appear that any substantial compromise had been effected. Held, that the case should go to a master to ascertain various claims necessary to fix the sum due in equity.</p>

<p>1. Waters and Water Courses — Abandonment of Water Rights.</p> <p>A placer location ex vi termini imports an appropriation oi' all waters covered by It, so far ns such waters are necessary for working the claim, especially when the location covers Both banks of the stream, and there can be no abandonment of the water as distinguished from the land or of the land as distinguished from the water.</p> <p>2. Same.</p> <p>Where a patent issues for a mining claim, if the owner finds mining unprofitable, and holds the property for sale as a mill site, or a site for an electric power plant or some manufacturing establishment, he does not thereby lose the water right which he had as a miner.</p> <p>8. Same.</p> <p>Article. 16, § 6, Const. Colo., which provides that “the right to divert unappropriated waters of any natural stream for beneficial uses shall never be denied,” applies only to unappropriated waters, and not to a case where, by the location of a placer claim, the water has been appropriated.</p> <p>4. Same.</p> <p>Nothing in the constitution of Colorado, or in the law relating to irrigation, modifies or changes the rule of common law that for manufacturing, mining, or mechanical purposes each riparian owner may use the waters of running streams on his own premises, allowing such waters to go down to subjacent owners in their natural channel.</p>

<p>L Jurisdiction — Foreign Corporation — Action against Stockhoider.</p> <p>A suit in equity may be maintained by a creditor of a corporation against a stockholder only in the courts of the state in which the corporation is created.</p> <p>2. Action against Stockholder — Demurrer.</p> <p>In an action by a creditor of an insolvent Ohio corporation against a stockholder to enforce his liability under the laws of Ohio, the corporation is a necessary party defendant, and a demurrer on that ground will be sustained.</p>

<p>1. National Banks — Increase of Stock — Conclusiveness of Comptroller’s Certificate.</p> <p>The certificate of the comptroller of the currency, approving an increase of the capital stock of a national bank, is conclusive of the existence of the facts authorizing such certificate, and a subscriber to the stock cannot question its validity.</p> <p>2. Same — Stockholders—Estoppel to Question Validity of Stock.</p> <p>Subscribers to a duly-authorized increased issue of stock by a national bank, who accept certificates therefor, vote the stock by proxy, and take dividends thereon, cannot question the validity of such stock, as against the receiver, after the bank has become insolvent.</p>

This was a suit in equity by the Northern Pacific Railway Company against J. A. Soderberg, to enjoin him from working a granite quarry on certain lands claimed by the complainant.

<p>1. Appeal and Error — Finding of Fact.</p> <p>Where the trial court has considered conflicting evidence, and made its finding and decree thereon, they must be taken to be presumptively correct, and, unless an obvious error lias intervened in the application of the law or an important mistake has been made in the consideration of the evidence, the decree should he permitted to stand.</p> <p>2. Deeds — Mentad Capacity.</p> <p>In determining a question of menial capacity to execute a deed, the question is not whether the grantor’s mental powers were impaired, or whether she had ordinary capacity to do business, hut whether she had any — the smallest —eapaeiiy to understand whaf she was doing, and to decide intelligently whether or not she would do it.</p> <p>3. Same — EvrDEXOE.</p> <p>A woman was paralyzed for eight years prior to her death, and during that time was unable to sign her name, but it was signed by her daughter or other person, and her acknowledgments taken to 34 conveyances of real estate. Her husband and children treated her as though she was competent to make deeds, 10 different magistrates took her acknowledgments to conveyances, and all who knew her treated her as sane. A decree of foreclosure of a mortgage was resisted on the ground that she was mentally incapable of understanding or executing it.. Many witnesses testify that her mental capacity was not greater than that of a child three or four years old, and that she could not transact any business whatever. Held, that the legal presumption being that she was sane and capable, and all who knew her having so treated her, the decree of the court that she was mentally capable simply gives legal effect, after her death, to the existence of a fact which all seem to have conceded during her life, and such decree should not be disturbed.</p>

At Law. Tried by the court. These actions are brought against the defendants who were stockholders of the' Traders’ Bank of Tacoma, Wash., to enforce a liability created by the law of that state making them individually responsible equally and ratably to the extent of their stock for all debts of the bank while they remained stockholders. The plaintiff is a citizen of Washington residing at Tacoma. The defendants are citizens of New York residing at Rochester.

<p>1. Mineral Claim — Location Marks — Sufficiency.</p> <p>Location of a mineral claim, parallelogram in shape, -was marked upon the ground by placing at each corner stakes about 4 feet high, and similar stakes at the discovery point, and at points upon the side lines. On the discovery stake, and upon a tree about 20 feet therefrom, were placed notices of location, containing the name of the claim and its description, date of location, and the names of the locators. Reid, that the claim was sufficiently indicated upon the ground, though all of the stakes were not marked with the name of the claim.</p> <p>2. Same — Obliteration op Marks.</p> <p>When a mineral claim is once properly marked upon the ground, the rights of the locators are not affected by the subsequent obliteration of the marks, or the removal of the notice without their fault.</p> <p>8. Same — Record—Sufficiency of Description.</p> <p>A recorded notice of location, in its description of a claim, erroneously referred to the “southeasterly” end of another claim, when the claim had no such boundary, and described' a distance of 400 feet as “4,” and gave the courses of a certain boundary line as “northerly” and “southerly,” when the courses of such line were not true north and south. The notice correctly described the location with reference to a well-established line of another claim, and with the aid of the location stakes the lines of the claim could be easily ascertained, by applying the description of the record to the stakes and monuments. Reid, that the recorded description was sufficient.</p> <p>4. Same — Prior Location — Presumption of Discovery.</p> <p>Proof of a record of a prior location, and the marking of it on the ground, will not defeat a subsequent location, in the absence of proof of a discovery by the prior locators. The record and the marking are not sufficient to authorize the court to presume a discovery.</p>

<p>Insurance — Intentional Injury.</p> <p>Where a policy of .insurance provides, “The member hereby agrees that the Travelers’ Protective Association shall not he liable for death when caused by intentional injuries inflicted by the member or any other person,” and the proof shows the insured was murdered, his death was caused by intentional injuries, and no recovery can be had.</p>

This was an action at law by Henry Smith against J. G. & I. N. Day and the Dalles, Portland & Astoria Navigation Company to recover damages for personal injuries. The jury returned a verdict for defendants, and the plaintiff now moves for a new trial.

<p>Indian Agencies — Action by United States — Allowance oe Credits.</p> <p>In an action on the bond of an Indian agent, where the agent (lied near the close of the quarter, credit may be allowed for vouchers which have not been presented to the accounting officers of the treasury; the death of the agent bringing such vouchers within the last clause of Ttev. St. U. S. 8 951, relating to vouchers not presented by reason of “absence from the United States or some unavoidable accident.”</p>

<p>1. Railroads — Mechanic's Lien — Oirro Railroad Luck Law — Bridges.</p> <p>A lien upon a railroad bridge; in Ohio for work performed and materia] furnished cannot be; obtained under the mechanic's lien law, but must be obtained under the act of April 10, 1884. known as the “Railroad Lien La.w,” under which the lien must be filed within 40 days after the account is closed.</p> <p>2. Same.</p> <p>A railroad bridge becomes a part of the permanent structure of a railroad, and a mechanic’s lien cannot be maintained for work performed and material furnished for a bridge as against liens created by prior mortgages on the railroad.</p> <p>8. Same — Priority of Claim fok Necessary Repairs.</p> <p>Where a railroad bridge became so defective that it was unsafe to run trains over it, and repairs were necessary to keep the railroad a going' concern, those who performed the work and furnished the material necessary in repairing the bridge are entitled, on the insolvency of the company and the appointment of a receiver, to priority over the mortgage bonds, without showing any diversion of income, and such priority may be allowed, though more Ilian six months elapsed between the time the work was done and the appointment of a receiver.</p> <p>4. Same.</p> <p>Such priority is allowed as against liens created by mortgages placed on different branches of the consolidated road when they were independent corporations.</p> <p>5. Same — Original Construction.</p> <p>The term “original con si ruction” (as distinguished from repairs) has a technical meaning, and is that construction of bridges, grades, culverts, rails, ties, docks, etc., that is necessary to be done before the road can be opened, not such structures as are intended to replace old and worn out counterparts.</p>

<p>1. United States Maushals — Pees—Attendance bepoke Commissioned.</p> <p>A marshal is entitled to fees for attendance by deputy at examinations before a commissioner, though Uie deputy was paid for attendance on the same day on the district or circuit courts. 78 Fed. (ill, affirmed.</p> <p>2. Same — Ketubns op Nihil Hajíet.</p> <p>A marshal having made a charge of 40 cents each for returns of nihil habet, and it appearing that in the state practice two such returns were treated as equal to a service, helé, that the charge should be allowed. ¶8 Fed. '614, affirmed.</p> <p>8. Same — Attendance on Sunday.</p> <p>The marshal is entitled to a fee for necessary attendance on court on Sunday, though the judge was not actually present. 78 Fed. 614, affirmed.</p> <p>4. Same — Compensation non Guabds.</p> <p>The marshal is entitled to he reimbursed, as a contingent expense, for money actually paid for guards for prisoners attending court. 78 Fed. 614, affirmed.</p> <p>5. Same — -Mileage.</p> <p>The marshal is not entitled to mileage in going to serve warrants of removal and commitment, where he has been paid 10 cents per mile for transportation of the prisoner on the same warrant at the same time. 78 Fed. 614, reversed.</p> <p>6. Same — Subvino Wabbants op Commitment.</p> <p>The marshal is not entitled to fees for serving warrants of commitment. 78 Fed. 614, reversed.</p>

This was an action by John W. Jacobus against the United States. The cause was heard on motion for leave to amend the answer by setting up a counterclaim.

This was an action bj C. M. Patterson against D. P. Thompson to enforce an alleged personal liability under the Oregon statute, on the ground that defendant, as a director in a savings bank, had joined in declaring and paying a dividend while the corporation was insolvent.

<p>1. Mines and Mining — Mill-Site Claim — Ejectment—Evidence.</p> <p>' In ejectment to recover a mill-site location connected with a mining claim, to which no patent has issued, where complainant relies upon his own prior-possession and an ouster by defendant, a receiver’s certificate to the plaintiff for the purchase money of the land is admissible in evidence, not as showing title, but as tending to show, in connection with other evidence, the good, faith of the plaintiff, pursuant to its location and survey. 79 Fed. 886, affirmed.</p> <p>2. Same — Ejectment—Sufficiency of Possession.</p> <p>It is a sufficient possession of a mill-site claim to maintain ejectment therefor that its comers are marked with painted posts, as is the custom in locating such mill sites, and that the claimant had a house and stable thereon, and had constructed tunnels to increase the flow of springs, and built a wagon road to his mines, thus indicating a present and continuous use. 79-Fed. 886, affirmed.</p>

<p>This was an action by Francis O’Donnell against Thomas Nee for slander. The case was heard on demurrer to the declaration.</p>

<p>Attachment — Stock in Foreign Corporation.</p> <p>In Massachusetts, there being no statute authorizing it, there can be no attachment o£ shares of stock in a foreign corporation owned by a nonresident defendant.</p> <p>This was an action, commenced by attachment, by George M. Fin-ney against William A. Xevills and others. The case was heard on a motion to discharge the trustee.</p>

<p>1. Courts — Following State Courts.</p> <p>Where the supreme court of Missouri held that an estate passed by a will is a statutory estate, and that the effort oí the testator to further control the estate was in contravention of the statutes of Missouri, the federal court will follow such decision.</p> <p>3. Adverse Possession — Limitation of Actions.</p> <p>In Missouri, a defendant who has held open, notorious, exclusive, continuous, and adverse possession for more than 10 years after the plaintiff became of age is held to -have acquired title by virtue of the statute of limitations.</p>

<p>1. Contract of Sale — Action for Breach — Plea of Performance.</p> <p>An allegation of a tender of hops of an average of the best product of a crop produced upon certain premises, and that defendants exerted their utmost to produce a crop “of choice quality, in sound condition, of good color, and fully matured,” does not show a compliance with a contract to deliver, absolutely, hops of that quality and condition, to be produced upon said premises.</p> <p>2. Same — Demand before Suit.</p> <p>A contract of sale subject to inspection provided for the repayment, on demand, of money advanced, if the goods, when delivered, were not accepted because not of the quality agreed upon. Goods were tendered, and on that ground refused, and the seller insisted that he had fully performed the contract. The purchaser sued for the alleged breach. B.eld, that an answer that no demand had been made for the repayment of the money advanced was insufficient.</p> <p>8. Same — Performance of Contract — Plea of Tender.</p> <p>A plea of tender of the money advanced, with interest thereon at the agreed rate, is a sufficient answer to a complaint for failure to comply with a contract to repay money advanced in case goods sold subject to inspection were not accepted.</p>

. In Error to tbe Circuit Court of tbe United States for tbe Northern Division of tbe Northern District of Illinois. . This action was brought by the plaintiff in error, S. 0. Sladden, as executor, to recover the amount of a policy of insurance upon the life of his wife, Mary, to whose executors, administrators, or assigns the policy had been made payable.

<p>1. Criminal Law — Murder—Declarations.</p> <p>Evidence as to the declaration of the defendant, made three months prior to the homicide, that he “intended to kill the next deputy marshal that arrested him,” was improperly admitted, as too remote and general to have any , legitimate hearing on the issue to be tried.</p> <p>:2. Same.</p> <p>Where conversations and declarations of "the accused, after arrest, forming no part of the res gestee, and not admissible in his behalf, but admissible against him, are proved by the United States, the accused is entitled to have the full conversation or conversations given in evidence.</p> <p>8. Same — Instructions—Abandonment of Quarrel.</p> <p>Where there is evidence tending to show that the accused, after provoking' a quarrel with deceased, withdrew therefrom, and was thereafter ¿red upon without warning by deceased, whom he then shot and killed, it is the duty of the court to instruct the jury as to the effect of such withdrawal, and its refusal to do so when requested is reversible error.</p> <p>4. Same — Jurisdiction—Averments in Indictment.</p> <p>Where an indictment for murder in the Chickasaw Nation, Ind. T., avers that both deceased and accused were white men, proof that deceased was a white man establishes the jurisdiction, and the averment as to citizenship of the accused is surplusage.</p> <p>Swayne, District Judge, dissenting.</p>

<p>1. CONSPIRACY — INDIC'JMIINT—SUFFICIENCY OF A VB11MF.NTS.</p> <p>The avorinent, in an indictment; under Rev. St. § 5-MO, that defendants conspired to commit the “offense of corruptly endeavoring to influence a petit jury of the circuit court of the United States for the district of Oregon in the discharge of its duty,” is insufficient, because it omits any averment of facts constituting the offense for which the conspiracy was formed, by which it can be identified.</p> <p>2. Same.</p> <p>An allegation in such an indictment, that the defendants intended to influence the jury to return a large verdict in a case brought by the United States to condemn a right of way is insufficient, in failing to state facts showing that the effect of what was intended would hare been to defraud the United States.</p>

This was an application for a writ of habeas corpus by Sofia Monaco and others, who have been refused a right to land in this country by the immigration or customs officers.

<p>This was an appeal from a decision of the board of general appraisers sustaining the action of the collector of the port of New York in the classification for duty of certain goods imported by the appellants, Worthington, Smith & Co.</p>

This was an appeal by Hermann Boker & Oo. from a decision of the board of general appraisers affirming the action of the collector of the port of New York in respect to the classification for duty of certain nickel alloy in the form of rods, sheets, and wire.

This was an appeal from a decision of the board of general appraisers affirming the action of the collector of the port of New York in respect to the classification for duty of certain goods imported by Meyer & Lange, the appellants.

<p>Custom Duties — Iyoby.</p> <p>(Toss sections, 2-2% inches long, sawed from the solid portion of ivory tusks, with the outer covering or hark left on, and generally known in trade as “billiard-ball blocks” and “logs,” were free of duty, under paragraph 519 of the tariff act of 1891, as “ivory sawed or cut into logs, but not otherwise manufactured,” and were not subject to a duty of 85 per cent., under paragraph 354 of the same act, as “manufactures of ivory not otherwise provided for.”</p>

<p>1. Copyright and Invention — Transfer—Rescission of Contract.</p> <p>Defendant engaged his services to plaintiff for a period of 10 years, as an author and inventor, and stipulated that the property in his productions, including his time and services,'should belong exclusively to plaintiff, in consideration of an annual salary of $5,000, and a proportion of profits in excess of certain amounts. Held, that a play written by defendant, and a patent procured by him and transferred to plaintiff, became the absolute property of the plaintiff, and that changing the rates of admission, and omitting the name of the author from the announcements and advertisements, did not justify him in departing from the contract, and himself using the play.</p> <p>2. Same — Profits.</p> <p>Under a contract which provides that the product and income from the intellectual and physical labor and skill of an author and inventor shall belong absolutely to plaintiff, and that the author and inventor shall be paid a certain proportion of cash earnings or profits above a certain amount, a play and patent produced during the existence of the contract are not to be considered as profits, while earnings invested in a theater are to be so considered and accounted for.</p>

<p>1. Patents — Electric Light Fixtures.</p> <p>The Stieringer reissue, No. 11,478 (original No. 259,235), for an electrical fixture, the gist of which consists in making use of metallic gas fixtures by introducing insulated conducting wires concealed within the fixture and capable of carrying the electric current, in supporting the fixtures by the gas pipes, and in placing a joint having metallic couplings and insulating material between the fixture and the gas pipe, so as to secure insulation from the grounded gas pipe, covers a patentable invention.</p> <p>3. Sake — Prior Inventions.</p> <p>Claim 1, Stieringer reissue, No. 11,478 (original No. 259,235), for electric light fixtures, was not anticipated by Edison patent No. 248,420, or other patents, nor by the “Ferryboat” fixture used in the Pennsylvania Railroad boat Jersey City.</p> <p>8. Same — Reissue—Laches.</p> <p>■Where a patent was obtained June 6, 1882, held void by the circuit court June 19, 1894, and by the circuit court of appeals October 22, 1894, a reissue, dated March 11, 1895, is held, not void by reason of lapse of time after the original was issued.</p>

The bill is to restrain the infringement of letters patent No. 389,510, issued to James A. Hinson for “improvements in car couplers.” The complainant is the owner of letters patent by assignment from Hinson.

This was a suit in equity by the Westinghouse Air-Brake Company against the Great Northern Railway Company and others for an infringement of a patent for air brakes. The cause was heard on a motion for preliminary injunction.

<p>This was a suit in equity by the Blaisdell Paper Pencil Company against the Eagle Pencil Company for infringement of a patent.</p>

This was a suit in equity by the Clinton Wire-Cloth Company against the Hendrick Manufacturing Company, Limited, for alleged infringement of a patent for a revoluble coa,l screen. The circuit court dismissed the bill on the ground that the patent was void for want of invention (78 Fed. 632), and the complainant has appealed.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a suit in equity by the Campbell Machine Company against the Eppler Welt Machine Company for alleged infringement of the nineteenth claim of letters patent No. 253,156, granted January 31, 1882, and of the first claim of patent No. 374,936, granted January 31, 1882, hoth to the complainant, as assignee of D. H. Campbell, for improvements in wax-thread sewing machines. The circuit court found that the first-mentioned patent was valid, and had been infringed by defendant as to the claim in issue, and that the first claim of the second patent was invalid. 83 Fed. 208. From this decree the defendant has appealed.</p>

This was a suit in equity by the Safeguard Account Company against Edward F. Wellington for alleged infringement of letters patent No. 393,506 and 393,507, issued to John W. Horne for blank books.

This was a suit in equity by the A. B. Dick Company against the Belke & Wagner Company for the alleged infringement of a patent for an improvement in inks.

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

<p>1. Shipping — Carriage op Goods — Date op Sailing.</p> <p>A cargo of nitrate of soda having been purchased to be shipped on a sailing vessel to sail in November, tlie purchaser refused to receive it, on the ground that the ship did not sail in November. The proofs showed that on November 29th, after loading, the vessel broke moorings, took a pilot, and went to a place known as the “starting ground,” but did not actually depart until December 1st. There was a conflict of evidence as to whether the master intended to depart on the 29th, and was prevented by lack of wind. Held, that the issue was properly submitted to tlie jury.</p> <p>2. Evidence — Ship’s Papers.</p> <p>An application by a vice consul for a permit for the vessel to depart, a bill of lading signed by the captain, a license to sail, a certificate of the customhouse official lhat the vessel had paid its tax for hospital dues, and the bill of health signed by the maritime subdelegate; the bill of lading being' identified by the mate, and the other papers being official documents under seal, executed by the Chilian authorities, and such as the laws of maritime nations generally require, and produced by the proper custodian from the proper plaee of custody, — are entitled to confidence, and should be admitted as evidence.</p>

This was a libel by Amos Stone, by Edward N. Deady, his guardian ad litem, against E. L. Murphy and George Harvey, to recover damages for personal injuries inflicted by defendants on the high seas. The cause was heard on plaintiff’s motion to require defendants to give a new stipulation.

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

<p>FEDMRAL JURISDICTION — DlVlflRRK OlTIZISNSIIIP--CONSOLIDATED CORPORATIONS»</p> <p>Where three railway corporations, organized under the laws of three; different states, are consolidated under the laws of each of the states, the cow solidated corporation is a citizen of eaeh of the states; and a citizen of one of the states cannot maintain an action in a federal court sitting in that state against the corporation on the ground of diverse citizenship.</p>

<p>1. Courts — Jurisdiction.</p> <p>Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them.</p> <p>2. Jurisdiction of Federal Courts.</p> <p>While, in determining a question of jurisdiction in courts of the United States, great care should be exercised not to entertain jurisdiction upon too doubtful ground, yet those courts have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.</p> <p>8. Same.</p> <p>In that class of cases in which a federal question is involved, and on which jurisdiction in the courts of the United States depends, the character of the question is the same whether the jurisdiction exercised is appellate, original, or by removal, the jurisdiction in either form depending upon the constitutional grant of power.</p> <p>4. Same — Supreme and Circuit Courts.</p> <p>From this principle it follows that decisions of the supreme court of the United States in cases brought before it from the circuit courts, and those on writ of error to the highest court of a state, are equally instructive in determining when there is a federal question such as supports the original jurisdiction of the circuit court as being a suit “arising under the constitution or Ian'S of the United Slates, or iron ties made, or which shah be made, under their authority” (excluding those which grow out of “a commission held or authority exercised under the United States”).</p> <p>5. Same.</p> <p>Whether a suit is one that arises under the constitution or laws of the United States is determined by the questions involved. If from them it appears that its correct decision depends upon the construction of either, then the ease is one arising under the constitution or laws of the United States.</p> <p>6. Same---Question of Jurisdiction.</p> <p>There is a clear distinction between the existence of a federal question, for the purpose of jurisdiction, and the actual decision of that question on its merits. Tlie jurisdiction of tlie federal courts dees not depend upon the validity of (he claim set up under the constitution or laws of the United States, but upon the fact that the claim involves a real and substantial dispute or controversy in the suit. ,</p> <p>7. Fourteenth Amendment — Execution of State Statute.</p> <p>State action, to which the prohibitions of the fourteenth amendment to the constitution of tlie United States extend, is not limited to a legislative enactment, as it, comes from the hands of the legislature, but extends to all instrumentalities and agencies officially employed in the execution of the law down to tlie point where the personal and property rights of the citizen are touched.</p> <p>8. Same — Equal Protection of the Laws.</p> <p>What constitutes a. denial of the “equal protection of the laws” depends, in a. large measure, upon what rights have been conferred or protection extended under the constitution and laws of tlie particular state in which the question arises.</p> <p>9. Same — Oppressive Discrimination.</p> <p>AVlicn a state itself undertakes to deal with its citizens by legislation, it may not single out a class of citizens, and subject; that class to oppressive discrimination, especially in respect to those rights so important as to be protected by constitutional guaranty.</p> <p>10. Same.</p> <p>Wliile it may be true that the proposition that a tax statute, or a tax laid under a statute, is in violation of the constitution of the state, is not of itself necessarily sufficient to constitute a violation of Const. U. S. Amend. It, yet when, in addition, the statute results in an arbitrary and oppressive discrimination in regard to a large class of citizens, or a large species of property, it is such class legislation, and such denial of the equal protection of the laws, as renders it obnoxious to the fourteenth amendment.</p> <p>11. Same — Provision of State Constitution.</p> <p>Whore the organic law of a state has brought every citizen in the state into one constitutional class for the purpose of taxation, and has provided that taxes shall be assessed and levied on value as the only basis, and at a rate equal and uniform in proportion to value, it is not competent, under the form of classification, to divide up this class, and violate the constitution.</p> <p>12. Jurisdiction of Federal Court — Fourteenth Amendment — State Tax Law.</p> <p>Complainant brought suit, in the federal circuit court in Tennessee against tlie state board of equalizers, to enjoin the certifica iion by them to tlie state comptroller of tlie assessed valuation on complainant’s property for taxation for 1897 and .1898, upon the ground, among others, that under the laws applicable to railroad and telephone properties it had been deprived of the constitutional right of equalization provided for and allowed in respect to all other property in the state subject to taxation, and in consequence its property had been assessed at 25 to 40 per cent, more in proportion to value than other classes of property. The state constitution (article 2, § 28) provides that “all property shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct, so that taxes shall be equal and uniform throughout the state. No one species of property * * * shall be taxed higher than any other species * * * of the same value.” Held, on demurrer, that the suit involved a federal question, under the fourteenth amendment to the federal constitution, which conferred jurisdiction upon the circuit court.</p>

The complainant, a citizen of New Jersey, brought a hill in equity in the circuit court for the Eastern district of New York, against the Kings County Elevated Railway Company, a New York corporation, located in the city of Brooklyn, which alleged that (he defendant, by the use of an elevated steam railway in Pulton street, in front of the complainant’s block of houses, was committing a permanent and continuing injury to his property, through the noise of the trains, the…

<p>1. License to Mine and Remove Phosphatic Deposits — Royalties — Title to Product.</p> <p>Rev. St. S. C. § 102, authorizes the phosphate commissioners to issue licenses to mine and remove phosphatic rock and deposits from the bed of the Coosaw river, etc., and provides that parties so licensed shall be deemed agents of the state, and each ton of the product of such mining operations shall be deemed the property of the state, “until the said parties shall have paid the royalty thereon fixed by the board.” A licensee mortgaged its mined product; owing the state the royalty thereon, and a large amount for unpaid royalty on product sold. 'Held, that such mortgage was a superior lien to the claim of the state for the royalty on the product sold; the mortgagee having no knowledge of such claim.</p> <p>2. Same — Rights of the State — Past-Due Royalty — Control of Product.</p> <p>Under Rev. St. S. C. § 102, which provides that mining licensees of phos-phatie territory shall be deemed agents of the state, and that each ton of the product of mining operations shall be deemed the property of the state until the royalty thereon is paid, the state can refuse, except as against bona fide purchasers without notice, to surrender its control of any portion of such product until all past-due royalty under the license, on product disposed of, is paid.</p> <p>8. Mechanics’ Liens — Construction of Statute — “Laborers” and “Employes. ”</p> <p>Const. S. C. art. 3, § 17, provides that every act shall relate to but one subject, and that shall be expressed in the title. 22 S. C. St. at Large, p. 502, is entitled “An act to provide for laborers’ liens.” The word “laborer” is not used in the body of the act, giving to employés of factories, mines, etc., a lien for their wages or salaries. Held, that the word “employés” must be restricted to mean only such as are laborers, and neither the superintendent nor bookkeeper of a mining company comes within this term.</p>

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

<p>1. Taxation— Equalization — Suit to Enjoin Collection.</p> <p>Where the law creates a board of equalization, and provides that “it shall be the duty of persons interested to appear at the time and place appointed for the meeting of the board, * * * and if it shall appear that there are any lands * * • * assessed under or beyond their actual value such board shall make the proper correction,” a person aggrieved by the wrongful act of the assessor cannot maintain a suit in equity to enjoin the collection of any portion of the tax unless he first seeks redress at the hands of the county board of equalization.</p> <p>3. Same — Power of Board of Equalization.</p> <p>The board of equalization created under the laws of Oregon is empowered to correct all errors of assessment, — as well those where the property or rights are not the subject of taxation as those where the assessment is unequal or excessive.</p> <p>8. Same — Exclusive Remedy — Federal Question.</p> <p>Where the laws of a state create tribunals for the correction and equalization of assessments, and confer upon such tribunals power to grant relief to aggrieved persons, it is for the supreme court of the state to determine whether the statutory remedy is exclusive, or whether it is only cumulative; and the supreme court of Oregon having held that the jurisdiction given county boards of equalization is exclusive, and that the court is without jurisdiction to grant relief from the erroneous exercise of the taxing power except in cases of fraud, such decision raises no federal question.</p>

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

This is a suit in equity by tbe California Fig-Syrup Company to enjoin the defendants from making, selling, or offering for sale any liquid laxative preparation under tbe name “Syrup of Figs” or “Fig Syrup,” or under any name in colorable imitation of tbe name “Syrup of Figs” or “Fig Syrup.” Tbe cause was beard on a motion for a preliminary injunction.

Mo ¡ion to vacate an order heretofore made, requiring plaintiff to file security for costs. The action is brought to recover damages for personal injuries sustained, as is alleged, through defendant’s negligence.

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

On the 16th day of March, 1896, the parties to this suit entered into a written contract, by which, in consideration of $4,000 at the time paid by the plaintiff in error to the defendants in error, and in consideration of further payments thereby stipulated for, the defendants in error agreed “to sell and deliver to the said B. P. Saunders eighteen hundred head of steers of the following ages: About nine hundred head yearlings, about nine hundred two year olds, about -three…

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>This is an action of ejectment, instituted hy the plaintiff in error against the defendant in error to recover possession of a lot or parcel of ground in block 422 in the city of St. Louis, Mo., popularly known as the lot of ground on which was situated McDowell’s Medical College.</p> <p>Isaac Drake McDowell is the common source of title. It appears from the hill of exceptions that in 1843 Dr. Joseph N. McDowell made a contract of purchase for this property with the then owner, Thomas IT. Smith. It would seem that, said Smith having died, one Frederick W. Beckwith was appointed administrator of his estate, and in June, 1852, under order of the probate court, the administrator made a deed to said lot to Isaac Drake McDowell. The deed recited that it was made in fulfillment of said contract of purchase, and in consideration of the payment of $1,200, made hy said Joseph N. McDowell. Afterwards, on the 28th day of February, 1853, Isaac Drake McDowell conveyed this property to certain named trustees, in trust for the following purposes:</p> <p>“The said parties of the second part [the trustees] and their successors in office to hold the said property for the sole use and benefit of Joseph N. McDowell during his natural life; the said property to be controlled, rented, and managed hy the said parties of the second part, their successors in office, as they may deem fit, hy and with the advice and consent of the said Joseph N. McDowell. And in case of the death of the said Joseph N. McDowell, the parties of the second part, their successors in office, trustees as aforesaid, shall hold the said property for the sole use and benefit of Amanda V. McDowell during her natural life; said trustees .to manage, rent, and control said property as they may deem fit, hy and with the advice and consent of the said Amanda Y. McDowell. And in ease of the death of the said Amanda V. McDowell, the trustees aforesaid shall hold said property for the joint use and benefit of the children of the joint bodies of the said Joseph N. McDowell .and the said Amanda V. McDowell, his wife, during the natural lives of said children; the said trustees to manage and rent said property as they deem fit, by and with the advice and consent of the said Isaac Drake McDowell. And in case of the death of said children, the said trustees to hold said property for the sole use and benefit of the said Isaac Drake McDowell, t£e present grantor, unto him, his heirs and assigns, forever.”</p> <p>The said Joseph N. McDowell and Amanda Y. McDowell were the father and mother of said Isaac Drake McDowell. The children born of the joint bodies of said Joseph N. McDowell and Amanda V. McDowell were John J., Charles N., and Annie W. McDowell, and said Isaac Drake McDowell. On the 28th day of May, 1866, said John J., Charles N., and Annie W. McDowell conveyed, hy quitclaim deed, their interest in said lot to said Isaac Drake McDowell. Joseph N. McDowell and Amanda V. McDowell died prior to 1870, leaving the said children surviving. In February, 1871, Isaac Drake McDowell presented to the circuit court of St. Louis county a petition, reciting the facts aforesaid respecting the deed of February 28, 1853, alleging the disqualification or refusal to act of the trustees designated in said deed of trust, and praying for the appointment of William Patrick as trustee to carry out the provisions of the trust, which petition was granted, and the appointment of William Patrick was accordingly made, who accepted the trust. Thereafter, on the 18th day of April, 1871, the said trustee, William Patrick, joined Isaac Drake McDowell and wife in the execution of a deed of trust to David Rankin and Ephraim G. Obear, to secure to one Thomas R. Patton the payment of about $10,500, money borrowed by Isaac Drake McDowell from said Thomas R. Patton. On default of payment this mortgage was foreclosed and the property sold thereunder. 'It is admitted that the defendant’s title is derived under this foreclosure sale, and that, prior to the institution Of this suit, said John J., Charles N., and Annie W. McDowell, and said Isaac Drake McDowell, had departed this life; the said Isaac Drake McDowell dying la.st, on the 5th day of January, 1882. Annie W. McDowell intermarried with William K. Speed, of which marriage the plaintiff in this action was the only child. All the other said children died childless. On this evidence the circuit court directed the jury to return a verdict for the defendant, whereupon the plaintiff sued out this writ of error.</p>

<p>1. Railroads — Injury to Person Near Track — Contruíutory Negligence.</p> <p>Where a workman, engaged in setting a curbstone in a street of a city, was guilty of contributory negligence, and was struck by a locomotive, there being evidence tending to show that the servants of the railroad might, by the exercise of proper diligence, after perceiving- his danger, have avoided harming him, the question was properly left to the jury.</p> <p>2. Same.</p> <p>The ordinary presumption is that a workman engaged in street work near a railroad track will look after his own safety on the approach of a train; but, when the engineer sees that he is not doing so, it becomes the engineer's duty to use all reasonable means in his power to arrest the man’s attention and avoid injuring him; and it was proper to refuse an instruction that it was not the duty of the engineer to stop his train even if he saw the man continuing at his work.</p> <p>3. Trial — Instructions.</p> <p>While one clear statement of a proposition, with an explanation of the evidence bearing upon the point, would seem to be enough, a judgment will not be reversed because of needless repetitious in a charge to the jury.</p>

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

<p>1. Trial — Instruction.</p> <p>Where, at the conclusion of the plaintiff’s testimony, the court overruled a motion to direct a verdict in favor oC tile defendant, to which the defendant excepted, but did not stand upon the exception, and proceeded to introduce evidence, the defendant thereby waived the exception.</p> <p>2. Same.</p> <p>Where, at the close of all the evidence, a motion is made to instruct the jury to return a verdict in favor of the defendant, in deciding the motion the court assumes that all the evidence in the case is true, and that the witnesses are all credible.</p> <p>8. Same.</p> <p>Where the facts are not controverted, and where the inference to be drawn from them is certain, necessary, and undisputed, or where there is no evidence tending to establish a necessary dement in the case, the trial court may direct what verdict should be given; but when it is a mailer of judgment and discretion, of sound inference, and what deduction is to be drawn from even undisputed facts, the law commits it to the decision of the jury, under instructions from the court.</p> <p>4. Same — Omission prom Instructions.</p> <p>Where the instruction is correct as far as it goes, and the only contention is that it did not go far enough, such contention cannot be taken advantage of on error, unless the attention of the trial court was called to the omission, and request made for more explicit instructions.</p> <p>6. Master and Servant — Defective Railway Bridge — Duty op Inspection.</p> <p>A railroad company owes to its train employes the duty of making reasonably frequent and reasonably thorough inspections of the condition of the timbers in a bridge, and is bound to apply such tests as are ordinary and usual in that business to ascertain any defects which exist therein.</p>

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

<p>1. INsubance Policy — Legal Representatives.</p> <p>“Legal representatives” in a policy of insurance ordinarily means executors or administrators when not qualified by the context, but it may he shown to mean next of kin or successors or assigns.</p> <p>2. Res Judicata — Plea.</p> <p>Where a plea gives the parties to a former suit in the same court, refers to-all the documents, pleadings, and judgment, and makes them a part of the plea “as though fully and in detail set out herein,” as the court takes judicial knowledge of its own records, this is sufficient in a plea of res adjudicata.</p> <p>8. Same — Action on Insurance Policy.</p> <p>A policy in favor of the insured’s legal representatives was assigned by him, and after his death the assignee sued thereon. The insured’s administrator intervened in the suit, and claimed the fund. Held, that he was the representative of the wife and child of the insured, so that a judgment in favor of the company was conclusive upon them.</p>

This action was originally brought hy the plaintiff, Isaac S. Moreland, in the district court of the First judicial district of the state of Montana, against the receiver of the First National Bank of Helena, and hy the latter removed to the circuit court of the United States for the district of Montana.

<p>1. Municipal Bonds — Estoppel by Recitals.</p> <p>Where municipal corporations have lawful authority to issue bonds upon the adoption of certain preliminary proceedings, and the adoption of those proceedings is collided on the face of the hones h.y the officers to whom the law intrusls iho power, and upon whom it imposes the duty, to ascertain, determine, and certify this fact, before or at the time of issuing the bonds, such a certificate estops the municipality, as against a bona fide purchaser of the bonds, from proving its falsity to defeat them.</p> <p>3. Same — Election.</p> <p>Where a law authorizing a township hoard to issue refunding bonds provides that the compromise shall not bo valid “unless assented to by the legal voters of such township at an election,” it is the fact of the assent of the voters, and not the certificate of that fact or the canvass of the vote, which confers the right to issue the bonds.</p> <p>3. Same — Canvassing Vote.</p> <p>Where an election was held under Laws Kan. 1879, c. 50, §§ 1-3, authorizing townships to refund their indebtedness, with the assent of the voters of the township, and imposing upon the township officers the duty of calling and holding the election and the duty of issuing the bonds, it is the duty of the township board to canvass the returns and declare the result, and the act of 1875 (Gen. St. Kail. 1889, pars. 4 12, 7064, 7071, 7072), requiring the board of county commissioners to canvass the returns and declare the result of an election, does not apply to an election held under the act of 1879.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>This is a proceeding by mandamus, which was brought to compel the levy of a tax to pay a judgment in'the sum of §5,102.40, with accrued interest and costs, which was recovered by the First National Bank of Buchanan County, St. Joseph, Mo., the defendant in error, against the county of Deuel et al., the plaintiffs in error, in the circuit court of the United States for the district of Nebraska, on July 1, 1896. The Consolidated Statutes of Nebraska of 1893, at pages 977, 978, contain the following provisions relative to the collection of judgments against counties which appear to be still in force:</p> <p>“4132. That whenever any judgment shall be obtained in any court of competent jurisdiction in this territory for the payment of a sum of money against any county, * * * or against any municipal corporation, or when any such judgment has been recovered and now remains unpaid, it shall he the duty of the county commissioners, * * * city council, or other corporate officers, as the case may require, to make provisions for the prompt payment of the same.</p> <p>“4113. If the amount of revenue derived from taxes levied and collected for ordinary purposes shall be insufficient to meet and pay the current expenses for the year in which the levy is made, and also to pay the judgment remaining unpaid, it shall be the duty of the proper officers of the corporation against which any such judgment shall have been obtained and remaining unsatisfied, to at once proceed and levy and collect a sufficient amount of money to pay off and discharge such judgments.</p> <p>“4114. The tax shall be levied upon all the taxable property in the district, county, township, town, or city, hound by the judgment, and shall be collected in the same manner and at the same time provided by law for the collection of other taxes.</p> <p>“4115. The corporate officers whose duty It Is to levy and collect taxes for the payment of the current expenses of any such corporation against which a judgment may be so obtained, shall also be required to levy and collect the special tax herein provided for, for the payment of judgments.</p> <p>“4116. If any such corporate authorities whose duty it is, under the provisions of this act, to so levy and collect the tax necessary to pay off any such judgment shall fail, refuse, or neglect to make provisions for the immediate payment of such judgment, after request made by the owner, or any person having an interest therein, * * * he or they having such interest may apply to the district court of the county in which the judgment is obtained, or to the judge thereof in vacation, for a writ of mandamus to compel the proper officers to proceed to collect The necessary amount of money to pay off such indebtedness, as provided in this act; and when a proper showing is made by the applicant for said writ, it shall be the duty of the court or judge, as the case may be, to grant and issue the writ to the delinquents, and the proceedings to be had in the premises shall conform to the rules and practice of said court, and the laws of ihis territory in such cases made and provided.”</p> <p>The respondents below, who are the plaintiffs in error here, filed a motion to quash the alternative writ of mandamus, which motion was overruled. Subsequently they filed an answer or return to the writ. A motion was made to strike out parts of the return, but the record does not disclose any action with reference to said motion. The cause was submitted to the circuit court upon the pleadings, “together with all the evidences,” as the record recites, and the trial judge made a special finding of the facts, upon which he awarded a peremptory writ, directing the levy of a tax for the year 189-7 sufficient to pay one-third of the relator's judgment. To vacate this order the respondents below have sued out a writ of error.</p>

The plaintiffs in error, deriving title as heirs at law of Francis Johnson, deceased, on September 18, 1893, filed their príncipe for a summons in a pica of trespass, to recover certain sand and gravel taken from their lands by the defendants in error, and by tliom converted to their use.

<p>In Error to the Circuit Court of tlie United States for the District of South Dakota.</p> <p>This is an action brought by the Second Ward Savings Bank, the defendant in error, against the city of Huron, the plaintiff in error, upon coupons cut from 16 funding bonds of $500 each, which that city issued on August 15, 1889. The defense was (1) that the bonds were issued to pay, and that their proceeds were devoted to the payment of, void warrants, which the city had issued to proipote its selection as the capital of the state of South Dakota; (2) that these bonds created a debt in excess of the limitation prescribed by the organic act of the territory of Dakota; and (3) that the city had no power to issue funding bonds. The case was tried by the court. Objections were interposed to the complaint, to the bonds, coupons, and all the evidence for the defendant in error, and to the findings and judgment of the court upon the grounds outlined in this defense. Tlie court made special findings, and rendered a judgment against the city. This was the ease: The legislature of the territory of Dakota granted a special charter in 1S83 to the city of Huron, which provided: “Sec. 7. Tlie city council shall have power: * * * Part 28. To admit and allow' all just claims against the city and direct the payment of such as are allowed. Part 29. To appropriate money and provide for the payment of ihe expenses and the indebtedness of the corporation. * * Part 31. To levy and collect taxes not exceeding five mills on the dollar, for the purpose of providing a sinking fund with which to pay any future-bonded indebtedness of the corporation, and not exceeding ten mills on the dollar for all other municipal purposes in any one year, on all the property, real or personal, within the city limits, taxable according to the laws of the territory. Part 32. To borrow' money, and for that purpose, to issue the bonds of the city in such denominations, for such length of time, not to exceed twenty years, and bearing such rate of interest, not to exceed seven per cent, per annum, as the city council may deem best, said bonds to express upon their face, under wliat authority and for what purpose they are issued, and may have interest coupons attached:” provided that such bonds may be issued cnly after an election at which a majority vote for their issue, and that they may not be sold for less than their par value. Act March 8, 1883 (Daws Dak. p.-). The organic law of the territory of Dakota, which was enacted in 1886, provided that no municipal corporation should ever become indebted exceeding 4 per centum on the value of the taxable property within such corporation, to be ascertained hy the last assessment for territorial and county taxes previous to the incurring of such indebtedness, and that all bonds or obligations in excess of such amount should be void. Comp. Laws Dak. p. 84, § 112. Four per centum of the value ■of the taxable property in the city of Huron, according to the last assessment •previous to the issue of these bonds, was $62,920.99; and at the time of their issue the city was indebted in the sum of $T0,698.99, $54,500 of which was evidenced by bonds, and the remainder by warrants. The public records of the city showed the amount of taxable property and the amount of this indebtedness of the city. In 1887 the legislature of the territory of Dakota had passed a general law, which provided that any city in that territory might, upon a majority vote of its electors,, incur a bonded debt which should not increase its total indebtedness above 4 per centum of the taxable property therein, for the purpose of erecting school buildings, purchasing fire apparatus, putting in waterworks, sinking public wells or cisterns, and putting in sewers, and improving streets. 'This law, however, contained this proviso: “And provided, that this act shall not be construed to limit or restrict the powers already conferred by any special ■charter upon the council of any city or municipal corporation.” Id. p. 257, §§ 1149, 1150. Pursuant to an election held under its charter on April 2, 1889, at which a majority of the qualified electors of the city of Huron voted to authorize its city council to issue bonds to the amount of $25,000, for the purpose of funding the floating indebtedness of the city, the 16 bonds from which the ■coupons here in suit were cut were issued by the city council, and were sold in 1889 to Farson, Leach & Co. for $8,140. The ostensible purpose of these proceedings was to fund the floating debt of the city; but the real purpose, which was known to the citizens and officers of the city, was to raise money to pay the void warrants which the city had issued to carry on a political campaign to elect itself the capital of the state of South Dakota. The $8,140 was actually used by the city to pay these warrants, and none of it was so used until 20 days after it had been paid into the city treasury by Farson, Leach & Co. Each of these 16 bonds was .signed by the proper officers of the city, and sealed with its seal, and each contained these words: “The city of Huron, ten years after date, for value received, will pay to bearer the sum of $500, at the American Exchange National Bank, New York, with interest thereon at the rate of six per cent, per annum, payable semiannually, according to the terms of the annexed coupons. Issued pursuant to an election held April 2, 1859, by authority granted by article 82, section 7, of the charter of the city of Huron, said charter approved by the legislative as.sembly of the territory of Dakota, March 8th, 1883. Issued for the purpose' of funding the floating indebtedness of the city of Huron.” The defendant in error purchased these bonds in the ordinary course of business from Farson, Leach & ■Co. The city paid the first four coupons upon them, but declined to pay more.</p>

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

<p>1. Carriers — Passengers—Extraordinary Care.</p> <p>One who is crossing the track, with a railroad ticket in his pocket, to board a train, but has not' been to the depot, and has not notified the officers or agents of the company that he is a prospective passenger, is not a person to whom the company owes extraordinary care and diligence as a passenger.</p> <p>2. Same — Contributory Negligence — Instructions.</p> <p>In Georgia it is error to refuse to charge that if, by the exercise of ordinary •care, plaintiff could have avoided the consequence caused by defendant’s negligence, he cannot recover.</p> <p>3. Same — Instructions to Jury.</p> <p>Where a train was in sight 200 yards away, and all other witnesses saw it approaching, and most of them heard the bell, and the plaintiff would have been obliged to see it if he had looked, his testimony that he did look; and did not see it, should be taken as untrue, and a verdict directed for defendant.</p> <p>McCormick, Circuit Judge, dissenting.</p>

This was an action at law by George Campbell against the city of Hannibal, Mo., to recover damages for personal injuries received by falling over a bank near the edge of a highway. In the circuit court verdict and judgment were given for plaintiff, and the defendant has sued out this writ of error.

<p>Chinese Exclusion — Laboreks.</p> <p>A Chinaman, whose chief occupation was that of a laundryman, but who was an active, voluntary, unpaid teacher in a Sunday school, and actively conversed with his countrymen upon religious subjects, is a laborer, and not a Christian missionary, within the meaning of the registration and deportation acts of 1892 and 1893.</p>

<p>1. Criminal Law — Corporations—Eight-Hour, Law.</p> <p>A corporation may be guilty of a crime when the only intention required is an intention to do the prohibited act; therefore a corporation may be subject to fine for violating the eight-hour law (Act Aug. 1, 1892).</p> <p>2. Same — Process.</p> <p>_ A court having jurisdiction of a particular crime, may, when that crime is committed by a corporation, obtain jurisdiction over it, in the absence of statutory provision, by any appropriate writ for that purpose.</p> <p>3. .Same — Summons.</p> <p>Jurisdiction over a corporation, in a criminal proceeding to punish it for violating the .federal eight-hour law, may be obtained, in California, by serving a summons upon its president, in the general form prescribed by Pen. Code Cal. § 1390.</p>

<p>1. Protection of Seamen — Unsuitable Pood — Penalty—Evidence.</p> <p>In order to justify a conviction under Rev. St. § 5347, imposing a penalty upon tile master or other officer of a vessel who withholds suitable food and nourishment from the crew, each of the statutory elements of lack of a suitable food supply, absence of justifiable cause, and the presence of malice, hatred or revenge, must be found beyond a reasonable doubt.</p> <p>2. Same — Scurvy—Evidence.</p> <p>Where there is evidence that every one of a crew was afflicted with scurvy, of which several died, and that the ordinary cause of that disease is lack of suitable food, the jury are justified, unless some other cause is shown,' in finding that, there was such lack of suitable food.</p> <p>8. Same— Provisioning op Vessel.</p> <p>Every master, when sailing to or from a foreign port, is bound to see be! ore ho sots sail that his vessel is properly provisioned, including a surplus to meet all reasonable contingencies of the seas, and if, in consequence of an omission to do so, there ip a short allowance, the withholding of suitable food is not justifiable.</p> <p>4. Same — Change in Voyage.</p> <p>if, during a voyage, a master meets with difficulty at sea, it is his duty before changing his voyage for a much longer one, to exercise exactly the same care as when first setting sail, to see that he is properly provisioned for the change of course, and to provision his vessel by any practicable methods the circumstances reasonably admit.</p> <p>5. Ceijiinal Law — Malice Define».</p> <p>Malice consists in one’s willful doing of an act, or willful neglect of a known obligation, which he knows is liable to injure another, regardless of the consequences, and a malignant spirit or a specific intention to hurt a particular individual or crew is not an essential element.</p> <p>6. Protection of Seamen — Insufficient Food — Negligence.</p> <p>Tinder section 5347, the captain is not to be condemned for any mere error of judgment, or for mere negligence, standing alone.</p>

This was. a suit in e.quitj by the Campbell Printing-Press & Manufacturing Company against the Duplex Printing-Press Company for alleged infringement of two patents for improvements in printing presses.

This was a suit in equity by the Overweight Counterbalance Elevator Company against the Cahill & Hall Elevator Company and others for alleged infringement of a patent for an improvement in elevators. The cause was heard on a motion for a preliminary injunction.

These are two salvage suits growing out of the stranding of the American Line Steamship St. Paul in January and February, 1897. The first action is in rem against the steamer and her freight moneys, and the second is in personam to recover salvage in respect to her cargo.

<p>1. Equity Jurisdiction — Insolvent Corporation — Existing Liens.</p> <p>When a court of equity takes control and custody of the assets of an insolvent corporation, it does not destroy existing liens, hut assumes the burden of protecting the rights of all parties. It will not surrender the property in its custody, to be disposed of by other courts, but will, when necessary, order a sale of the assets, and distribute the funds.</p> <p>3.Dredging Vessel — Maritime Lien.</p> <p>A dredge designed to facilitate navigation, to be used in deepening harbors and channels, and removing obstructions from navigable rivers, and to bear afloat heavy machinery for that class of work, may become subject to a maritime lien.</p> <p>3. Same — Wages of Crew.</p> <p>The services of the engineer, firemen, deck hands, and captain, who work on board a dredging vessel, the mechanics employed in keeping the machinery in repair, the pipe men engaged in laying, connecting, and moving the lines of pipe, and the laborers engaged upon and about the filled area, are required in the prosecution of the work in which the vessel is employed, and they have maritime liens for wages.</p> <p>4. Same — Persons Entitled to Liens.</p> <p>The right to claim a maritime lien for wages is not restricted to mariners who serve the ship with peculiar nautical skill, but extends to all whose services are in furtherance of the main object of £he enterprise in which the ship is engaged.</p> <p>5. Same — Coal.</p> <p>Where coal.was furnished to dredging vessels on the orders of the manager of the company owning the vessels,.and was necessary to liable the dredgers to do their work, and where the manager did not have means to procure the coal, except upon tlie credit of the dmh'ers, this raises a conclusive presumption of the necessity for using the credit of the vessels.</p> <p>6. Same — Apportionment of Lien.</p> <p>Where persons were employed on, and coal furnished, two or more vessels, and the evidence shows the time which each man devoted to the service of each vessel, and the amount of coal used on each, the amounts will be fairly apportioned between the vessels.</p> <p>7. Same -State Law Creating Lien.</p> <p>2 Ballinger’s Codes & St. Wash. § 5053, which provides that “all steamers, vessels and boats, their tackle, apparel and furniture, are liable,” etc., creates liens upon ships and vessels for services, supplies, and work done and furnished within the state, without regard to the residence of the owners of the vessels.</p>

<p>1. Makitimk Contract — Burr in Kkm.</p> <p>A contract constituting a person general passenger and freight agent of a steamship, and giving him entire control of her passenger and freight business, is not a maritime contract, and a suit iu rem in admiralty will not lie for a breach of such contract.</p> <p>3. ADMIRALTY — JURISDICTION—LlMN.</p> <p>A contract for services such as are usually performed by ships’ brokers and business agents, and performed on land, is not a maritime contract, and cannot be made the basis of a maritime lien, which may bo enforced in a court of admiralty.</p>

<p>Statute Adopting Foreign Corporation — .Tujrisdtotion of United States Coi,rts — Diversity of Citizenship.</p> <p>Act March 9, 1890 (22 St. at Large S. 0. p. 114), proscribes the necessary steps to authorize a i'oreig'ii corporation to transact business in die state, and provides that any foreign corporation complying with such requirements shall become a domestic corporation, enjoy the rights and be subject to the liabilities of such domestic corporation, may sue and be sued in the state courts, and shall be subject to the jurisdiction of the state as fully as though originally created under the la,ws of South Carolina. Held, that a foreign corporation does not, by complying with such statute, become a citizen of South Carolina, so as to affect the jurisdiction of the United States courts over it.</p>

This was a suit in equity by Jonathan W. Brown against Rosette R. Ellis, executrix of the estate of J. R. Ellis, to recover an assessment made by the comptroller of the currency against such estate on shares of national bank stock.

<p>In Error to tbe Circuit Court oí the Uni led States for the Eastern District of Texas.</p>

<p>Appeal — Effect of Decision.</p> <p>Where the supreme court has considered a case at length on its merits, and remanded it to the circuit for further proceedings not inconsistent with its opinion, the circuit court will not permit the defendant to amend his answer so as to deny a fact affirmatively passed upon and determined by the supreme court.</p>

<p>1. Federal Courts — Binding Effect of State Decisions.</p> <p>The decision of the highest court of a state passing upon the validity of a state statute under the state constitution is not binding upon the federal courts when thereby the validity of a contract, executed before there was a judicial construction of the statute, between the citizen of the state and the citizen of another state, is affected.</p> <p>9. Constitutional Law — Legality of Lien of Subcontractor.</p> <p>Rev. St. Ohio, § 3184, as amended by Act April 13,1894, giving subcontractors a lien on the building and land for the amount of their services or materials, without regard to the amount still unpaid the principal contractor by the owner, limited only by Ihe original contract price to be paid by the owner, is not unconstitutional, under the 'Ohio bill of rights, as a restraint upon the freedom of contracts. 79 Fed. 477, reversed.</p>

<p>1. Equity Pleading — Bill to Foreclose Mortgage — Property in Hards op Receiver.Central</p> <p>Where property is in the hands of a receiver appointed by a court, an independent suit to foreclose a mortgage cannot be maintained, even in the same court.</p> <p>3. Same.</p> <p>One who claims the disposition or possession of property in the hands of receivers of a court must come to that court in that ease, and obtain leave to file a bill in the original cause.</p>

<p>1. NEGLIGENCE OF ATTORNEY — TITLE ADVERSE TO CLIENT — ESTOPPEL.</p> <p>Adi attorney who negligently fails to see that a Judgment, recovered by him for another in Ihe county court, is properly docketed jn the office of the clerk of the circuit court to make it a lien on real estate, as required by Laws Wis. 1856, c. 120, § 192, is not precluded from afterwards acquiring title to, and holding for his own benefit, land upon which such judgment would have become a lien had it been so docketed.</p> <p>2. Execution after Death of Plaintiff — Bid and Certificate in Name of Deceased.</p> <p>Notwithstanding the statute authorizes the issue of execution after the death of the judgment plaintiff, "in the same manner and with like effect as though the person in whose favor the same was rendered was still living,” the sale is a nullity where the bid is made and the certificate taken in the name of the deceased plaintiff.</p> <p>8. Money Held by Attorney — Death of Client — Protecting Client’s Interests.</p> <p>After the death of bis client, an attorney has no right to use monev collected for the client 1o redeem land from a tax sale, in order to protect such client’s interest therein.</p> <p>4. Attorney’s Negligence — Loss of Lien — Estoppel.</p> <p>Where it was an attorney’s duty to redeem land from a tax sale in order to protect his client’s judgment lien thereon, his failure to do so affords no ground for asserting against him an estoppel to deny ihe existence of such lion years after it has been extinguished by sneh sale.</p> <p>D. Trust Ex Maleficio in Land — Enforcement—Laches.</p> <p>Land was sold on execution in 1859, a year after the death of the judgment plaintiff, and bid off for him. niul certificate taken in his name, by his attorney, in ignorance of his death. No dead was taken on the certificate. The land was afterwards sold for taxes, and title thereby acquired by another. At a subsequent tax sale it was purchased by said attorney, who, in 1870, received a tax deed Therefor. In 1883 he sold the land to defendants, and in 1895 plaintiffs, the administrator and widow of the judgment plaintiff, commenced suit to enforce a trust ex maleficio in the land. Held, that the long delay constituted such laches as to bar relief.</p>

<p>1. Railroad Leases — Assumption op Debts.</p> <p>A lessee under a railroad lease covenanted to pay all obligations of the lessor incurred “as common carriers, warehousemen, or otherwise,” and thereafter to pay the interest on certain mortgage bonds of the lessor. Held, that “or otherwise” referred only to obligations of the same class as those enumerated, and that earnings accruing in the hands of receivers of the lessee were applicable to interest on the bonds, rather than to judgments on claims not falling within the class.</p> <p>2. Same — Assumption op Interest Payments — Liability to Bondholders.</p> <p>A lessee railroad company, which covenants to pay to the trustees of the lessor’s mortgage bonds interest thereon as it accrues, is directly liable to the mortgagees therefor, though they are not parties to the lease, since such an agreement shows that the contracting parties intended this stipulation for the benefit of the mortgagees.</p> <p>3. Same — Liabilities op Lessor.</p> <p>A railroad company which has leased its road, rolling stock, and franchises to another company remains responsible to the public for the acts and defaults of the lessee in operating its road.</p>

<p>Res JubrcATA — Parties and Questions Concluded.</p> <p>A member of a partnership in Brussels formed a partnership with a New Yorker, and the Brussels firm supplied to the New York firm its stock in trade. On the dissolution of the New York firm the Brussels firm sued the New York partner for an accounting of the partnership affairs, and to recover a balance alleged to be due. Before judgment the other partner in the Brussels firm died. On the accounting it was found that the New York firm was indebted to the Brussels firm in a specified amount, and judgment was given for plaintiff accordingly. Held that, as at the date of judgment the complainant was sole surviving partner of the Brussels fufm, he was the real party in interest, so that the finding as to the amount due from the New York to the Brussels firm was conclusive, and could not be questioned in a subsequent suit by the New York member against the Brussels member as surviving partner of the Brussels firm.</p>

<p>L Pat.se Imprisonment — Artiest under Valid Warrant.</p> <p>Arrest under a warrant, valid in form, issued by competent authority on a sufficient complaint, is not false imprisonment, though the indictment under which the warrant was issued was procured maliciously, and by artifice and misrepresentation, for the purpose oí extorting money. The proper remedy in such case is not an action for false imprisonment, hut for malicious prosecution. 77 Fed. 271, affirmed.</p> <p>2. Malicious Abuse oe Process.</p> <p>An action for malicious abuse of process does not lie when the process has been used for the purpose which by law it was intended to effect. Such an action presupposes that the arrest under the process was justifiable and proper in its inception, and is founded on grievances arising in consequence of subsequent proceedings.</p>

<p>1. CabbTers — Connecting Lines — Prepayment of Freight.</p> <p>A common carrier engaged in interstate commerce may at common law, and under the interstate commerce law, demand prepayment of freight charges, when delivered to it hy one connecting carrier, without exacting such prepayment when delivered by another connecting carrier, and may advance freight charges to one connecting carrier without advancing such charges to another connecting Carrier.</p> <p>2. Same —1Thkoijgii Tbanspoktation — Joint Rates and Bibbing.</p> <p>Such carrier may enter into a contract with one connecting carrier for through transportation, through joint traffic, through billing, and for the division of through rates, without being obligated to enter into a similar contract with another connecting carrier.</p> <p>«5. Same — Laws of Texas.</p> <p>Rev. St. Tex. 3805, arts. 453(5, 4-537, 4539, do not apply to interstate commerce, because the power to regulate such commerce is vested in congress, and has been fully exercised by the enactment of the interstate commerce law.</p> <p>4 Same — Anti-Tkust Law.</p> <p>Under the act of July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and monopolies,” the only remedy given to any other party than the government of the United States is a suit, for threefold damages, costs, and attorney’s fees, and the only party entitled to maintain a bill of injunction for an alleged breach of the act is the United States, by its district attorney, on the authority of the attorney general.</p>

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

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

<p>1. Master and Servant — Negligence—Competency op Employe.</p> <p>Where a cage in which a miner was being lowered into a mine through a shaft 360 feet deep escaped control of the engineer by reason of his failure to expel the water from the cylinder of the small engine, by which the brake and reversing apparatus were operated, and the miner was injured, and the past competency and experience of the engineer were proved by satisfactory evidence, ibis single act of negligence Is not such proof of in-ccmpefeney as to make the master liable.</p> <p>2. Same— Eaiiajre to Ouey Statute.</p> <p>Failure to provide a light at the bottom of a shaft, as required by the Illinois statute, “to insure, as far'as possible, the safety of persons getting on or off the cage,” does not make the master liable for injuries to a servant who was being lowered through the shaft; in a cage, where the absence of the light neither caused nor affected the injury.</p> <p>3. Same — Defective Brake.</p> <p>Where a servant is injured while being lowered Into a mine in a cage, and the same is caused by the engineer’s failure to keep in proper condition the cylinders of the engines operating the brake and reversing apparatus, and the same would have been sufficient except for such neglect, the master is not chargeable with failure to supply a sufficient brake and reversing apparatus.</p> <p>4. Same — Negligence of Oo-Emrloye.</p> <p>Where a servant is injured through the negligence of the engineer in charge of the engine operating the cage in which he is being lowered to a mine, such negligence is that of a co-employé, and the master is not liable.</p> <p>■5. Same — Submission to Jury.</p> <p>Where the court submits a case to the jury upon four propositions, only one of which is proper, it is impossible to say on which proposition the verdict was returned, and it must be reversed.</p>

<p>1. Bailment — Contract for Control of Farm.</p> <p>The owner of a farm, on which he then lived and has since lived, agreed with his son that the son should take control and management of the farm, implements, and stock, make repairs, pay taxes, replace stock, and have the net proceeds, each party being free to terminate the agreement at any time. This arrangement continued, with an interval of a few months, for six years. Held, that the transaction was a bailment, which did not vest the title of any of the property, or of the proceeds of the farm, in the son, so as to subject it to an execution for his debts.</p> <p>2. Title — Possession—Illinois.</p> <p>The possession of five years which; under 2 Starr & C. Ann. St. Ill. 1896, p. 2020, § 7, establishes title, is an exclusive and undivided possession, and does not apply to a ease where the possession, amounting only to custody, is held for the benefit of the owner, under circumstances which could not be promotive of fraud.</p>

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

This is a writ of error from a judgment of the circuit court for the Eastern district of Now York. The action was tried and the facts were specially found by the court, a jury having been waived by written stipulation signed by the attorneys for the respective paities.

Arthur C. Geer, as administrator of William A. Geer, deceased, the defendant in error, sued the receivers of the Union Pacific Railway Company, hereafter termed the “U. P. Company,” and the Chicago, Rock Island & Pacific Railway Company, hereafter termed the “R. I. Company,” they being the respective plaintiffs in error, on account of the death of his intestate, who was killed in a railway collision which occurred on January 2, 1894, at Linwood, on the line of the U. P.…

<p>1. Contract — Grant of Mining Lands — Abandonment of Part.</p> <p>The plaintiff’s grantor, for the purpose of developing the mineral wealth in his vicinity, conveyed to the plaintiff all the mineral, coal, iron ore, petroleum oil, and salines in, upon, and under a certain tract of land, with the right to mine and remove the same, and construct necessary buildings thereon, the plaintiff agreeing to develop the mines, and pay Ills grantor a stipulated sum annually. The grant to plaintiff contained a clause permitting him “to abandon the said lands and mining at any time, and remove buildings and fixtures.” Held that, if the plaintiff abandoned the lands and mining, his title to the minerals, and all other rights conferred by the contract, terminated.</p> <p>2. Same.</p> <p>The grantee, having done nothing under the contract for a period of more than 20 years after its execution, must be considered as abandoning it, and his claim to the minerals nothing more than a cloud on the title of his grantor or assignees.</p>

By the decree below, the second a.nd fifth claims of letters patent of the United States, No. 368,770, issued on August 3, 1887, to William .1. Keep, assignor to the appellee, for an improvement in stoves, were declared valid, and to have been infringed by the plaintiff m error.

This cause comes here upon an appeal by complainant from a decree of the circuit court, Southern district of New iork, entered March 16, 1897, dismissing the hill. The suit was brought for infringement of letters patent of the United States, No. 430,487, granted to Alton J. Shaw, June 17, 1890, for an electric crane.

<p>This was a suit in equity by the American Graphophone Company against' Cleveland Walcuct and Edward E. Leeds, for infringement of a patent.</p>

<p>1. Towing Raft — Guaranty of Safe Delivery — Breach.</p> <p>Where the lessees of a steam tug entered into a contract to tow a raft of cedar logs, and guarantied their safe delivery, they are liable under the guaranty for logs lost by them, and, under the statute of the state of Washington (2 Ballinger’s Codes & St. Wash. § 5953), the libelants have a lien on the tug for the amount of damages.</p> <p>2. Same — Negligence.</p> <p>Where the master and lessees of a tug, towing a raft, finding that they cannot enter a bay until the next flood tide, leave the raft unsecured except by a single line tied to an insecure stake in the beach, and remain absent until the next flood tide, they are guilty of gross negligence and liable for the value of the logs lost.</p>

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

These three appeals are from the decrees of the district court for the Southern district of New York, which dismissed three libels against the steamship Bourgogne, for damages arising from a collision. The first libel was by the owner of the injured vessel; the second was by one of her passengers; and the third was by the insurers and owners of her cargo.

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

<p>1. Equity Pleading — Cross Bill — Nature.</p> <p>A cross bill is in the nature of a defense, may be filed only by a party to the suit, and may not introduce new matter or new parties.</p> <p>3. Same — Cross Bill and Intervening Petition — When Entertained.</p> <p>Where, in a suit by a trustee to foreclose a trust .deed, a bondholder under such trust deed, not a party to the suit, files a so-called “petition and cross bill,” setting up misconduct of the trustee in his management of the trust, and asking relief against the trustee for the sole benefit of the petitioner, without controverting any issue of the original bill or resisting the prayer for foreclosure, held: (a) That such petition cannot be entertained as a cross bill, being filed by a stranger to the cause; (b) that it cannot be entertained as a petition for leave to be made a party and file a cross bill, since it states a cause of action which, although growing out of the same transactions, is virtually independent, and a cross bill embodying such matter could not be entertained, even if the intervening petition were granted.</p>

This was a suit in equity by the Nevada Nickel Syndicate, Limited, against the National Nickel Company and others. The cause was beard upon demurrers and exceptions of defendants to the supplemental bill.

<p>Building and Loan Associations — -Bights of Borrowing Shareholder.</p> <p>Where a building and loan association "becomes insolvent, and a receiver is appointed to wind up its affairs, a borrowing shareholder is chargeable with the amount of money actually received by him, with interest from the time it was received, and is entitled to credit for all interest paid, and for so much of the premium as was unearned at the time the society passed into the possession of the receiver.</p>

<p>1. Foreci.osueb Sams — Notice or Appraisement.</p> <p>Under Cobhey’s Consol. St. Neb. 1891, §§ 5023-5025, no notice of the time and place of the appraisement of real estate to be sold on decree of foreclosure Is required.</p> <p>& Setting Aside — Appraisement—Weight op Evidence.</p> <p>An appraisement duly made by two disinterested, sworn freeholders, supported by the opinions of Ihe trial judge and the master, by the affidavits of witnesses, and by the fact that the land lias been twice offered for sale for less than the appraisement, and not sold, for want of bidders, will be upheld, although a great or number of witnesses regard it as too low, and a prior appraisement was higher.</p> <p>S. Master in Chancery — Appointment.</p> <p>It is not requisite to the validity of an appointment of a standing master that the order of appointment shall he recorded in any book of the court.</p> <p>4. Same — Bond. '</p> <p>There is no statute or other authority requiring a standing master to give a bond, and, if an order under which he makes a sale of property does not require a bond, the validity of the sale is not affected by the lack of one.</p> <p>5. Same — Notice.</p> <p>It is no objection to the validity of a sale by a master that a party had no notice of his appointment. His authority to make the sale is derived, not from his appointment as an officer of the court, but from the decree of sale, of which the parties had notice.</p> <p>6. Same — Eligibility—Collateral Attack.</p> <p>An order appointing a standing master is impervious to collateral attack on the ground that he is ineligible because he was a clerk of the court or a son of one of the judges. That question can be presented only by a direct proceeding to set aside the order of appointment.</p> <p>7. Same.</p> <p>Where a decree of foreclosure appoints a standing master, who is a clerk of the court and a son of the judge, to make a sale, and no appeal is taken from the decree, the authority of the master to make the sale cannot be successfully attacked by a motion to set aside the subsequent appraisement, or by objections to the confirmation of the sale, on the ground that he is ineligible to the appointment, because that would be a collateral attack upon the decree.</p> <p>8. Judgment — Collateral Attack.</p> <p>Jurisdiction to hear and determine a question is not limited to the power to make correct decisions, and the judgments and decisions of courts having jurisdiction are equally conclusive, whether right or wrong,1 unless challenged by'writ of error or appeal, or impeached for fraud.</p> <p>Philips, District Judge, dissenting.</p>

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

Appeal irom the Circuit Court of the United States for the District of Colorado.

<p>1. Receiver — Insolvent Corporation — Burr against Directors.</p> <p>A receiver of ail insolvent national bank has a right to maintain a suit in his own name against directors to charge them for losses that may have been sustained by (he corporation and its creditors through their wrongful or fraudulent acts.</p> <p>2. National Banks — Increase of Capital Stock — Liability of Directors.</p> <p>The increase of the capital stock of a bank based on a fictitious value of assets, and on notes given by the directors, with an understanding lliat they were not to be paid, is in violation of Rev. St. § 5142, and the directors of the bank participating are liable for all losses resulting to the creditors.</p> <p>3. Same — Acquirement oe Real Estate — Satisfaction of Limn.</p> <p>Where a national bank has lawfully acquired an interest in real property, in satisfaction of a debt, it may purchase other undivided interests therein or incumbrances existing thereon, provided such action is necessary to enable it to manage or dispose of the i>roperty to better advantage.</p> <p>4. Sauk — Operating Manufacturing Plant.</p> <p>Where a national bank acquired certain mill property, in satisfaction of.a debt, and the directors organized a corporation among themselves for the purpose of operating the mills as the hank's agent, using its funds, and operated (hem for the bank at a loss of $23,000, llie directors of the bank participating are liable to the creditors lor the loss.</p>

<p>1. Laches — Limitation op Actions.</p> <p>Tlie proviso in Bev. St. Ind. 1S94, § 2597 (Rev. St. 1881, § 2442), permitting suits to be brought against heirs, devisees, and distributees of a decedent within two years after final settlement, by any creditor out of the state, does not prevent a federal court from applying the bar of laches resulting from delay within the statutory time. 81 Fed. 36, affirmed.</p> <p>Same — Failure to Present Claim against Estate — Depreciation op Collateral.</p> <p>When one who claims to be a creditor of a deceased person neglects for more than three years to present his claim, or to bring suit upon the demand, of which the representatives of the decedent are ignprant, and in that time the collateral securities held for the claim depreciate from more than its amount to much less, and the joint maker of the note has become insolvent, the creditor is guilty of inexcusable laches, which bar him from proceeding in equity against the devisees of the decedent. 81 Fed. 36, affirmed.</p>

Tlie Colorado Midland Railway Company was organized under the statutes of Colorado in 1883. It constructed a railroad from Colorado Springs, Colo., running- in a westerly direction, via Lendville, across the summit of the mountain known as “Hagerman Pass,” to Glenwood Springs, Colo.

This was a bill for injunction by the Pokegama Sugar-Pine Lumber Company against the Klamath River Lumber & Improvement Company. The cause was heard on a motion to modify the restraining order.

<p>, Order to show cause why defendants should not be punished for contempt in violating a restraining order.</p>

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

<p>Stock ok Insolvent Natío nal Bank — Real and Ostensible Owneii — Liability tor Assessment.</p> <p>Defendant acquired stock of a national bank through his agents, in whose, names the shares were registered on the books of the bank, and so appeared when (lie bank became insolvent. Defendant had all the time held the certificates, so indorsed that he might have had the shares registered in his own name. Thltl, that the receiver can recover from defendant an assessment on said slock for the benefit of creditors, though he might have proceeded against those in whose, names ihe shares appeared on the bank’s stock register.</p>

<p>t. Pleading — Matters of Public Record— Information or Belief — Motion to Strike Out.</p> <p>An answer.denying matters of public record, on the ground that defendant has not sufficient information or belief concerning them, will be stricken out as sham.</p> <p>2. Subscription to Corporate Stock — Insolvency of Corporation — Rf,-soission for Fraud.</p> <p>A subscription to stock induced by fraud may be rescinded after, as well as before, the corporation ceases to be a going concern, where no considerable time has elapsed since the subscription, if the subscriber has taken no active part in the management of the corporation’s affairs, has been diligent in discovering the fraud and in taking steps to rescind, and where no considerable amount of corporate indebtedness has been created since the subscription, and is still unpaid.</p> <p>3. Insolvent National Bank — Liability of Stockholders — Rescission of Subscription — Pleading.</p> <p>An answer seeking to rescind a subscription to stock of an insolvent national bank, on the ground that it was obtained by fraud, must show that the creditors for whose benefit the assessment sought to be enforced was levied did not become such during the time defendant held such stock, and allege facts showing that defendant has not been guilty of laches.</p> <p>4. Same — Rescission of Subscription — Allegation of Diligence.</p> <p>A national bank went into liquidation November 30, 1896. An action against a stockholder to enforce an assessment made by the comptroller of the treasury was commenced November 9, 1897. Defendant’s answer set up in detail the fraud by which he had been induced to subscribe and pay for the stock, alleged tliai he had ever since been a resident of a distant state, and that, until a short time before the filing of the complaint, he had no opportunity of discovering the fraud. Held, that diligence was not shown.</p>

<p>1. Voluntary Assignment — Jurisdiction to Determine Validity.</p> <p>The power of the district courts in Wyoming, under a deed of assignment, is merely to supervise and direct the administration of the trust; and, jurisdiction over an independent proceeding to determine the validity of the assignment is not exclusively 'in the court where the deed is filed.</p> <p>2. Same — Partnership Property.</p> <p>Under the Wyoming assignment law, providing that creditors accepting the benefit of an assignment shall give release in full of their several debts, held, that an assignment, by a partnership, of partnership property alone, to pay firm debts only, is invalid; creditors are entitled to look also to the separate property of the partners.</p> <p>3. Partnership — False Statement op Financial Condition by Member.</p> <p>A statement by a member of a firm of its financial condition, in order to obtain an extension of credit, is binding on him and on the firm, even though he is mistaken, since he has full opportunity to know its falsity, and by making the statement obtains an advantage he would not otherwise have enjoyed.</p> <p>4. Statu Statute — Adoption by Anothke Statf. — Conrteuotion.</p> <p>Where a statute of one state is adopted by the legislature of another, the construction placed upon it by the highest court of the former state is also adopted; provided, however, the statutes are identical, and their construction involves the determination of the same questions.</p>

<p>This was an action at law by John Edmunds, receiver of the Eaton & iifei>hens Manufacturing Company, against P. F. Nolan, doing business under the name of Nolan Bros. Shoe Company, to recover damages for the alleged wrongful conversion of a lot of shoes.</p>

<p>Accident Insurance — Failure to Annex Copy of Application to Policy.</p> <p>The Pennsylvania act of May 11, 1881, declaring that, in all controversies relating to '‘life and fire insurance policies,” neither the application, constitution, by-laws, nor other rules of the company shall be received in evidence or be considered as part of the contract or policy, unless copies of the same are attached thereto, does not include policies of insurance against bodily accidents.</p>

<p>In Error to the United States Court of Appeals in the Indian Territory.</p> <p>This case comes on a writ of error from the United States court of appeals in the Indian Territory. It is a suit in ejedment brought by J. B. Wilson, the plaintiff in error, against Sol B. Owens, the defendant in error, to recover possession of certain lands situated in the Indian Territory. Judgment was rendered against the plaintiff below at nisi prius, and the judgment was affirmed by the court of appeals in the Indian Territory. Wilson v. Owens, 38 S." W. 976. It is conceded by counsel for the plaintiff in error that the following is a correct statement of the character of the controversy: “The plaintiff, J. B. Wilson, a resident of the Chickasaw Nation, and a member of the Chickasaw tribe of Indians, entered into a verbal contract in the spring of 1888 with W. P. Kendall; the substance of the same being that Kendall was to put all the land in a certain valley in cultivation, erect a wire fence on oak posts, thirty feet apart, around said land (it being the land in controversy), and build thereon a certain house, of the value of $200, dig a well, and fit the place as a farm, for all of which the said Kendall was to have and enjoy the use and occupation of the place for the period of seven years from the spring of 1888. Afterwards, in 1889, the defendant, Sol B. Owens, purchased from said Kendall his contract with the plaintiff, Wilson, and impliedly obligated himself to fulfill the terms and obligations of the Wilson-Kendall contract. In 1889 the plaintiff, Wilson, entered into a further verbal contract with the defendant, O'-ens, for a valuable consideration, by the terms of which the defendant, Owens, was to have two years’ occupancy of the place, in addition to the Wilson-Kendall contract. The plaintiff contends, and supports his contention with evidence, that the defendant has failed to place the improvements on the place, as per terms of the Wilson-Kendall contract, within seven years, and that by reason thereof the defendant has forfeited his contract, and that the plaintiff is entitled to the possession of the same; that in 1895, just after the expiration of the seven-years occupancy of the place, plaintiff made a written demand upon defendant for possession of the place, which demand for possession was refused, whereupon the plaintiff below brought the present suit.”</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe Western District of Arkansas.</p> <p>The Petross-Stump Lumber Company is a voluntary association conducting in the state of Arkansas and tbe Indian Territory the business of manufacturing and selling lumber. The Long-Bell Lumber Company is a Missouri corporation, with its principal business office at Kansas City, Mo., with an agency at Van Burén, Ark., where the lumber in question was principally shipped after having been milled. On the 17th day of November, 1893, these companies entered into the following contract:</p> <p>"Memorandum of agreement made this, the 17th day of November, 1893, between the Petross-Stump Lumber Company, of Tuskahoma, 1. T., and the Long-Bell Company, of Kansas City, Mo., witnesseth: The said Petross-Stump Lumber Company agree to sell all ¡he merchantable lumber manufactured by their mill now located at Tuskahoma, I. T., or any other mill or mills they may erect or operate during the year 1894, at the following prices, per Exhibit A, hereto attached, and made a part ol' this agreement. All shipments and grades to be subject to grades adopted by the Southern Lumber Manufacturers’ Association. Tbe said Petross-Stump Lumber Company agree to cut all lumber of such lengths and of such thickness and widths as the said company may direct, and to cut all stock plump, as to length, width, and thickness, and to insure alT lumber in stack at the end of each month in favor of said company, and pay ihe premium on the same. And in consideration of the above the said company agrees to take an inventory of all the lumber in stack at the mill of the said Petross-Stump Lumber Co. between the .1st and 10th of each month during this contract, and the said Petross-Stump Lumber Co. will, after said inventory, mm over to the agent of the said company all of the said lumber so mentioned, which was to become the property of the said company, and for which the agent of the said company will render a, statement to the said Petross-Stump Lumber Co. for all lumber received from them. The said company further agrees to advance S5 per thousand for all lumber checked up each month, in 120-day acceptances; reserving the right to discount the same at 4 per cent., and pay the remainder when the stock is shipped out on the same terms. No advance will be made on star and clear, but all shipments made during the month will be paid for in full between the 1st and 10th of the following month, as per terms specified above, — 120-day acceptances. And it is expressly understood and mutually agreed upon that the company is under no obligation, by reason of inking the entire output of the mill, to accept any lumber that will not meet the requirements of the grades referred to. This contract is to continue in force until Jan. 1st, 1894.”</p> <p>Shipments of lumber under this contract were made to the Long-Bell Company thereinafter called the “defendant”), by the Petross-Stump Lumber Company (hereinafter called the “plaintiff’?), up to the 9th day of January, 1895, at which time the plaintiff assigned said contract to the Bank of Springdale, Ark., when it sent to the defendant the following' notice thereof:</p> <p>“Tuskahoma, I. T., Jan. 9th, 1895.</p> <p>“Long-Bell Lumber Co. — Gentlemen: Pay to the Bank of Springdale, Arkansas, any and all sums of money now due, or which may hereafter become due, from you under the agreement and contract existing between yourself and the undersigned; we having this day sold and assigned to the said the Bank of Springdale all our right and title, claim and interest, in and to all accounts and claims and interest, in and to all accounts and claims in our favor, and against you, for any and all lumber now being held by us for your account under said agreement.</p> <p>“Respectfully, Petross-Stump Lumber Co. L. S. P.”</p> <p>Up to the time of this assignment, monthly statements of such shipments, showing dates, quantity, quality, and grade, as also cost price during the current month, accompanied with defendant’s cheek for the amount of each month's dues, were regularly sent by the defendant to the plaintiff. And after the assignment the shipments were continued as theretofore up to the last consignment, in January, 1890, and monthly statements and remittances as aforesaid were sent to the bank. Thus matters stood until this action was instituted by the plaintiff in June, 1890, claiming a balance on account of $2,413.41. The answer, inter alia, pleaded that by reason of the assignment the plaintiff is not the real party in interest. It denied that the exhibit filed with the petition as a part of said contract was either the original, or a copy thereof; and defendant filed with its answer what is claimed to be a correct copy. It also pleaded that all the lumber shipped by plaintiff was not merchantable lumber, as called for by the contract. It then specifically .pleaded the facts aforesaid respecting the rendering of monthly accounts, — that each monthly stated account ■was closed up and settled by them at the time, and that by its acceptance thereof, as also its assignee, the bank, without objection or protest, the plaintiff is estopped from reopening the account and maintaining this action. The reply only put in issue — First, the allegation of the answer respecting the assignment of the contract to the bank; and, second, “that it is not true, as set up in the third paragraph of defendant’s answer, that plaintiff is estopped; that defendant has not accounted to this, plaintiff as set forth; neither has this plaintiff ever acquiesced in any settlement with, or account rendered by, defendant.”</p> <p>The trial was to a jury. The principal contention around which the battle raged at the trial was as to the quantity of unmerchantable lumber, known as “culls,” contained in the shipments made. The plaintiff, while conceding that culls were not within the terms of the contract, yet contended that all the lumber shipped was merchantable, while the defendant contended that the discrepancy between the quantity shipped and the quantity accounted for was attributable to the presence of culls in the shipments. At. the conclusion of the testimony the defendant asked the court, and it refused, to give the following instructions: “You are instructed that the defendant, the Long-Bell Lumber Company, having rendered to the plaintiffs monthly accounts showing the debits and credits existing between them, and the credits therein being upon account of lumber delivered, and an account of such lumber, giving its grade, and showing the amount culled therefrom as not merchantable, having been rendered plaintiff upon each shipment, then such accounts became stated accounts, and, unless objected to within a reasonable time, became binding upon the plaintiffs; and they can only object to them now upon the ground of fraud or mistake. I instruct you, as a matter of law, that the evidence shows that the plaintiffs did not object to the grading, and did not object to the culling from the lumber of certain amounts, as unmerchantable, within a reasonable time; and hence your inquiry in this case is confined to the simple question as to whether the defendant, the Long-Bell Lumber Company, practiced upon the plaintiffs a fraud in the grading and culling of the lumber shipped, or whether the grading and culling was founded upon a mistake as to grades and culls; and in thq latter case, if, after full, knowledge of the grades and amount of culls made upon each car, the plaintiffs acquiesced therein, then they are estopped to claim now that such grades and culls were founded upon mistake.” “The defendant having fur-risked the plaintiffs with a statement of the grades of the lumber shipped, and the amount of lumber rejected as unmerchantable, the plaintiffs must have objected within a reasonable time to the grades and culls so stated; and if (hey failed to do so wifnin a reasonable time, and accepted the purchase price of the lumber at the grades, and less the rejected lumber, then they became bound by the grading and culling so reported to them, and cannot in this suit reopen that niK'stion.” To which action of the court in refusing said instructions the defendant duly excepted. Among the instructions given by the court of its own motion, to 'which exceptions were taken, are Uio following: “(2) The court instructs you that, raider the contract upon which suit is brought, when the Pelross-Stiunp Humber Company sawed, stacked, .and insured their lumber at the mill— And T just stop long enough to say to you what I mean when 3 use iht' word ‘contract’ hereafter. I mean this paper that is marked as a, cony of the contract, and attached to the complaint. The court instructs you íha!. under the contract upon which suit is brought, when the Petross-Slump Humber Company sawed, stacked, and insured their lumber at the mill, and the agent of the Long-Bell Lumber Company had inventoried the same, and the Pc-tross-Siunrp Lumber Company had turned the lumber over to the said agent, that the lumber at the mill became the lumber df the Long-Bell Lumber Company, as soon as the said agent had received said lumber, and furnished a piare: non t ¡hereof to lite plaintiff company: that is, to the Pelross-Slump Lumber Company, — the men who sawed it. (3) The court further instructs you that, when the lumber was so received by the Long-Bell Lumber Company as their Iromier, if was received as merchantable limita, under the terms of the con-traer, subject, however, to ire graded under the rules adopted by the Southern Lumber ií a iiu fact liras’ Association for grading lumber. Either party therefore liad lite right to grade the lumber, and no place was fixed in 1'oe contract: as to v, here, when, or by whom if should be graded. The evidence tends to show thru belli parties undertook to grade the lumber according to the rules adopted by the ¡tonthem Lumber ¡Manufacturers’ Association. At bother either party did sé is a. enesiion of fact for you to determine.” ,“(5) The defendant alleges in its answer that the plaintiff's had assigned all their interest: under the contract sued on to the Bank of Springdale, Arkansas, before the suit was instituted. The plaintiffs deny this. The letter introduced is sufficient to convey the interest of the plaintiff's in the contract to the bank. Plaintiffs introduced evidence lending to show that the paper offered in evidence fending to show the assignment was intended to convey their interest in the contract sued on, as collateral security to the bank l'or the payment of a debt which plaintiffs owed to the bank, and that said debt was discharged before the institution of this suit, and that the contract and rights and Interest under it reverted to them before the institution of this suit. If, therefore, you find from the evidence that the assignment was made simply as collateral security, and that the debt was discharged before the suit was brought, then whatever interest in the contract had been assigned as collateral security upon the payment of the debt at once reverted to the plaintiffs; and plaintiffs would have a right to sue upon the contract in their own names, and recover from the defendant whatever was due thereupon in their own right, if you find anything was due.” The jury returned a verdict for plaintiff in the sum of SI,308.15. The defendant brings the ease here on writ of error.</p>

<p>1. CORPORATION — Essential Attribute.</p> <p>The only absolutely essential attribute of a corporation is the capacity to exist and act within the powers granted, as a legal entity, apart from the individual or individuals who constitute its members.</p> <p>2. Federal Jurisdiction — Diverse Citizenship — Partnership Associations.</p> <p>A ‘‘partnership association, limited,” .or organized under Act June 2, 1874, which is governed by a board of managers, with liability of members limited to the amount of their unpaid capital stock, power to sue and be sued, and to hold and convey real estate, in its associated name, is a corporation and a citizen of Pennsylvania, within the meaning of the statutes of the United States requiring diversity of citizenship to give federal jurisdiction, though the assignee of the interest cf a member in the capital stock cannot participate in the affairs of the company unless elected to membership therein by a majority of its members.</p> <p>8. Res Judicata.</p> <p>Where, in an action for specific performance between the parties to a contract, the same is declared invalid, it cannot be set up and again litigated in on action brought to recover the value of coke delivered to the defendant thereunder.</p> <p>4. Invalid Contract — Property Delivered Thereunder — Recovery.</p> <p>Where a contract not immoral or against public policy is declared invalid by reason of its improper execution, either party may recover from the other the value of the property delivered by Mm to, and retained by, the other under flie contract.</p>

<p>In Error to the Circuí t Court of the United States for the Western District of Michigan.</p> <p>This is an action at law against defendant in error, a municipal corporation, created under the laws of Michigan, to recover damages for the breach of a contract in failing and refusing to maintain a fire hydrant, as required hy the contract sued on. The contract was between defendant in error and C. E. Fenton, and subsequently assigned by Kenton to plaintiff in error, said Fenton having sold to plainliif in error the mill property, for the benefit of which the contract was executed. It is agreed that the contract is correctly set out in the declaration, as follows: “Whereas, Clarence E. Fenton, of Linwood, Bay county, Michigan, is the owner of a mill and the necessary machinery for the manufacture of staves and heading for slack barréis, which he proposes to move to Evart, Osceola county, Michigan, on the Main Muskegon river, and to erect, equip, and operate said mill in the village of Evart, aforesaid, and to employ what would be equal to fifteen men ten months in the year for the term of five years, and to produce timber for the purpose of manufacture in said mill; and whereas, the village of Evart, Osceola, Michigan, being desirous of obtaining the location within its boundaries of a stave and heading mill, for the purpose of giving employment in part to the citizens and creating a market for the sale of timber for the inhabitants of Hie surrounding county, thereby putting money in circulation by the employment of the labor and purchase of timber, and thus adding to the purchasing’ povver of its a,nd the surrounding country’s inhabitants, thereby increasing the general prosperity of the village and its citizens: Now, therefore, it is agreed between the village of Evart, Osceola county, Michigan. of the first part, and Clarence E. Fenton, of Linwood, Bay county, Michigan, of the second part, as follows: The first agrees that it will placo and maintain a fire hydrant within a reasonable distance of a mill building hereafter to be built, and furnish water for the fire protection free during the term of the operation of said mill, and will also give to the aid of said second party to in part reimburse him for the cost of tearing down and removal from Linwood, Mich., to Evart, Mich., and rebuilding and putting up the aforesaid stave and heading mill, and the machinery necessary to successfully operate the same,the sum of seventeen hundred dollars, the same to he paid as follows: Seven hundred dollars when the mill plant is completed and in operation, and one thousand dollars to he paid in a village order to be delivered to second party when said mill plant is completed and in operation, said order to be made payable on or before August 15, 1893. Said second party, in consideration of the above agreements, agrees that he will remove said mill and machinery to the village of Evart within ninety days from this date, and locate and put said mill in operation during the present year, and will manage same so as to give employment to what would equal fifteen men ten months in the year for five years from the date of putting in operation of said mill, and further agrees by himself, his heirs or assigns, to maintain, keep in repair, and operate such stave and heading mill for the manufacture of staves and heading for slack barrels, and containing all the machinery necessary to successfully manufacture the same, and will not remove from Evart, or cause the same to be done, said mill during the term of five years; and it is hereby expressly agreed and understood that, in case of default in [any] of the agreements to be performed by the second party, the first party shall be entitled to receive from the second party or his heirs, in an action for moneys had and received, a sum for the unearned time remaining after the violation of this agreement, in proportion as seventeen hundred dollars is to five years; and that the money advanced by the said village of Evart shall constitute a lien in proportion to the unearned time as against the removal of the said mill from the said village of Evart for the period of time as herein specified; and that the mill is unincumbered.” It is averred that Fenton and plaintiff in error, to whom the contract was assigned, have duly performed the contract on their part. The defendant in error paid the $1,700 bonus, and continued for a time to maintain the hydrant as stipulated, but finally ceased and failed to do so. The mill, machinery, and contents were afterwards destroyed ■ by fire. It is alleged that the fire was promptly discovered, and could have been extinguished except for the defendant’s failure to furnish fire protection by maintaining the hydrant. In consequence of this violation of the contract, $19,000 is claimed as damages for the loss. The declaration -was demurred to upon the grounds, among others, that the contract sued on was void, because not authorized by the charter of the village of Evart or by the laws of Michigan, and was without consideration. The court sustained the demurrer, holding that the contract was ultra vires and without consideration. Final judgment was accordingly entered dismissing the suit, and, to review that judgment, this writ of error is brought.</p>

<p>Admission op Chinese Merchant — Certificate op Identification — Engaging in Labor.</p> <p>Where a Chinaman is admitted into this country upon presentation of a certiiieate in conformity with 22 Star. 58, as amended by 23 Stat. 115, identifying him as a morchani, proof that, ever since he was permitted to land, he has eonfinuously engaged in manual labor, will overcome the effect of such certiiieate as prima facie evidence of his right to remain in the United States.</p>

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

<p>1. Trade-Mark — Fraudulent Competition — Equity Jurisdiction.</p> <p>Where one person has so dressed out his goods as to deceive the public into the belief that they are the goods of another person, and so put them upon the market to the manifest injury of that person and of the public, an action at law v?ill lie for the deceit; and, to save a multiplicity of suits, and prevent irreparable injury, equity will restrain such unfair and fraudulent competition.</p> <p>2. Same — Geographical Names.</p> <p>While a geographical name is not the subject of a trade-mark, and any one may use it, yet where it has been adopted, first, as merely indicating the place of manufacture, and afterwards has become a well-known sign and synonym for superior excellence, persons residing at other places will not be permitted to use it as a brand or label for similar goods for the purpose of appropriating the good will and business of another.</p> <p>8. Same — Proprietary Right.</p> <p>Where the question is simply one of unfair competition, it is not essential that there should be anj’- exclusive or proprietary right in the words or labels used, as, irrespective of any question of trade-marks, rival manufacturers have no right, by imitative devices, to beguile the public into buying their wares under the impression they are buying those of their rivals.</p> <p>4. Same — Joinder of Parties.</p> <p>Where one person or corporation is entitled to relief in a case of fraudulent .competition in trade, two or more persons or corporations having a common ' interest in preventing the fraud may unite to maintain an action in equity.</p> <p>5. Same — Minneapolis Flour Manufacturers.</p> <p>Certain millers in Minneapolis, Minn., and their predecessors in business have for 80 years made flour by the roller patent process, and used as brands the words “Minneapolis,” “Minneapolis, Minn.,” “Minneapolis, Minnesota,” “Minnesota,” “Minnesota Patent.” The words “Minnesota” or “Minnesota Patent” mean that the flour is made under the roller patent process somewhere in Minnesota. The words “Minneapolis,” “Minneapolis, Minn.,” “Minneapolis, Minnesota,” signify to the trade that the flour was made at a Minneapolis flouring mill. A dealer in Chicago, Ill., obtains from mills at Milwaukee, Wis., an inferior grade of flour, which he labels “Best Minnesota Patent, Minneapolis, Minn.,” and advertises as made at Minneapolis, Minn., with the result that the public is deceived into buying this flour under the belief that it is made at Minneapolis, and is defrauded, and the business of the Minneapolis millers is damaged. Held, that a court of equity may grant relief by prohibiting the fraud and preventing damage to the business of the Minneapolis millers. 82 Fed. 816, reversed.</p> <p>6. Same.</p> <p>The fact that one of the mills belonging to one of the Minneapolis millers is situated 10 miles from the city is not important when it is shown that such mill is an integral part of a Minneapolis milling plant, has the same machinery, is run in the same manner, grinds the same grade of wheat, and has always been considered as one of the Minneapolis mills.</p> <p>1. Same.</p> <p>Such objection, if important, should be taken by plea in abatement for the misjoinder of parties, and furnishes no good ground for not granting relief as to other complainants.</p>

<p>Trade-Mark — Used by Two Firms m Different Countries.</p> <p>Where a trade-mark is used by a manufacturer in England and also by a firm in the United States in which he is a partner, and its use began in both places at about the same time, and it came to identifying the article manufactured by the United States firm by use in its business for many years, and tlio English manufacturer retired from the United Slates firm, the right to use it passed to liis successors as part of the business, and he will not he allowed to use it in this country in a separate business of the same sort.</p>

Tins was a suit in equity by Edward L. Perry and others against the Severe Rubber Company for alleged infringement of letters pa-tent No. 462,278, granted November 8, 1891, to Edward L. Perry, for a steam-joint packing.

This was á suit in equity by the Thomson-Houston Electric Company against the Union Railway Company and others for alleged infringement of claims 2 and 4 of the Yan Depoele patent, No. 495,443, for a traveling contact for electric railways. The circuit court granted a preliminary injunction (78 Fed. 363), and the respondents have appealed.

<p>Appeal from tbe Circuit Court of tbe United States for tbe District of Connecticut.</p>

<p>1. Patents — Anticipation.</p> <p>Anticipation ¡should not he found in prior devices in the art to which a patent belongs, unless they are of such a character as to have furnished clear, if not unmistakable, suggestion of the improvement in question; and if the anticipatory suggestion comes from another art it should have loss significance, proportioned inversely to the distance from which it is brought.</p> <p>2. Same — Invention—String Wrappers.</p> <p>The Williams patent, No. 558,2-1J, for an improvement in string wrappers, consisting in cutting into the wrapper on both sides of the end of the string, so that the wrapper may he easily opened without tearing or injuring- the newspaper or oilier article wrapped therein, presents a patentable invention. 28 C. C. A. 325, 84 Fed. 197, reversed.</p>

<p>Patents — Construction of Claim — Infringement.</p> <p>The Ryan patent, No. 379,334, for an improvement in book binding, alleged to consist in having the leaves in small bunches or sections secured to the back separately and flexibly, the leaves being rendered flexible by. creasing them parallel to and a short distance from the back, construed in view of the patentee’s acquiescence in the rejection of broader claims, and held, to be entitled only to a narrow construction, and not to secure the exclusive right to use creased leaves in the manufacture of books.</p>

The Western Wheeled Scraper Company exhibited its bill in the circuit court alleging infringement by the defendants of certain patent rights secured by letters patent as mentioned in the opinion below.

<p>1. Maritime Contracts.</p> <p>Contracts to he entirely performed on land are not maritime contracts, though they may be preliminary to possible contracts for maritime transportation.</p> <p>2. Same — Admiralty Jurisdiction.</p> <p>A contract between the Owner of canal boats and brokers engaged in procuring freight, by which the brokers agree to keep an office in the city of Buffalo, and solicit freight for the canal boats, and provide such freight to the boats in the order of reporting at the broker’s office, and the boatman agrees to report there whenever in Buffalo, but does not agree to go there, so that all the contract is to he performed on land, is not a maritime contract, and is not cognizable in the admiralty courts.</p>

<p>1. NEGLIGENCE — PERSONAL INJURIES — LIABILITY OF MASTER AND OWNERS OF Vessel.</p> <p>It is the duty of the master of a vessel to provide a stevedore with a safe place in which to work, and to exercise ordinary and due care in keeping the premises reasonably secure against danger; and he is liable for an injury which is the result naturally to be expected from an act of his employé which could have been foreseen and guarded against by the exercise of ordinary •care.</p> <p>3. Same.</p> <p>Where an employe on a vessel placed an empty keg on the hatch covers, m such a position that an accidental jar caused it to fall in the hatchway and injure a stevedore, the master and owners are liable.</p> <p>3. Same — Pboximate Cause.</p> <p>The negligent placing of a freshly-painted keg on a pile of hatch covers to dry, in a position where a slight jar, caused by some one stepping on the hatch covers, causes it to fall down the hatch and injure a stevedore, is the-proximate cause of such injury, so as to make the ship liable, notwithstanding that the hatch covers wore negligently piled by the stevedore.</p>

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

<p>1. Maritime Liens — Maritime Contracts.</p> <p>A sale of coal, pursuant to which the coal is delivered to a vessel to be-carried as cargo under bills of lading to the purchaser as consignee, the-vendor having knowledge that the purchaser is engaged in the business of selling such coal for other than maritime purposes, is not a maritime contract; nor do the facts that the consignee owns such vessel and that a portion of such coal, after having been delivered to the consignee, is supplied by it to' such vessel as necessary fuel, serve to create or support a maritime-lien.</p> <p>2. Same.</p> <p>The question whether a maritime lien attached for the price of the coal must be determined on the facts and circumstances as they existed at the-time of its original delivery to the vessel, and cannot be affected by any subsequent application of the coal by the purchaser.</p> <p>(Syllabus by the Court.)</p>

<p>1. Shipping — LimitatxoN of Owner’s Liability — Alternative Prayer.</p> <p>The owner of an American steamer may, while denying all liability for any damage by reason of a collision, and consequent loss of cargo, make the alternative prayer that, if the court find the petitioner or steamer liable, the petitioner may then have the benefit of Rev. St. §§ 4283-4285, and the acts amendatory thereof, limiting the liability to the interest which the owner has in .the vessel and cargo.</p> <p>2. Same.</p> <p>Section 3 of the Harter act (27 Stat. 445), which refers to any vessel transporting goods “to or from any port in the United States,” applies to vessels engaged in commerce on the Bay of San Francisco, and between different ports on the bay.</p>

This cause comes here upon appeal from a decree of the district court, Northern district of New York, in favor of the libelants, twelve in number, who were severally owners of fourteen propellers or steam tugs which had rendered towage service to the dredge and her scows.

These causes come here upon appeals from decrees of the district courts in the Eastern and Southern districts of New York, respectively, upon the following facts: On February 4, 1896, the British steamer Lamington, 1,224 tons register, inward bound with a full Mediterranean cargo of fruit, stranded on the south shore of Long Island, about a mile east of Blue Point life-saving station.

This was a libel in admiralty by the owners of the schooner John R. Penrose against the schooner William J. Lipsett to recover damages resulting from a collision of the two vessels in Delaware Bay. The Lipsett was heretofore held to be solely in fault (81 Fed. 623), and the cause is now heard on the commissioner’s report on the question of damages.

Appeals from the District Court of the United States for the Southern District of New York.

<p>Collision — Tugs—Vessels in Tow — Negligence.</p> <p>While the steamtug Mead was taking the barge Pawtuxet from a slip in New York, on the East river, and while the, stern of the barge was still partially within pier 127, and her bow pointing a little north of east, and in the direction oí the Morrisania slioio, Transfer Tug No. 6, with a car float on her port side, struck the stem of the Pawtuxet, and injured her. Tug No. 6 and ear float had shortly before backed from a slip on the Morrisania shore, had straightened to the northward, with the intention of delivering the floats at a dock practically opposite the Pawtuxet. Hold, that the accident happened entirely from the negligence of Tug No. 6 in running too close to the Mead and Pawtuxet.</p>

<p>1. Assignment by Building and Loan Association — Authority or Share holders.</p> <p>The directors of a building and loan association have no authority, either under the general assignment statute of Kentucky or at common law, to make a valid assignment for the benefit of creditors, without authority from the shareholders, when the corporation is not in fact insolvent.</p> <p>2. Bei'ostng Directors — Invalid Election.</p> <p>The shareholders of a building and loan association cannot depose directors whose term of service has not expired, and elect a new board.</p> <p>8. Appointment of Receiver — Corporate Disorganization.</p> <p>The directors of a building association, without consulting the shareholders, made an assignment for the benefit of creditors, and delivered the corporate assets to the assignee. The shareholders repudiated the assignment, and elected a new board of directors, who elected new officers. The old officers and directors refused to recognize this result. Shareholders brought suit to set aside the assignment, and restore the assets to the corporation. If eld. that a receiver pendente lite should be appointed.</p> <p>4. Assignee’s Possession — Property in Possession of Court.</p> <p>Tinder Ky. St. § 70. requiring an assignee to give bond and state his accounts in a county court, assets in his possession ara not in the possession of the court.</p> <p>5. Petition for Direction of Court — Status of Trust Property.</p> <p>Where, under the Kentucky statute, an assignee petitions the circuit court for direction in the conduct of his trust and settlement of his accounts, such court does not thereby acquire possession or control of the trust property.</p> <p>6. Conflict of Jurisdiction — Different Issues and Relief.</p> <p>The pendency in a state court of a suit brought by an assignee for tbe construction of a deed of assignment made by a building and loan association, and the adjudication of the right under the deed of the different classes of shareholders inter sese, is no obstacle to the prosecution, in a court of the United States, of a suit by shareholders to annul the deed of assignment as invalid, and recover the assets from the assignee.</p>

<p>1. Insolvent Corporation — Lien on Judgment Creditors.</p> <p>When a corporation becomes insolvent,, and a court of equity has, on the filing of a bill by the proper parties, seized the property and appointed a receiver, a creditor who obtains a judgment at law after such hill is filed and receiver appointed, does not thereby acquire a legal or equitable lien on ihe property not covered by a mortgage.</p> <p>2. Mortgage — Lien on Logs at Mills.</p> <p>Where, by the terms of a mortgage executed by a corporation, it had the right to enjoy the mortgaged premises, to cut and remove logs for the mills, to manufacture lumber from them, and to pledge or sell thar lumber, when the corporation becomes insolvent, and a bill is filed and receivers appointed, the logs cut from the land and removed to the mills, and the lumber manufactured from such logs, are not subject to the mortgage lien.</p> <p>3. Insolvent Corporation — Distribution op Assets.</p> <p>W-.ore proceeds of mortgaged property of an insolvent corporation have been subjected to the satisfaction of the mortgage creditors, such creditors are entitled to a decree for any balance that may be found due them, and as to such balance they are on a par with other general creditors, and are entitled to their pro rata share of the funds on which there is no lien.</p>

<p>(Construction of a Will — Defeasible Estate — Death -without Issue.</p> <p>Testator, by a provision of his will, gave a fee absolute in certain property to his grandchildren, though containing no words of inheritance. In the next provision he stated “that the property willed by me to the said grandchildren should be held in common, and, if either of them should depart this life without leaving living issue, then and in that case the survivor or heirs of his body shall inherit all the property and estate devised to both of them.” JHeld, that under the rule in Indiana the latter words referred to a death during the life of the testator, and, both devisees surviving him, each ..tools an absolute estate in fee simple. 75 Fed. 775, reversed.</p>

<p>1. Domicile of Corporation — Principal Office.</p> <p>Where the place of the chief office of a corporation is not designated by its charter, vote of its stockholders, or resolution of its directors, it is where its stockholders and directors usually meet, where it elects its officers, and conducts its financial operations.</p> <p>2. Same — Change of Location.</p> <p>The general officers of a railroad company cannot, by changing the location of their offices for the more convenient dispatch of business, remove the principal office of the company from the place at which it has been established by its stockholders and directors.</p> <p>3. Mechanics’ Liens — Time of Furnishing Materials — Erecting Engines.</p> <p>Where a contract for furnishing engines provides for placing them in position'and for a 30-days test, the limitation within which a lien therefor may be perfected does not begin to run until they are placed in position, adjusted, and put in operation.</p> <p>4. Same — Engines Necessary to Operation of Railroad.</p> <p>Engines for the purpose of generating electricity for propelling cars are “engines necessary to the operation” of an electric railroad, within the meaning of Code Ya. 1887, § 2485, giving a prior lien to employes and persons furnishing certain supplies to transportation companies.</p> <p>5. Same — Materials and Labor Claims.</p> <p>Materials and labor furnished in the erection of car barns, train sheds, power and boiler houses, depots, and workshops, and rebuilding an hotel belonging to a railroad company, are not supplies necessary to the operation of such road, within the meaning of Code Va. 1887, § 2485, giving a prior lien for necessary supplies to transportation companies.</p> <p>6. Same — Perfecting Lien — Limitations.</p> <p>Where materials and labor are furnished to a railroad as they are from time to time ordered, and not in fulfillment of a single contract, the limitation within which a lien therefor may be perfected begins to run against each item at the time it is furnished.</p> <p>7. Same — Contractor or Laborer — Preferred Lien.</p> <p>One who lays the track, constructs the overhead line, and strings the feeder wire for an electric railroad at an agreed price per foot or mile is a contractor, and not a laborer, within the meaning of Code Ya. 1887, § 2485, giving a prior lien to certain employes and laborers.</p>

<p>1. Foreign Corporations — Certificate to Do Business — New York.</p> <p>Under Laws N. Y. 1892, c. 687, § 15, providing that “no foreign stock corporation doing business in the state without such certificate [of authority to do business] shall maintain any action in this state upon any Contract made by it in this state until it shall have procured such certificate,” the remedy is merely suspended until such time as the certificate is procured.</p> <p>2. Contract — Specific Performance.</p> <p>Where a contract provided for the transfer of a patent, for the organization of a corporation and carrying on business, and for cash subscriptions to a certain amount of stock within 60 days, the patentee having become an in-corporator, a director, and an officer, and attended directors’ meetings, he cannot refuse to carry out the contract because the whole amount of the cash subscriptions was not paid in within the specified time.</p>

This was an action at law by Fannie Gideon Hall against the Neder-land Life Insurance Company, Limited, on a policy on the life of Elbert Mills Hall. Verdict and judgment were given for plaintiff, and the defendant sued oat this writ of error. On January 10,1898, this court rendered an opinion reversing the judgment, and remanding the case for a new trial. 27 O. C. A. 390, 84 Fed. 278. The case is now heard on a motion for taxation of costs.

<p>In Error to tlie Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This writ of error challenges a judgment for $14,528 in' favor of the Fourth National Bank of St. Louis, the defendant in error, and against the Park Hotel Company, a corporation, the plaintiff in error, upon a promissory note in these words:</p> <p>. “St. Louis, Mo., Dec’br 3rd, 1894.</p> <p>“On February 1st, 1895, after date, I, the Park Hotel Co. of Hot Springs, Ark., promise to pay to the order of the Fourth National Bank of St. Louis, Mo., fifteen thousand dollars, for value received, with interest at the rate of eight per cent, per annum from maturity until date.</p> <p>“The Park Hotel Co.,</p> <p>“By Fd. Hogaboom, Pres’t.</p> <p>“Ed. Hogaboom.”</p> <p>The bank alleged in its complaint that this note was executed in renewal of a note of the hotel company of like amount, which was executed by it to the bank, for value received, on February 28, 1891, and which was extended from time to time, upon payment of interest, until December 3, 1894, when the note in suit was made in its stead. The hotel company denied that it made either of these notes; that it ever received any consideration for them; that it ever paid any interest on them; that they were ever extended at its request, or with its knowledge; denied that its president, Ed. Hogaboom, ever had any authority to make them; and averred that the entire transaction was one between Ed. Hogaboom and the bank, of which it never had any knowledge, and to which it never assented. At the close of the trial of the issues thus raised, the court below instructed the jury to return a verdict for the bank, and this charge is the error assigned. The essential facts upon which this instruction rests are these: In 1891 the Park Hotel Company was a corporation engaged in the construction and furnishing of an hotel, and afterwards in the operation of it, at Hot Springs, in the state of Arkansas; and Ed. Hogaboom was its president. On February 28, 1891, without paying the corporation any consideration therefor, and without the knowledge or consent of any other officer or agent of the hotel company, Hogaboom made a promissory note in this form:</p> <p>“St Louis, Fcb’y 28, 1891.</p> <p>“On «Tune 28, 1891, after date, for value received, X, the Park Hotel Go. of Hot Springs, Ark., promise to pay to the order of Ed. Hognboom llfleon thousand dollars, for value received, with interest at the rate of eight per cent, per annum from maturity until paid. The Park Hotel Go.,</p> <p>“By Ed. ITogal)oom, Pres’t.”</p> <p>—indorsed his name upon it, pledged, as collateral security for its payment, 606 shares of the stock of the State Savings Bank & Trust Company of Hot Springs, which he owned, and whose face value was $16,650, discounted it at the Fourth National Bank of St. Louis, and procured from that hank, and spent for his own benefit, the proceeds of the discount. He renewed this note, obtained extensions of the time of xjayment of the debt it evidenced, and paid the interest on it, and §1,500 of the principal, until it was finally evidenced by the note of December 3, 1894, in suit. The bank sent notice of the maturity of the various notes which Hogaboom made to the hotel company at Hot Springs: hut all these notices were received by Hogaboom, and none of the other officers or employes of the company were aware of this transaction, or of the existence of any of those notes, until about May 1, 1895, when one of the notice's fell into the hands of the manager of the hotel. In August of that year the manager informed the treasurer of the corporation of his receipt of this notice, and all the directors were notified of the existence of the note of December 3, 1894, early In the month of March, 1896. Between May 1, 189.5, and February 19, 1896, Hogaboom paid the Interest on, and obtained several extensions of the time of payment of, this note; and on that day he paid the bank .§1,500 of the principal of the debt, and gave it his three individual notes, for 84,500 each, payable in 30, 60, and 90 days from that date, respectively. The bank took these notes on account of the note in suit, but it retained the latter as collateral security for the payment of the three individual notes. In May, 1896, Hogaboom failed, and then the bank brought this action. On February 28, 1891, when the hank discounted the original note, Ilogahoom represented that he had authority to borrow §20,000 for the hotel company, and that he was borrowing the money which he obtained by the discount of the note of that date for that corporation; and the officers of the bank believed these representations, hut pursuant to the custom of that hank, in the words of the president, to “take the last indorser’s cheek for the proceeds of such a note, showing that he, as indorser or guarantor, obtained the money. He can’t go hack on us, and say that he did not receive a consideration for the indorsement,”— the hank placed the proceeds of the discount to the individual credit of Hoga-boom, and paid it out on his individual check. The hotel company never received any of the ia-oceeds, or any credit or benefit from any of the proceeds, of the transaction.</p>

<p>1. Usury — What Law Governs.</p> <p>When a citizen of North Carolina borrows money of a Virginia corporation, promising to repay the principal sum at the home office in Virginia, the question whether the contract is usurious must he determined by the Virginia law, though the loan is secured by a mortgage on North Carolina lands.</p> <p>2. Same.</p> <p>Where one borrowing money from a life insurance company takes from it, as a condition of making the loan, an endowment policy, and assigns it to the company, contracting to make monthly payments thereon, sufficient in the end to extinguish the loan, hut in the meantime to pay interest on the whole amount of the loan at the full legal rate, the transaction is usurious under the laws of Virginia.</p>

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

<p>Gaming Contracts — Dealing xn Fdtuhks.</p> <p>A contract for the future delivery of cotton, made merely to speculate in differences on the rise and fall of the price without any intention to deliver or receive cotton, is void as a gaming contract, not only under Code Ga. § 3671. hut also under the general law as announced by the supreme court of the United States.</p>

<p>1. Extradition — Evidence—Certificate of Diplomatic Officer.</p> <p>Where the certificate required hy the act of August 3, 1882 (22 Stat. 216), to depositions, warrants, or other papers offered in evidence in extradition cases, is signed hy the charge d’affaires ad interim, the court will take judicial notice that such charg'd was, at the time such certificate was given, the principal diplomatic officer of the country where it was given.</p> <p>2. Same — Requisition and Mandate.</p> <p>A requisition from the foreign government and mandate from this government are not necessary, under Rev. St. § 5270, to initiate proceedings in extradition before a committing magistrate, and it is sufficient if it appears that the complaining witness is acting for the foreign government.</p> <p>3. Evidence — Dying Declaration.</p> <p>It is not necessary that the declarant should have said, in so many words, that she was speaking under a sense of impending death, hut it is sufficient if it satisfactorily appears that the dying declaration was made in the knowledge of impending death.</p>

<p>This was a suit in equity by the Deering Harvester Company against the Whitman & Barnes Manufacturing Company for alleged infringement of a trade-mark.</p>

<p>This was a suit in equity by the E. Heinisch’s Sons Company against Carl F. Boker and others to enjoin alleged infringement of a trade-mark, and unfair competition in trade.</p>

<p>1. Patent — Prior Invention — Multiple Switchboard.</p> <p>The Firman patent, No. 252,576, for a “multiple switchboard for telephone exchanges,” granted January 17, 1882, was not anticipated by the British patent, No. 4,903, issued to Scribner May 14, 1880; the evidence showing that Firman reduced his invention to practice before the first step was taken to secure the Scribner patent.</p> <p>2. Same — Novelty.</p> <p>Claim 1 of ¡he Firman patent, No. 252,576, for “the combination of two or more switchboards at the central office exchange system, to each of which the same telephone lines are connected, whereby any two of those lines may be connected together upon either of the multiple switchboards,” is not void for want of novelty because of the prior state of the art, as shown in the British parent, No. 13,487, for a telegraphic dial switchboard, and the strap switchboard, or the switchboard in use in New Haven and Meriden, Conn., in 1878.</p> <p>8. Same.</p> <p>Claim 2 of the Firman patent, No. 252,576, for “the combination of two or more multiple boards, to which the lines of the terminal stations are connected, and means are described whereby the switchman may readily ascertain what lines are in use,” is void for want of novelty.</p> <p>4. Same — Infringement.</p> <p>The multiple switchboard described in claim 1 of the Perrin patent, No. 815,332, is substantially the same as the invention described in claim 1 of the Firman patent, No. 252,576; and its use, although in combination with the automatically operated visual indicator, is an infringement of that patent.</p> <p>5. Same — Injunction.</p> <p>After a trial upon the merits in a case which puts in issue the validity of a patent and the question of an infringement, the complainant is entitled to a decree showing what issues were decided in his favor, and to an injunction against infringement, though defendants discontinued their infringement after the suit was commenced.</p> <p>6. Depositions — Time of Taking.</p> <p>Depositions not taken within the time prescribed by equity rule 69 cannot be read in evidence, when timely objection is made.</p>

<p>Patents — Novelty in Invention — Glass Chipping.</p> <p>The Evans patent, No. 494,999, for alleged improvements in processes of chipping glass, consisting in covering the surface with a film of soap or other coating', applying thereto a pattern of flexible material, then submitting the glass and pattern successively to the sand blast and hot chipping compound, and finally removing the pattern and chipping compound while the latter is-in a liquid condition, is void for want of novelty and invention, in view of the prior state of the art. 28 €. C. A. 24, 83 Fed. 700, affirmed on rehearing. Showalter, Circuit Judge, dissenting.</p>

<p>Maritime Liens — Wharfage—Vessel Used for Storage.</p> <p>Although a maritime lien may attach to a domestic vessel for wharfage furnished in the ordinary course of navigation, yet no such lien arises where the vessel has been withdrawn from navigation, and is kept at the wharf for the mere purpose of storage.</p>

<p>Cobusion — Unuawtoi, Navigation.</p> <p>The tug V., with a dumper on each side, in proceeding down the East river kept about 200 feet from the Brooklyn shore, in order to escape the ilood tide, — a usual custom. The W., a tug with a barge on a hawser, was going up the river, about 450 feet from the Brooklyn shore. In rounding the bend at Fulton Ferry, neither gave a signal; and (lie V. headed well Into the stream, and collided with the barge, the W. making no effort to avoid her. Held, that fhe V. was at fault, in navigating too near Hie shore, and the W. in not attempting to go to port, so as to avoid her.</p>

<p>1. Shippists — Negligence—Starting Steamer.</p> <p>Where a steam lighter lying in the Atlantic hasin in the city of Brooklyn, with its stem two to six feet from the South Central pier, in going slightly forward caught a hoy, who was playing on some spiles projecting from under the pier, and crushed him, the owner is not liable, as he was not bound to examine the water between the vessel and the pier before starting.</p> <p>2. Same — Inspectors’ Bules — Whistle.</p> <p>Inspectors’ rules 5 and 8, and the instructions following rule 8, requiring steamers navigating in crowded channels or in the vicinity of wharves to sound their whistles, have reference to the meeting and movement of vessels, and not to a vessel lying close to a pier, and a little boy playing on some logs in the water between the vessel and the pier, and hidden from view.</p>

<p>1, Negt.igence — Personae Injuries — Moving Barges.</p> <p>Where a barge was being removed from one wharf to another, by a rope, in a careful and customary manner, and a passing tug, not knowing that a rope was being used, caught it in its wheel, and carried it away with such suddenness that a boy on the barge became entangled In the coll,' aiid his leg broken, neither party is at fault</p> <p>3. Same — Dangerous Premises — Ciiii/dren.</p> <p>The rule that the owner of dangerous premises or machinery is guilty of negligence in allowing young and inexperienced persons to come and remain within the influences of such danger applies only where the injury complained of resulted from a danger commonly incident to the premises, and the owner Is not required to use affirmative care in guarding- the child from a danger arising entirely from extraneous causes.</p>

TMs was a libel in admiralty by John L. Smith and others against the steam tug Bronx to recover damages for the stranding of libel-ants’ schooner Hooper, while in tow of the Bronx. The cause was heard on exceptions to the assessor’s report in respect to the dam ages. The schooner Hooper went ashore on Plum Island a little after high water, on the evening of July 4th. The accident happened through the fault of the tug Bronx, which had undertaken to tow her into Newburyport.

<p>Collision— Right of Way — Signals.</p> <p>When a vessel is pursuing a course which the law gives her a right to take without the assent of another vessel, the whistle consistent with that course is to be regarded as a positive indication of her intention to pursue it. But, where a vessel has no right to pursue a particular course without the assent of the vessel she is meeting, the whistles she uses to obtain that assent are merely invitations to an agreement contrary to the usual mode of passing, and are not to be taken as a distinct indication that, on failure to obtain such assent, she will violate the rules of navigation, at least until there is something additional in her conduct to justify such an inference.</p>

This is an action brought in a state court by Lathrop E. Reed and others, partners as Reed & Sherwood, against the Northern Pacific Railway Company and others. Defendant Reed removed the cause to this court, and it is now heard on a motion to remand.

<p>Appeal irom the Circuit Court of the United States for the District of Kentucky.</p> <p>Bill was filed in the circuit court to foreclose a mortgage and trust deed, executed by appellant in favor of appellees, as trustees, to secure payment of certain bonds issued and sold by appellant company, a corporation organized under the laws of Kentucky, and a citizen of that state. Complainant Brigel was a citizen of Ohio, and Murray a citizen of New York. The bill sought a sale of the property covered by the mortgage in bar of the equity of redemption. At the time of filing the original bill, there were creditors of the defendant, some holding claims for taxes paid, and others being judgment creditors with executions levied, and claiming junior liens thereby under the laws of Kentucky. A number of these creditors were made parties to the original bill, and it appeared from the record that the citizenship of one or more of them was of the same state with that of one of the complainants, and the citizenship of others was alleged to he unknown. The case having been brought before this court on appeal, the final decree was reversed for lack of necessary diverse citizenship to support the jurisdiction of the court, as the record then was. 31 TI. ¡4 App. 005, 14 C. C. A. 577, and 07 Fed. 625. When the case went back, the circuit court permitted am amendment of the bill, so as to dismiss the bill as to all parties except the appellees and appellant, so as to make the suit one of foreclosure only between the trustees as complainants, and the mortgagor company as defendant. A sale In bar of the equity of redemption was specially prayed for in both original and amended .bills. Between the date of filing the original bill and the amendment thus allowed, Murray, one of the trustees, changed his citizenship from New York to Kentucky, and (his fart, was set up in a plea, to the amended bill, raising objection thereby to the jurisdiction of the court. This plea, having been set down for hearing, was overruled by the court, and the defendant answered the amended bill. The case was then heard again upon a master’s report as to debts, liens, and priorities, various creditors having intervened by petition, stile was made under orders of the court, and from the final decree confirming the sale the case is again brought to this court by appeal. The opinion of the court disposing of the plea is published in 73 Fed. 13.</p>

The appellants filed claims for allowance against the funds in court in the consolidated causes against the Distilling p. 578, 23 O. C. A. 415, and 77 Fed. 700. (1) The claims of Dennehy & Oo. were presented by petition in their name, and consisted of 91 written instruments, called rebate certificates or vouchers, issued by the Distilling & Cattle-Feeding Company to Charles Dennehy & Co., aggregating the sum of $5,238.23.

<p>Condemnation — Remote and Speculative Damages.</p> <p>In a proceeding to condemn a right of way for a boat railway over defendant’s land, the injuries likely to result to his fishing grounds are too conjectural to be the basis of an award; and the possibility of its construction being followed by a change in the track of a railroad company, so as to injure defendant’s shipping facilities, is too remote to be considered as a consequence of the proposed use of the land.</p>

<p>This is a suit in equity by Ferdinand Hansen against the Baltimore Packing & Cold-Storage Company, Edward T. Le Clair, and John F. Locke. Heard on the pleadings and proofs.</p>

This suit was brought by the appellants, .Toel C. Green, John G. Brown, and T. F. Main, against the appellees, William J. Turner, William H. Timlin, and Howard Morris, to enforce performance of a promise in writing made by the appellees to Moore & Hibbert, a firm composed of L. A. Moore and Nathaniel Hibbert, to pay an indebtedness of the latter to the appellants.

<p>1. Specific Performance — Uncertainty.</p> <p>The witnesses for the complainant testified to a verbal agreement by which the defendant granted it the use of a certain bridge, passenger station, and tracks. The complainant was unable to show the terms on which it was to use the station, or the amount of the track that was granted, except the right to use all necessary terminals. The general superintendent of the defendant, with whom the agreement was alleged to have been made, contradicted the testimony, while the documentary evidence pointed to the absence of any definite arrangement between the parties. :Held, that no definite agreement capable of being enforced was entered into.</p> <p>3. Statute of Erauds — Fraud of Real Estate — Possession.</p> <p>Possession sufficient to take a. verbal grant of - the use of lands out of the statute of frauds must be open, notorious, and exclusive, taken under the contract, and referable to it; and where one is already in possession a continuance under the contract is not sufficient, nor is possession in common with the grantor.</p>

<p>1. Carriers — Breach of Contract — Interstate Commerce Law.</p> <p>Where the agent of a connecting carrier, hy .mistake, has given to a shipper an unusually low rate on a shipment of a special and unusual character, and the initial carrier, without knowledge of such rate, breaks its contract of carriage hy sending the goods over a different road from that prescribed in the bills of lading, so that the shipper is compelled to pay a much higher rate of freight, the initial carrier cannot escape liability for damages on the ground that the rate given was in violation of the interstate commerce law.</p> <p>2. Same — Measure of Damages.</p> <p>In such case the road which willfully misrouted the goods is liable for the entire difference between the rate agreed upon and that which the shipper was compelled to pay, and its liability will not be limited to a lesser sum on the theory that it is only liable for such damages as might reasonably have been in contemplation of the parties when making the contract. 81 Fed. 277, reversed.</p>

<p>1. Special Master — Refusing to Adjourn.</p> <p>It is not an abuse of discretion for a special master to refuse an adjournment for the purpose of permitting a party to have executed and returned certain interrogatories, when the cause has been adjourned several times since the close of the evidence, and no such application has then been made.</p> <p>2. Same — Court Hearing Additional Testimony.</p> <p>It is not error for the court, in considering a special master’s report, to refuse to consider certain depositions that had not been used before the master.</p> <p>3. Same — Findings,</p> <p>Where a rule is entered, on the consent of all the parties, referring a cause to a special master to hear and report the facts and the law involved in the whole case, his findings will not be disturbed unless clearly in conflict with the weight of evidence.</p> <p>4. Appeal — Point not Mentioned in Assignment of Errors.</p> <p>The court will not consider on appeal a question not raised before the lower court, and not mentioned in the assignment of errors.</p>

Sur rule for judgment for defendant notwithstanding verdict. This suit was brought by the plaintiff to recover from the defendant the value of certain work done by him in part performance of a contract entered into between the plaintiff and defendant for the roofing and tiling of a certain building, and also to recover the profits Unit the plaintiff claimed he would have made had the work been completed by him.

<p>1. Motion for New Trial — Surprise.</p> <p>Whore, three months after the entry of judgment, a motion is made for a new trial on the ground of surprise at the testimony of a witness, and that the only person conversant with the facts sworn to by such witness was out of the state at the time of the trial, and an affidavit of such absent person is presented contradicting the testimony of the -witness, and it appears that some of the material statements in such affidavit are in contradiction to his deposition taken in another cause concerning the same transaction, the motion will be denied.</p> <p>2. Brin, of Exceptions — Expiration of Time.</p> <p>The time to obtain a bill of exceptions will not be extended after the expiration of the term succeeding the trial term.</p>

Plaintiffs in error alleged in their petition that the defendant in error was a bank of discount and deposit organized under the law of Indiana with a capital stock of $25,000, divided into 250 shares; that plaintiffs in error owned 100 of these shares, for which $100 per share had been paid by one McConnell; that they had owned these shares since the 2d day of January, 1896; that on August 1, 1896, the state auditor directed an assessment of 60 per cent, to malte good an…

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

<p>1. Federal Courts — Following State Decisions.</p> <p>In cases depending upon the constitution or statutes of a state, the federal courts will adopt the construction of the constitution or statutes given by the highest courts of the state, hut are not required to follow the decisions of the state courts where the question is one of general law.</p> <p>2. County Agents under Void Statute — Validity of Contracts — Estoppel.</p> <p>Road commissions appointed under Sess. Laws Kan. 1887, c. 214, since declared unconstitutional, were without authority; and road improvement certificates issued by them are not binding on the county, and it is not es-topped to' deny their validity because of having received the benefits of the labor and materials for -which they were issued.</p> <p>3. Improvements Made under Void Statute — Special Taxes Therefor Collected —Estoppel.</p> <p>Where roads were improved under Laws Kan. 1887, c. 214, before it was declared unconstitutional, and the county has collected money from property owners in the vicinity of the improvements, to pay the improvement certificates, it holds such money as agent or trustee of the certificate holders, and both it and the property owners are estopped to deny its liability therefor.</p> <p>4. Review on Error — Motions for New Trial.</p> <p>To grant or refuse a new trial rests in the sound discretion of the federal courts, and their decisions thereon are not reviewable on error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisana.</p> <p>This action was instituted in the circuit court on the petition of Mrs. B. W. Bowen, wife of Reuben D. Bowen, and of said Reuben D. Bowen, each citizens of the state of Texas, and therein it was averred as follows: “That the estate of E. J. Hart, deceased, now being administered in the civil district court for the parish of Orleans under the number 45,308 of the docket thereof, and the commercial' firm of E. J. Hart & Co., and Mrs. Juliana Hart, widow of said deceased, Miss Mary T. Hart, a feme sole of full age, Edmund J. Hart, Mrs. Julia H. Hall, widow of Charles K. Hall, deceased, John B. Hart, W. H. Jewell, Mrs. Henrietta H. Gordon, wife of W. A. Gordon, the individual members of said firm, each and all of said defendants being citizens of the state of Louisiana, and domiciled in this city and parish, are each justly and truly indebted in solido unto petitioners in the full sum of eighteen thousand one hundred and thirty-five dollars ($18,135), with interest at the rate of six per cent, per annum, payable monthly, on ten thousand dollars from March 1, 1896, until paid, and on eight thousand one hundred and thirty-five dollars from April 1, 1896, until paid, being for $18,122.13 your petitioner Mrs. B. W. Bowen has on deposit with said firm of E. J. Hart & Co. and a balance of $12.87 to her credit on an open account with said firm. Petitioners aver that E. J. Hart, deceased, as aforesaid, was a member of said firm of E. J. Hart & Co., and a citizen of the state of Louisiana, up to the time of his death, and that said firm and the business thereof has since been carried on and conducted by the other defendants hereinbefore named; that for a number of years previous to the death of the said senior member-of said firm, and to the present time, your petitioner Mrs. B. W. Bowen has kept' a deposit account with the said firm upon the condition and with the agreement and stipulation -that the said E. J. Hart & Co. should allow and pay her monthly interest at the rate of 6 per cent, per annum on the amounts to her credit both on her deposit and on her open account; that ever since July 27, 1895, the amount to the credit of your said petitioner Mrs. B. W. Bowen on her deposit account with said firm has been, and is now, $18,-122.13, and that up to March 1, 1896, the said firm paid to her each and every month the interest due thereon as stipulated and agreed, and she was also paid by said firm the interest on eight thousand one hundred and twenty-two and 13/ioo dollars ($8,122.13) of her deposit credit for the month of March, 1896. and up to April 1, 189Ó, but she has not been paid any interest whatsoever since April 1, 1896, although the same has been frequently demanded from said firm. Further, petitioners aver that your petitioner Mrs. B. W. Bowen has a right to withdraw the said deposit, and demand a settlement from said E. J. Hart & Co., at any time, and that the full amount of said $18,135 was due and payable to her by said E. J. Hart & Co. as soon as demanded from them, and she has rpade due and frequent demand upon said E. J. Hart & Co. for the same, but without avail, and the said E. J. Hart & Co. still refuses and neglects to pay to petitioner any part of the amount so due to her or even the interest thgreon. Further, petitioners aver that the said indebtedness of said firm belongs to-your petitioner Mrs. B. W. Bowen individually, and 'is her separate property.” The petition closed with a suitable prayer for judgment. To this petition all the defendants appeared by counsel, and filed exceptions on the ground of vagueness and indefiniteness, and for grounds assigned as follows: “(1) That, although it is alleged in the body of the petition that the debt claimed is due to Mrs. B. W. Bowen individually, the action is brought in the name 'of hoih K. D. Bowen and his wife, Mis. B. W. Bowen, and the prayer is for judgment in favor of both said petitioners, and thus defendants are not advised who is the real plaintiff, and in whose favor judgment is claimed. (2) That, although if. appears on the face of the petition that Mrs. B. W. Bowen is a married woman, and that the deposit account alleged therein was kept with her as a married woman, yet it is alleged that the said indebtedness is her separate property, and no fact whatever is alleged upon which this allegation is based, or which would take this claim out of the rule and presumption of law that all property acquired during marriage by either spouse belongs to the community of acquets and gains subsisting between husband and wife. (3) That in other respects the allegations of said petition are so vague and indefinito that defendants cannot safely answer thereunto.” On the hearing of these exceptions the court ordered that they be “maintained so as to require the plaintiffs to amend their petition so as to pray for judgment in the name of the wife, and thereupon the plaintiffs were allowed to amend their petition accordingly.” No formal amendment appears to have boon made, but thereafter the action proceeded the same as if the husband, Reuben D, Bowen, had been eliminated as a party from the ease. The executors of E. J. Hart, deceased, answered with a special defense to the effect that the claim sued on was not the separate property of Mrs. B. W. Bowen, the plaint iff, but was a claim belonging to the community of acquets and gains subsisting between said Mrs. Bowen and her husband, and asserting that Mrs. Bowen had no right or power to sue on said claim or stand in judgment thereon; and generally they answered, alleging as follows: “That prior to the death of E. .T. Hart, Sr., the firm of E. J. Hart & Co. existed and was composed of E. J. Hart, Sr., and E. J. Hart, Jr.; that at the death of E. J. Hart, Sr., which occurred on March 8, 1895, the said firm was dissolved, and the business thereof was continued by the surviving partner, E. J. Hart, Jr., as liquidating partner, and for purposes of liquidation only; anil that the succession of E. J. Hart, Sr., was only bound for the debts of said firm existing at the date of his death, and for debts subsequently Incurred for legitimate purposes of liquidation or inuring to the benefit of said firm in liquidation. That on March 8th, 1895, (he death of E. J. Hart, Sr., Hie account of Mrs. B. W. Bowen showed that she was a creditor of said firm only in the sum of -85,133.71; that thereafter said account was continued on the hooks of the firm in liquidation, and numerous items of debit and credit were enteral thereon, resulting in a final balance ns shown by said books in favor of Mrs. B. W. Bowen of the sum claimed in the petition herein, viz. 818,135; that with regard to all said items (save one, which will hereafter be specially referred to) these respondents, while net undertaking to deny that they are charges which may he binding on the succession of E. J. Hart, yet say that it is their official right and duty to require due proof of such liability before judgment shall he rendered against said succession therefor; that the excepted item above referred to is a credit of 810,000 entered on said account on the 27th of July, 1805, which said credit is claimed herein as a deposit, whereas no such deposit was made, but the same is a simple transfer to the account of Mrs. B. W. Bowen of an alleged credit standing on The hooks of the firm in liquidation in favor of her husband, It. I). Bowen, which transfer was made by order of her said husband; and respondents deny that said It. T). Bowen was entitled to any credit whatever, and aver that the credit in favor of Mrs. B. W. Bowen was without consideration, and was not binding on the succession of E. J. Hart. Respondents aver that from 1885 down to the death of E. J. Hart, it. I). Bowen had been an employe of E. J. Hart & Go.; that prior to January, 1890, he had been employed under an agreement to pa.y him commission on the goods sold by him, and that from and after January, 1890, he was employed at; a fixed salary of 8150 a month; and that the aforesaid remuneration for his services was duly and fully paid him; that from the 3d of October, 1895, the said R. 1). Bowen kept a continuous running account with the firm of E. J. Hart & Co., and at the death óf E. J. Hartj 'Sr., said account showed a balance due by said R. E>. Bowen of about $12,000; that after said death, as respondents are informed, said R. D. Bowen made a claim upon the liquidating partner for additional remuneration for his services during the entire term thereof from 1S85 down to July, 1895; that said claim was based on noncontract of the firm of E. J. Hart & Co., and on no legal obligation of said firm; that, nevertheless, the liquidating partner, E. J. Hart, Jr., for the reasons assigned in his separate answer herein, allowed said claim, and permitted a credit of the enormous sum of $19,228.43 to be entered on the books to the credit of R. D. Bowen, thereby making him appear on said books as a creditor of said firm, whereas he was and is a large debtor; that shortly thereafter the said R. D. Bowen, who remained in the employ of the liquidator, ordered the transfer of $10,000 from his account to the account of his wife, Mrs. B. W. Bowen, and the same forms a part of the amount claimed in 'this suit. Now, these respondents aver that the succession of E. J. Hart is in no manner bound by the aforesaid transactions, and that the said item is not due by said succession or by the firm of E. J. Hart & Co., in liquidation.”</p> <p>Several of the heirs of E. J. Hart, deceased, by the same counsel, filed an answer specially denying that they had ever been members of the firm of E. J. Hart.& Co., and adopting all the special defenses to the plaintiff’s claim set up in the executors’ answer. E. J. Haft, the surviving member of the firm of E. J. Hart & Co., and an heir to E. J. Hart, deceased, filed a separate answer, adopting all the special defenses set up by the executors, and otherwise alleged as follows: “Further specially answering, this respondent says that true it is, as set forth in the answers of the executors above referred to, that this respondent, acting solely in his capacity of liquidating partner of the firm of E. J. Hart & Co.', did consent to the entry on the books of said firm of a credit in favor of R. D. Bowen of $19,228,43 on July 26, 1895; that this consent was given at the pressing solicitation of said R. D. Bowen, and upon his representations as to the value of the services which he had rendered the firm, and as to the inadequacy of the remuneration which he had received, and on his representation that respondent’s father, during his life, had often indicated his purpose at some future time to make him an additional allowance for said past services, and that, had he lived, ho would have done so. Respondent, at that time, was of the opinion that the services of R. D. Bowen had been inadequately remunerated, and he was aware that said Bowen had frequently importuned his father for an additional allowance, and that his father had put him off with promises that he would consider the matter, and determine about it at some future time; and, although there was no legal obligation, he then believed that, if his father had lived, he would, in a final settlement with said Bowen, have made him some additional allowance for his past services. Under these circumstances, and to put an end to Bowen’s importunities, respondent consented to the.entry of said credit; but both Bowen and resDondenfc well knew that respondent was acting solely as liquidating partner, and that as such he had no power to bind the firm by creating a debt for past services, and that the validity and effect of said entry would depend upon its approval by the executors and heirs of E. J. Hart, or upon proof that it was a legal obligation of the firm, if contested by them. Respondent further says that it was well known and understood by Bowen that in making said entry respondent did not assume, or intend to assume, any separate or personal obligation therefor, but only such obligation as would result from his interest in the firm in case it should be approved by the other parties in interest, or should be maiñtóined as a legal obligation of the firm, and respondent says that he was only a salaried partner in said firm, and had no interest therein except as one of the heirs and legatees of his father. Respondent further says that the transfer of $10,000 of said credit by order of R. D. Bowen from his account to the account of his wife did not confer upon the latter any rights which R. D. Bowen did not have, and that her right to recover to the extent of said $10,000 depends upon proof by her that the claim represented thereby was a valid and legal obligation of the firm of E. J. Hart & Co. to R. D Bowen. Respondent specially denies that he is in any manner indebted for said sum, or for any other portion of plaintiff’s claim, unless the court shall find the same to be an obligation of the firm, and equally binding upon the succession of E. J. Hart; and that he Is entitled to avail himself of all the defenses which have been set up in the answer of the executors which be has herein-before set up and adopted as a part of his answer. Respondent further says that since the entry of the credit of $39,2:19.43 to the account of It. X). Bowen, he has discovered various facts and transactions of said Bowen while In the service of E. ,T. Hart & Co. which materially affect the value of his servicies, and the meritoriousness of his equitable claim for additional remuneration, and that, if he had known of these facts at the time, he would not have consented to said entry; and he further says that, while he then believed that his father, if living, would have made him some allowance on final settlement, he now believes that, if these facts had been made known to him, his father would never have done so.”</p> <p>Upon the issues made by those pleadings the parties went to trial before a Jury, and the result was a verdict by direction of the trial Judge in favor of the plaintiff and against all the defendants. ' The defendants, all joining, sued out this writ of error, assigning errors as follows; “(1) The court erred in reopening the case of plaintiffs after the plaintiffs had formally closed their case, and after counsel for defendants had opened the case for defendanis, and in then permitting the plaintiffs to offer further evidence on the question of paraphernality of the claim of the plaintiff, upon which question no evidence had been offered by plaintiffs before they closed their case, all as fully recited in hill of exceptions No. 1, signed by the judge, and hereby referred to and made part of this assignment of errors. (2) The court erred in making the charge to the jury in refusing to make each and every one of the special charges requested by the defendants, being the twenty-three special charges stated at length in bill of exceptions No. 2, signed by the Judge, and herein filed, which said bill of exceptions" is hereby referred to, and made part of 'this assignment. (3) The court erred in stating to the jury that the evidence in the case established nothing that sustained any defense to Sie claim of plaintiffs, and in directing the jury to find a verdict for the plaintiffs,' which action of the court is fully set forth in hill of exceptions No. 3, signed by the judge, and herein filed, which said hill of exceptions is hereby referred to, and made part of this assignment. (4) The court erred In entering judgment in favor of the plaintiffs and against these defendants.”</p>

<p>1. Master and Servant — Injury to Shaman— Contributory Negligence.</p> <p>Libelant, an able seaman, while painting a mast, fell to the deck and was injured. While doing the work he was seated in a boatswain’s chair suspended by a line passing over a block aloft, the loose end being fastened by a toggle within his reach, and by means of which he was required to lower himself from time to time as the work proceeded. The appliances were arranged by himself. The evidence left in doubt the exact cause of the accident, but it resulted from the slipping of some of the fastenings, and not from the breaking of any of the parts. Held, that libelant was guilty of contributory negligence.</p> <p>2. Same — Negligence of Both Master and Servant — Division of Damages.</p> <p>Libelant, a seaman, was required to go aloft and paint a mast. He-was furnished with a boatswain’s chair, a block, a rope, and a toggle for fastening the loose end of the line, by means of which he was required to lower himself from time to time while proceeding with the work. By reason of the slipping of the fastenings of the line the chair fell and libelant was injured. Held that, the vessel .being in port, where no urgency existed, the master was negligent in furnishing a rope which, by reason of its newness, was so stiff as to be difficult to fasten -securely with a toggle of the length supplied, and that, under the rule in admiralty requiring the division of the damages in proportion to the negligence of the master and servant respectively, libelant was entitled to recover one-half his actual damages.</p> <p>3. Damages fob Peksonai, Injury — Excessive Award.</p> <p>Pour llionsand dollars is not excessive as an award covering one-half the actual damages sustained by an able seaman by reason of an injury which necessitated the amputation of one of his legs below the knee.</p>

<p>1. Power of A.ttornby — Construction—Authority to Compromise Suit.</p> <p>A power of attorney given by a plaintiff in a pending suit, which empowered the agent “to carry on and conduct to Anal consummation, or to compromise” the case, and all damages or demands therein claimed in such manner and on such terms as to him might seem expedient, does not authorize the agent to withdraw the litigation from the court in which it is pending, and hy agreement with the defendants to create a special tribunal to determine the rights of the parties. The power given to compromise implies the exercise by the agent of his own judgment as to the terms accepted, and cannot be delegated by the agent to any other person or tribunal.</p> <p>%. Same — Exercise op Power — Unusual and Unreasonable Settlement.</p> <p>Under a power of attorney authorizing an agent to compromise a pending suit, an agreement by the agent to a method of settlement which is unreasonable and unusual in its terms, and unfair, is not binding on the principal.</p> <p>3. Reference — Conduct of Hearing — Notice of Taking of Evidence.</p> <p>The taking of evidence by referees without notice of the time or place to the parties, or the conducting of private inquiries by a referee regarding matters involved, outside of the hearing, vitiates the award or findings.</p> <p>4. Same — Reference under Stipulation Costs.</p> <p>Where referees were appointed, and entered upon their duties, under a stipulation between the parties which provided that their fees should be a stipulated sum for each session between certain hours, to be paid by the successful and taxed against the losing party, the successful party cannot recover from the losing party for fees paid the referees, in the absence of proof as to the number or length of sessions held, or that any fees were taxed against the defendant.</p>

In June, 1893, Li Sing, then a resident of Newark, N. J., returned to China, and took with him a certificate issued by the imperial government of China at its consulate at New York, and signed by its consul, that he was permitted to return to the United States, and was entitled to do so, and which furthermore styled him a '“wholesale grocer.” This certificate was viséed in Hong Ivong by the United States consul on June 27, 1898, when Li Sing was about to return to this…

This was an application by George Borgfeldt & Co. for a review of a decision of the board of general appraisers reversing the action of the collector in classifying for duty certain imported goods. The court below affirmed the decision of the hoard, and the United States have appealed.

<p>1. Customs Administrative Act — Declaration by Consignee.</p> <p>Section 1 of the customs administrative act (1 Supp. Itev. St. p. 748), providing that all imported merchandise shall he deemed the property of the consignee, was intended to prevent, frauds upon the government arising from collusive transfers, and confers no right upon a mere consignee to make a declaration as “owner” under section 5, hut he must make the declaration as consignee, and in the declaration must state truly the name of .the owner.</p> <p>2. Same — False Declaration — Indictment.</p> <p>In an indictment under section 6 of the customs administrative act, relating to knowingly mailing- any false statement in a declaration for entry, an averment that the defendant “willfully declared that he was the owner of the goods, whereas in fact he was not the owner, as he then and there well knew,” is sufficient upon demurrer.</p> <p>3. Same — Intent to Defraud.</p> <p>An intent to defraud the United States is not an essential ingredient of the offense constituted by section 6 of the customs administrative act.</p> <p>4. Same — Filing Declaration.</p> <p>No offense is complete under section 6 until the false declaration there referred to is filed or offered to he filed with the collector when making or attempting to make entry of the goods. •</p> <p>5. Same — False Declaration — Frauds in General.</p> <p>Section 6, specifically providing the punishment for false statements in declarations for entries, and providing a heavier punishment than is imposed hy section 9 for frauds in general, must he held to apply exclusively to such false statements, and an indictment for that particular offense cannot proceed under section 9.</p>

<p>Patents — Separable Pulleys.</p> <p>The Dodge & Philion patent, No. 260,462, for an improvement in separable pulleys; construed on appeal from an order granting a preliminary injunction, and held, that infringement was not so clear as to warrant the court below in granting such an injunction. 85 Fed. 971, affirmed on application for rehearing.</p>

These were two suits brought by the American Carpet-Lining Company against Joseph H. Beale and others; the first being upon letters patent No. 74,328, issued February 11, 1858 (reissue No. 3,247, dated December 29, 1868), for machines for sewing carpet linings; and the ■second upon letters patent No. 86,057, issued January 19, 1869, to Felix P. Canfield and Joel F. Fales, as assignee of said Canfield, for an .improvement in sewing machines for sewing parallel seams.

<p>1. Maritime Liens — Admiralty Jurisdiction.</p> <p>A. flatbcat, with a iiile driver and its engine erected thereon, which fe' mainly used in constructing bulkheads for the erection of channel lights, and which is also employed in transporting materials nsed in ihe work (being towed by a tug for tills purpose), is to bo classed as a “vessel” within the maritime jurisdiction, and subject to maritime liens.</p> <p>2. Same — Seamen’s Wages.</p> <p>Persons employed upon such a boat, who assist in moving her about, and who also work the pile driver and are engaged in constructing the bulkhead, are to he regarded as rendering maritime services, so as to give them alien on the vessel for their wages.</p>

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

<p>Internaij Revenue — Taxation op Spirits — Soakage.</p> <p>ruder Rev. St § 3248. declaring it to be the true intent and meaning of internal revenue laws that all “distilled spirits, spirits, alcohol, and alcoholic spirit,” shall be subject to the tax, the soakage of a barrel* of spirits is liable to taxation if, by any process, it is extracted from 1lie wood, so as to become merchantable. It is no obstacle to the collection of the tax thereon that the usual allowance for soakage was originally made on the package. the tax then paid, and the i>roper stamps affixed, or that there are no specific regulations hy the commissioner of internal revenue' for the collection of the tax on soakage so extracted.</p> <p>Jenkins, Circuit Judge, dissenting.</p>

This is an appeal from a final decree of the circuit court for the Southern district of New York, which adjudged that the complainant was entitled to double damages for the infringement of claim 2 of letters patent No. 171,868, dated January 4, 1870, and issued to Reuben Ritter for an improved paper box.

<p>Appeal from tbe District Court of the United States for the Southern District of New York.</p> <p>This was a libel by John W. Hall, owner of the schooner Ettie H. Lister, against the steam ferryboat Paunpeck, for damages for injuries in a collision. A cross libel was filed by the Hoboken Ferry Company, owners of the Paunpeck, against Hall and the steamtug. Andrew J. White. Appeal from decrees holding both vessels in fault. Reversed, with instructions.</p>

This was a libel in personam by H. Y. L. Meigs & Co. against Peter Hagan and others, owners of the barge Morrisdale, to recover damages for breach of a contract of carriage. Supplemental Brief on Behalf of ^Respondents. The assumption by libelants that they were the shippers of the coal and that the bill of lading is the contract between the parties is without foundation.

Some aspects of this case have been previously considered. See Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. 642. It now comes before the court for final hearing on the merits.

<p>1. Federal Courts — Jurisdiction.</p> <p>Where a suit between citizens of the same state has been brought in a federal court, by collusion or otherwise, on the ground of defendant’s alien-age, and a default decree entered, such proceedings are wholly without jurisdiction and void, and injunction will lie against the execution of the decree.</p> <p>2. Same — Supplementary Suit.</p> <p>A suit to restrain a decree entered in another equity suit in the same court may be .sustained in a federal court, although all parties are citizens of the same state, as it is not an original suit, but purely ancillary and supplementary to the previous one; especially where the United States marshal is a party defendant. The court has inherent jurisdiction over its own process, to prevent abuse.</p> <p>3. Citizenship — Marriage to Citizen — Naturalization op Negroes.</p> <p>Section 1994, Rev. St. U. S., providing that “any woman who is now or hereafter may be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen,” applies to women of African blood since the act of July 14, 1870, extending the naturalization laws to persons of African birth or descent.</p> <p>4. Equity— Jurisdiction — Retainiks for Complete Relief.</p> <p>While a court of equity, having taken jurisdiction of a case for one purpose, will, in general, retain it for all purposes, so as to do complete justice, still, where it has obtained jurisdiction only to pass upon the validity of a decree of foreclosure, it cannot go further, and pass upon the validity of the mortgages themselves, and of the title sought to be conveyed thereby.</p>

This suit was commenced by the filing of a bill on July 29, 1895, in the circuit court of the United States for -the Eastern district of Missouri, by the appellant, as plaintiff, complaining of unfair competition in trade by the defendant, the appellee, in the use for the sale of smoking tobacco of a package called the “True Smoke Package,” which was alleged to be a deceptive imitation of plaintiff’s package, known as the “Tuberose Package.” The contention of plaintiff was…

<p>Public Lands — Railroad Grants —- Confirming Title of Bona Pide Purchasers.</p> <p>Act March 2, 1896 (29 Stat. 42), supplementing Act March 3,. 1887 (24 Stat. 556), confirmed the title of bona fide purchasers of land patented under railroad grants, though such patents were issued after the commencement of suit by the United States to forfeit the grants, where made in pursuance of contracts previously entered into by the railroad company in good faith.</p>

<p>1. Attorney and- Client — Lien por Compensation — Authority to Ketain.</p> <p>Where an assignee for benefit of creditors, who was engaged in prosecuting a suit for infringement of a patent belonging to the estate, contracted with a third person, who was suing the same party for infringement on another patent, to unite their interests for their mutual benefit, and authorized such third person to carry on or settle the litigation at his own expense and divide the net amount recovered equally between them, held, that the latter had authority to employ a solicitor and counsel who should be entitled to a lien for their fees on the fund recovered by their efforts.</p> <p>2. Same — Solicitor and Counsel.</p> <p>Whether a claim for counsel fees is made directly or indirectly through the solicitor is immaterial, since a fund recovered by their efforts is subject to the payment of the fair and reasonable value of their services, before it can be turned over to the parties entitled.</p> <p>3. Same — Amount op Fee.</p> <p>$13,285 held to be a reasonable fee’ for counsel who expended portions of their time for 322 days, aggregating at least 163 full days’ labor, in the prosecution of a patent infringement suit.</p> <p>4. Same — Lien—Enforcement.</p> <p>Services of counsel in an equity suit, resulting in a money decree in favor of a trust estate, are secured by a lien on the decree, and will be enforced by the court which rendered it, and which is familiar with all the facts showing the value of the services.</p>

<p>1. Attack of Insolvent National Bank — Trustee — Liability for Assessments.</p> <p>A trustee, though not appointed by a will or an order of a court or judge, is not personally liable for assessments against stock of an insolvent national bank owned by this cestui que trust, but standing in his name, where he has been guilty of no fraud, concealment, or negligence.</p> <p>2. Same— Fixing dfiability — Real and Apparent Owner.</p> <p>In fixing the liability for assessments against stock of an insolvent national bank, the effort of the court should be to ascertain who is the actual owner, and to hold him, releasing the apparent owner, if he has done nothing to deceive or mislead.</p>

<p>1. Trust Deed — Suspension op Power op Alienation.</p> <p>A mortgage or deed of trust to secure "bonds of a corporation does not suspend the absolute power of alienation of tlie property covered, and is not in contravention of Civ. Code Cal. § 715, which inhibits the suspension of the power of alienation for a longer period than the continuance of the lives of persons in being at the creation of the limitation.</p> <p>2. Irrigation Company — Claims por Services and Materials — Priority over Mortgage.</p> <p>Claims against an irrigation company for work and material furnished in the operation of tlie company’s business, and which were essential to its operation and to the preservation of its property, are preferred, on the appointment of a receiver, over a. prior mortgage of the company’s property.</p> <p>3. Same.</p> <p>Claims against an irrigation company for services and material furnished in the construction of an extension which was not necessary to preserve the property of ¡lie company, or to keep it in operation, are not entitled to preference over a prior mortgage of the company's property.</p> <p>4. Mechanic’s Lien — Attorney’s Fees.</p> <p>"Where those whose claims for services and materials are given preference over a mortgage upon equitable grounds also base a claim of preference on the mechanic’s lien law, such latter claim will not be considered, and compensation for attorney’s fees, and expenses of proceedings to record the lien, will not be allowed.</p> <p>5. Irrigation Company — Claims for Services — Priorities.</p> <p>Claims for sendees rendered in the construction of an addition to an irrigation system, which was never completed or in operation, will not be preferred over a prior mortgage on the property of the irrigation company.</p> <p>8. Pledged Bonds — Salk at Auction.</p> <p>Where the bonds of an irrigation company, pledged to secure claims against the company, are sold at public auction, and bought in by the pledgees, the latter are entitled to bo paid the full value of the bonds, and not merely the amount for which they wore plodged.</p> <p>7. Time Checks — Limitation of Actions.</p> <p>Time checks given for services are evidences in writing of a liability, and claims founded thereon are not barred by Code Civ. Proc. Cal. § 339, subd. 1, which provides that an action upon a contract obligation or liability not founded upon an instrument in writing shall be commenced within two years.</p> <p>8. Water Rights.</p> <p>Water rights in an irrigation company, which aro appurtenant to specific land, will be allowed, against tlie receiver of the company.</p>

<p>1. Statute of Limitations — Surrender of Pledge — Admissions.</p> <p>A pledgor cannot compel tlie surrender to him of securities pledged, without paying the indebtedness, on the ground that the statute of limitations has run against it; and, further, he will be estopped from setting up the statute where, in his complaint in an action between the parties, he has admitted and alleged the indebtedness.</p> <p>2. Restraining Action in Foreign Country — Res.</p> <p>The court which first acquired .-jurisdiction of a cause and of the parties thereto will hold and maintain it, in order to end and settle the controversy; and, although the courts of one country are without authority to stay proceedings in the courts of another, they may, where the parties are residents of their countries, enjoin them from proceeding further, even where the res of the controversy may be in the foreign territory.</p> <p>3. Same.</p> <p>Where an action has been commenced and is at issue in this country, between its citizens, and while the plaintiff is temporarily in England an action is commenced against him there by the defendants, involving questions that cud be adjudicated under the pleadings in the action commenced here, an injunction will be granted restraining the defendants from proceeding further in the foreign action.</p>

This was a bill in chancery filed by the First National Bank of Plattsmouth, Neb., against Neaty Woodrum and others, to set aside certain conveyances made by said respondent to her corespondents. Heard on the pleadings and proofs.

<p>1. Petition for Rehearing — Equity Rule — Duration of Term: of Court.</p> <p>Where the practice obtains of keeping the term open for business until the statutory time for opening the next term, a petition for rehearing filed before the term at which the decree was rendered has been adjourned sine die is not too late, under Equity Rule 83, which provides that “no rehearing shall be granted after the term at which the final decree of the court shall have been entered,” etc.</p> <p>•2. Quieting Title — Allegations and Prayer of Bill — Relief.</p> <p>In an action to set aside conveyances made by W. to her co-defendants, and to quiet plaintiff’s title, the bill, inter alia, alleged that, in consideration of plaintiff giving W. the entire use of the real estate in controversy during her life, she had executed a conveyance to plaintiff. In the deeds attacked, copies of which were filed with the bill, she had reserved her life estate. The prayer was that W. be decreed to have only a life estate, and that plaintiff’s title be quieted and confirmed, and for general relief. Held, that the decree in favor of plaintiff quieting his title should preserve to W. her life estate.</p>

<p>1. Liability of Pledgee of Bank Stock.</p> <p>A pledgee of national hank stock is not liable as a stockholder for assessments, except by estoppel.</p> <p>2. Pledge of Bank Stock — Estoppel.</p> <p>Whore shares of an insolvent bank are registered on the books, “E. A. Cranston, Cashier Old National Bank, Providence, R. I.,” the latter bank, in a suit by the receiver to hold it liable as a shareholder for assessments, is not estopped by the registry from setting up the fact that it holds the stock merely as a pledgee.</p> <p>3. Same.</p> <p>And the cashier, individually, is not estopped from avoiding liability on the same ground.</p>

<p>1. Violation of Restraining Order — Contempt.</p> <p>A defendant guilty of continuous and repeated violations of a restraining order cannot excuse himself on the ground that the order is open to different constructions, and, construing it for himself, he had abstained from doing such acts as fell within the letter of the order. The spirit as well as the letter of the order should be obeyed.</p> <p>2. Same — Intent.</p> <p>A defendant who knowingly and ■ purposely commits acts which are in violation of a restraining order is guilty of contempt, and it is no defense that he had no intention of violating the order.</p>

<p>1. Representations by Bank — Corporate Powers.</p> <p>Representations by a bank that an insurance company has a certain amount of paid-up capital stock and surplus, are ultra vires.</p> <p>2. Same.</p> <p>Representations by the officers o£ a bank to an insurance commissioner, that an insurance company had on deposit in such bank a certain amount which had been paid in as capital stock and net surplus, are not ultra vires.</p> <p>3. False Representations — Liability to Third Persons.</p> <p>A bank whose officers make false representations to an insurance commissioner, concerning- the amount which an insurance company lias on deposit with it, whereby the commissioner is induced to issue a license, is not liable to a third person who was induced to purchase shares in the company by the fact that such license had been granted.</p>

This was an action at law by Eugene Tracy Tobin, a citizen of Pennsylvania, against the Boaring Creek & Charleston Railroad Company, a West Virginia corporation, and Cassius L. Dixon, a citizen of West Virginia, who is receiver of the said railroad company, to recover money alleged to be due under a contract. The case was heard on a motion to strike off a nonsuit.

<p>1. Local Land Office — Reimbursement for Office Rent — Suit against the United States.</p> <p>Where the receipts oí a land office were in excess of the maximum allowed hy law for compensation of the register and receiver and all expenses of the office, hut, because of insufficient appropriations for incidental expenses, the department refused to honor requisitions to pay office rent, the receiver may, hy timely action against the government, recover the amount paid hy him for office rent.</p> <p>3. Same — Suit for Office Rent Paid — Limitation.</p> <p>Under 1 Supp. Rev. St. (2d Ed.) 559, providing that no suit against the government shall he allowed unless brought within six years after the right accrued, a receiver can only recover so much of a claim-for rent of the land office as was paid hy him within six years immediately before bringing suit therefor.</p>

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

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