Volume 88 — Federal Reporter

This is an action to recover damages for an alleged libel, and was brought by John Creagh against the Equitable Life Assurance Society of the United States, a New York corporation, and Frank Waterhouse and William P. Pritchard, co-partners doing business under the firm name and style of Waterhouse & Pritchard.

<p>This was an action commenced in a state court by Charles A. Gregory against the Boston Safe-Deposit & Trust Company, and subsequently removed to this court by the defendant. The case 1ms now been heard on a motion to remand.</p>

<p>t Federal Courts — Following State Decisions.</p> <p>Whether a mere equitable interest in lands becomes impressed with the lien of a judgment against the owner of such interest is a question of local law, in regard to which the federal courts will follow the state decisions.</p> <p>2. Judgment Liens — Equitable Interests in Lands.</p> <p>The equitable interest of one who has conveyed the legal title in his lands to third parties, for the purpose of defrauding his creditors, does not, in the state of Washington, become impressed with the lien of a judgment thereafter rendered against him.</p> <p>S. Deposits in Court — Condemnation Proceedings — Rights op Creditors.</p> <p>Money in court awaiting distribution to those in whose favor awards have been made in condemnation proceedings instituted by the govern-merit cannot tie intercepted by means of a creditors’ bill, or intervening petition in the nature thereof. Such a proceeding would be, in effect, a suit against the government and the clerk of court, to make them pliable as garnishees.</p>

In Equity. Bill to foreclose a mortgage. By an act of the legislature of the state of Tennessee of March 28, 1891 (chapter 2), entitled “An act to regulate the business of building and loan associations,” it was required that no building and loan association organized under the laws of another state should do business in Tennessee unless said association should deposit, and continually thereafter keep deposited, in trust for all its members and creditors, mortgages amounting…

<p>This was a libel in rem by Thomas Hanson against the steam tug Meta to recover damages for personal injuries.</p>

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

Trial by the court withput a jury. During the argument of the demurrer filed in the record the parties stipulated in writing that the case should be tried by the court without a jury, and thereupon filed an agreed statement of facts upon which the cause was heard. The stipulation to try without a jury and the agreed statement of facts are filed in the record. Special Finding of Facts.

This was an action by Horace J. Wood against the Louisville & Nashville Railroad Company to recover damages for personal injuries. There was a verdict for plaintiff for $8,000, and defendant moves for' a new trial. The plaintiff was a. switchman on the Louisville & Nashville Railroad, and had been so engaged for about three months on a gravel train.

This action was brought by the plaintiff in error against A. M. Drake and Levy Mayer in the circuit court of Suwannee county, Fla., and removed to the federal court, no service being had upon Mayer.

<p>In Error to the Circuit Court of the United States for the Southern District of Florida.</p> <p>This was a suit brought by G. O. Stapylton, as receiver of the First National Bank of Ocala, against tho Cié des Phosphates de France, a corporation under the laws of France, upon a draft for 83,000, directed to Lazard Freres. The draft was duly presented for acceptance, and dishonored, of which the defendant had duo notice. The defendant pleaded that ‘the bank did not own the draft, and pleaded a set-off of $2,665.13, a balance on deposit account of the First National Bank of Ocala, at tho time of the suspension of the bank, and also a claim of set-off of $500 by reason of a certain draft drawn by the Ocala Bank in favor of the Live Oak Bank upon tho National Bank of Jacksonville, — a draft which was the property of the defendant, and represented money which defendant had placed with the Ocala Bank to purchase said draft. The cause was submitted to the judge without a jury, and the plaintiff proved the draft was made and executed by .the defendant, and placed to the credit of defendant in the Ocala Bank as cash, and drawn upon as cash; that the draft was sent to New York for collection; that the draft was returned from New York, having been presented for payment, and payment refused; that payment was refused by Lazard Freres because payment was stopped by a telegram by the defendant through its manager, P. Levy; that by the course of dealing between the defendant and the bank, the bank bad been in the'habit of receiving such drafts as cash, and crediting the same to the defendant as cash, and that this draft was entered both on the bank’s books and on the book of the defendant, or by a receipt given it, as so much cash deposited. The defendant sought to show that of this $3,000 there was a credit balance of $2,665.18 on tho books of the bank at the time of the failure. The plaintiff objected to the intro-Auction of this evidence on the ground that defendant was. not entitled to set off the said alleged credit balance, and allowing the said set-off being equivalent to permitting the defendant to make itself a preferred creditor by its own action in refusing to pay the $8,000 draft; that such proceeding was contrary to the acts of congress controlling national banks.</p> <p>The statement and findings of the court below are as follows:</p> <p>“That the defendant, by its general manager, P. Levy, deposited in the First National Bank of Ocala, of which the plaintiff herein is the regularly appointed and qualified receiver, on the 10th day of April, 1S95, its check on Lazard Freres, New York, for $3,000. payable to the order of said bank. That the same was credited to the defendant’s general deposit account on the books of the said bank. That defendant had been accustomed to so deposit checks to be drawn against after the officers of the defendant company had exhibited to the officers of the bank advices by cable from their Paris office authorizing such checks. There was no contract or agreement between the parties with regard to the treatment of such checks, but they were usually placed to the general account of the defendant, and drawn against as funds were required. There had been certain cheeks drawn by the general manager of the defendant company upon the bank, which were outstanding at the time of this deposit, to the extent of $777.30, which was paid, and charged to the account of the company. That the said check of $3,000 was not paid upon presentation to the drawee in New York, and the protest fees amounted to $1.31, which were paid by the plaintiff. That allowing the defendant the $3,000 credit given it for the unpaid check, there was to the credit of the defendant company by said bank, at the time of insolvency, $2,665.18; but charging back the $3,000 credited for said cheek there was an overdraft of $334.82 due said bank; and the court fails to find sufficient evidence of the indebtedness of the plaintiff to the defendant of the $500 pleaded as set-off by said defendant to find such set-off. And the court finds as a mixed matter of law and fact that the defendant company is indebted to the plaintiff in. the amount of $334.82, and interest to the amount of $50.70, making a total amount of $385.52, for which judgment should follow, together with the costs to be herein taxed and allowed.”</p>

<p>In Error to the District Court of the United States for the Middle District of Alabama.</p> <p>This suit was commenced by the filing of a petition in the district court, as follows:</p> <p>“Your petitioner, Asa E. Stratton, who is a resident citizen of Pike county, in the stale of' Alabama, and district aforesaid, respectfully shows to your honor:</p> <p>“First. That petitioner was duly appointed and legally qualified as a commissioner of the circuit court of the United States for the Middle district of Alabama, on the 9th day of .Tune, A. D. 1894, anti that, continuously since the day of his appointment and qualification as such commissioner, has rendered and performed services to the government of the United States, hereinafter referred to, and specifically set out in a bill of particulars here.with filed, marked ‘Exhibit A,’ and made a part of this petition. Petitioner further alleges that said services were rendered and performed at the instance and request of the United States, and that such service consisted in raking complaints and the issuance of warrants, and the examination under complaint and warrant of such persons as were brought before him as such commissioner by the marshal of said Middle district of Alabama charged with the violation of the iuterual revenue laws and other criminal statutes of the United States, and in the holding of persons to bail who had been arrested under capias, or other legal process of the courts of the United States.</p> <p>“Second. Petitioner avers flint he is entitled to have and receive from and to be paid by the United States the aggregate sum of r.ix hundred and five dollars and seventy cents ($605.70). The said amount is made up of the following items, shown by the summary to the account hereinbefore referred to, as Bxhiliit A, and made a part of this petition, to wit:</p> <p>Per diems for taking bail only.....$160 00</p> <p>Charge for subpoenas, entering, returning, and filing. .....-... 7 «TO</p> <p>Charge for more than one warrant when there was more than one defendant in a case..... 38 00</p> <p>Charges for filing mittimus sent to clerk..... 10</p> <p>Charge for writ of attachment for defaulting witness.. 3 75</p> <p>Charge for per diem on a warrant issued in Florida.. 5 00</p> <p>Charge for duplicate order to marshal to pay witness........_ 1 20</p> <p>Charge for certified transcript of proceedings... 35 10</p> <p>Charge for excess of one folio In recognizances. .. 172 80</p> <p>Charge for complaint in addition to testimony of informing witness 55 25</p> <p>Charge for testimony of informing witnesses in addition to complaint .... ...... 17 60</p> <p>Entering return and filing warrant in cases tried by some other . commissioner ...... 10 00</p> <p>Charges for filing complaint issued by some other commissioner.. 1 80</p> <p>Charges for per diems in certain cases... 60 00</p> <p>Charges for per diems in case United States v. Eddins... 5 00</p> <p>Charges of all fees in case v. Holloway. 13 60</p> <p>Charges for excess of one folio on each day in case for docket entry 8 55</p> <p>Charges for per diems in case V. Wadsworth. 5 00</p> <p>Charges for justifying sureties on bonds... 50</p> <p>Charges for docket entries... 95</p> <p>Total ...$605 70</p> <p>“Third. Petitioner avers that he made out, rendered in due form, and at the proper time, accounts for the several quarters on the respective fiscal, years since his appointment and qualification, as aforesaid; that said accounts embraced each and all of the items herein sued for; and that the same were duly allowed by your honor’s court, and thereafter forwarded in due course to the proper auditing and accounting officers of the government of the United States, as will more fully appear from the record of said court.</p> <p>“Fourth. Petitioner further avers that each [and] all of the several items and charges in said Exhibit A and summary thereto, and which are here sued on, were the items and charges in petitioner’s said accounts for services rendered as such commissioner, and are the items and charges which the said auditing and accounting officers, in the adjustment of petitioner’s said accounts, erroneously and unlawfully suspended and disallowed.</p> <p>“Fifth. Petitioner further avers that the said account, amounting in the aggregate to six hundred and five dollars and seventy cents ($605.70), as shown in said Exhibit A, and each and all of the items and charges therein, are due and owing to your petitioner; that no part of the same has been allowed or paid to him by the defendant, the United States of America, nor has any part thereof been passed upon or rejected by any court authorized to pass upon the same; and that petitioner now has the legal right to claim, sue for, and receive payment therefor,” — concluding with prayer for judgment.</p> <p>The Exhibit A referred to in the petition as a bill of particulars appears to be the copy of the commissioner’s account for several quarters prior to the institution of the suit, upon which memoranda have been made by accounting officers of the government and by petitioner. The following is a sample:</p> <p> </p> <p>Service was duly made upon the attorney general, but the United States made no appearance to the suit, and thereupon, after proper delays, the following entry was made by the court:</p> <p>“Finding of Fact and Law.</p> <p>“Thursday, June 24, 1897.</p> <p>“In the District Court of the United States for' the Middle District of Alabama.</p> <p>“Asa E. Stratton vs. The United States.</p> <p>“The above-entitled cause, coming on regularly to be heard at the present term of the court, on the 16th day of June, A. D. 1897, was submitted for decision on pleadings and evidence, and the court makes and files the following findings of facts: First. That petitioner is now, and has been since the ninth day of June, 1894, a commissioner of the circuit court of the United States for the Middle district of Alabama. That said petitioner, as such commissioner, has, at the instance and request of the United States, performed certain services, which are as follows, to wit:</p> <p> </p> <p>“All of these items have been presented in said commissioner’s quarterly account, heretofore rendered and disallowed by the accounting officers of the treasury.</p> <p>“The court finds as a fact that said services were actually rendered by said petitioner, and therefore the court files the following as its findings of law: First. The court declares and holds, that under the i>rovisions and statutes of the United States regulating the fees to he i>aid to commissioners of the circuit court of the United States, the charges hereinbefore set forth are proper charges against the United States.</p> <p>“John Bruce, Judge.</p> <p>“Judgment: It is therefore ordered and adjudged by the court that the petitioner, Asa E. Stratton, do have and recover of and from 1he defendants, the United States of America, the sum of five hundred and eighty dollars (S580.85) and eighty-five cents, together with the costs in this behalf expended.</p> <p>“Filed June 24, 1897.”</p> <p>The United States have brought the case to this court for relief, assigning errors as follows: “(1) The district court erred in its findings of facts. (2) The district court erred in its findings of law. (3) The district court erred in allowing certain charges to he included in said findings of facts, which were not proper and legal charges. (4) The district court erred in allowing certain charges to be included in said findings of facts, when in truth and In fact such services warranting such charges were never performed by said, court. (5) The district court erred in holding that plaintiff was entitled to recover the whole amount sued for by him, without deducting therefrom certain charges that were not lawful, and certain other charges for which the services were not performed, and therefore improper. (6) The district court erred in rendering judgment against the defendants, as shown by the record.”</p> <p>Thereafter, on leave of the court, the assignment of errors was amended, and additional errors assigned, as follows: “The district court erred in its findings of facts as shown in charge 14 in findings of facts, viz.: ‘Charges for per diems to trying cases, $45.00.’ See Transcript, p. 13. (8) That the district court erred in its findings of law. (a) In charge No. 1 of findings of facts and law, ‘Charges for per diems for taking bail, under capias, etc., $100.00.’ See Transcript, p. 12. (b) In charge No. 4, in finding of facts and law, ‘Charge for filing mittimus sent to clerk, 10 cents.’ See Transcript, p. 12. (c) In charge No. 9, findings of facts and law, ‘Excess of one folio «in recognizances. These recognizances contained about seven folios, but the petitioner only charges for four folios, making his claim for this item, $172.90.’ See Transcript, p. 13. (d) Charge No. 14 in finding of law and facts, ‘Charge for per diems to trying cases, $45.00.’ See Transcript, p. 13.”</p>

<p>1. Rks Judicata — Action on County 'Bonds.</p> <p>Where a judgment has been recovered against a county on its refunding bonds, and subsequently mandamus has been issued to compel the levy of a tax to pay such bonds, the question of their validity is concluded as between the same parties, and cannot be again raised in a subsequent suit.</p> <p>2. County Judge — Vacancy—Appointment by Commissioners.</p> <p>In Texas, three out of four county commissioners have power to appoint a county judge to fill a vacancy, who will be a judge do facto, if not de jure.</p>

These were four suits in equity brought by Emilie Saxlehner against the Eisner & Mendelson Company, the Siegel-Cooper Company, Rudolph Gies, and Louis Marquet, to enjoin an improper use of trademarks and labels in connection with certain Hungarian mineral waters.

This was a suit in equity toy Emilie Saxlehner against Alexander Melson to enjoin an unfair use of latoels and trade-marks, and for an accounting for past infringements.

'This was a suit in equity by Charles Fred Lamont against John D. Leedy and others for alleged infringement of a trade-mark. The cause was heard on demurrer to the bill.

<p>1. Copyright — Priority—Evidence.</p> <p>On conflicting evidence, Jield, that Bert A. Williams was the original composer of the copyrighted song “Dora Dean,” and that Charles Sidney O’Brien, in pretending to compose the melody of the song “Ma Angeline,” which was copyrighted by him, pirated the melody of the song “Dora Dean.”</p> <p>3. Same — Copyrightable Words — Immoral Character.</p> <p>Musical compositions of immoral character cannot be protected by copyright; but where a copyright is held invalid because of the use of a word of immoral significance the owners thereof may republish the song, omitting the objectionable matter, and obtain a valid copyright therefor.</p> <p>3. Same — Restraining Order — Damages.</p> <p>A defendant, who is shown to have pirated a song from complainant, is not entitled to damages occasioned to him by a restraining order, though the court dissolves such order because of the invalidity of complainant’s copyright.</p>

This was a suit in equity by the A. B. Dick Company against Sidney Henry for infringement of a patent. The cause was heard on .motion to punish the defendant for contempt in disobeying a decree for perpetual injunction.

This was a suit in equity by Henry G. Thompson and others against the N. T. Bushnell Company for alleged infringement of letters patent HSTo. 328,019, issued October 18,1885, to complainants as assignees of the inventor, Thaddeus Fowler.

This appeal is írom a decree of the circuit court for the Southern district of New York, which adjudged that the defendants had infringed claims 2, 6, and 9 of letters patent No. 324,892, dated August 25, 1885, and issued to Frank J. Sprague, for an improved electric railway motor. 84 Fed. 641. The defendants’ motor is made in accordance with letters patent No. 546,560, dated September 17, 1895, and issued to Sidney H. Short.

<p>■ 1. Patents — Subjects of Patent.</p> <p>It is not the result attained which is patentable, but the device or mechanical means by which that result is secured.</p> <p>2. Same — Analogous Use.</p> <p>There is no invention in adapting the prior devices for igniting gaslights by an electric spark, by what is known as the wiping or reciprocating movement, to the ignition of gas in the explosion chambers of gas engines. The changes required involve mere mechanical adaptations, obvious to the skilled workman.</p> <p>8. Same — Gas Engines.</p> <p>The Barrett & Daly patent, No. 430,505, for an improvement in gas engines, consisting in mechanism for igniting the gas by means of an electric spark, is void, because of anticipation and want of novelty.</p>

On July 7, 1896, a storm swept over the western part of Florida, taking in its course the mouths of Escambia River and Escambia Bay, an arm of Pensacola Bay. At Ferry Pass, on one of these mouths of the river, there were several thousand sticks of timber gathered together which were cast adrift by the storm, and carried by the wind and tide out into the waters of Es-cambia Bay.

This was a libel in rem by Mary T. Millen against the canal boats Weber Bros., Peter A. Weber, E. T. Hedden, Lottie A. Collins, D. Johnson, Mrs. Mary Monks, John Monks, Willie J. Clark, Augustus Swan, John T. Dunbar, Albert Atwood, David Taylor, Ard McCor-mack, and their cargoes, to recover compensation fof alleged salvage services.

<p>This was a libel in rem for seamen’s wages.</p>

<p>Onicurr Courts of Appeal — Criminal Jurisdiction— Crimes in Indian Territory.</p> <p>In the act of March 1, 1895, creating a court of appeals for the Indian Territory, and giving it full jurisdiction, civil a!nd criminal, the provision of section 11 that “writs of error and appeals from the final decision of said appellate court shall ho allowed, and may be taken to the circuit court of appeals for the Eighth judicial circuit, in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States,” conferred upon that court full appellate jurisdiction, including that in cases of infamous crimes, which was theretofore vested in the United States supreme court.</p>

<p>Appeal from the District Court of the United States for the Northern District of Iowa. \</p> <p>Edward E. Waite, the appellee, filed an application for a writ of habeas corpus in the United States district court for the Northern district of Iowa, in which he alleged, in substance, that he was unlawfully restrained of his liberty by A. O. Campbell, the sheriff of Howard county, Iowa, under a warrant issued by the district court of said county; that he was held in custody and wrongfully deprived of his liberty “for an act done in pursuance of the laws of the United States”; and that the restraint so imposed “was in violation of the constitution and laws of the United States, the courts of the stale of Iowa having no jurisdiction to arrest or imprison him.” A writ of habeas corpus having been duly issued and served, said A. C. Campbell, the appellant, made a. return to the writ, stating, in substance, that he held the said Waite in custody by virtue of a warrant of commitment issued on a, judgment of the district court of Howard county, Iowa, which was rendered on June 22, 1895, and that said judgment after its rendition had been duly affirmed on appeal by the supreme court of the state of Iowa. Attached to said return were duly-certified copies of the judgment of the district court of Howard county, of the indictment on which the said Waite had been tried, of the judgment of affirmance by the supreme court of the state, and of the warrant of commitment under which the accused was held.</p> <p>The indictment appears to have been based on section 47(57 of the Code of Iowa of 1897, quoted below in the margin,1 and charged, in substance, that E. F. Waite, at and within said county of Howard, on or about the 4th day of October, A. .D. 1894, did willfully, maliciously, unlawfully, and feloniously threaten verbally to accuse one D. P. Andrus, a person then and there being and residing in Howard county, Iowa, of the crime of perjury, and to have him arrested and punished therefor, in order to compel the sab? Andrus to do an act against his will. To the aforesaid return a reply wa' filed by the petitioner, wherein he admitted that he had been indicted, tried and convicted in the district court of Howard county, Iowa; that the judg ment of said court had been subsequently affirmed by the supreme conn of the state (70 N. W. 596); and that he was then in custody by virtue of a warrant issued on said judgment. He averred, however, in substance, that the judgment of the state court, by virtue of ■which he was held in custody, was utterly null and void and of no force or effect, because the acts complained of in the indictment on account of which he had been accused and convicted were acts which he had done and performed as a special examiner of pension claims in the discharge of duties that were imposed upon him as such examiner by the laws of the United States. In support of this general averment, the petitioner alleged, in substance, the following facts: That, at the time of the commission of the alleged offense against the laws of the state of Iowa, he was a special examiner of the pension bureau, and, as such, had authority to administer oaths and take affidavits in the investigation of .claims pending before the commissioner of pensions, and was charged with the duty of examining pension claims and aiding in the prosecution of persons appearing on such investigations to be guilty of fraud in presenting or procuring the allowance of claims for pension; that one Daniel P. Andrus, of Howard county, Iowa, was at the time a pensioner of the United States, and an applicant before the pension bureau for an increase of his pension; that three letters had been filed by said Andrus in support of his claim for an increased pension; that the duty had been devolved on the petitioner, by order of the commissioner of pensions, of investigating the merits of said claim; that, in the discharge of that duty, the three letters aforesaid and other evidence in support of the claim came into the possession of the petitioner; that, upon an examination thereof, he had good reason to believe, and did believe, that one or more of said letters were false and fraudulent, in that they had been written long after the time when they purported to have been written; and that it thereupon became his duty, as special examiner in charge of said claim, to visit said Andrus^ and ascertain from him, by a statement under oath, the true date when the said letters were written. The petitioner further alleged that, for more than one year prior to the date last aforesaid, he had been engaged with other special examiners in investigating many pension claims originating in Howard county, Iowa, and in that vicinity, in which one George M. Van Leuven, a resident of that county', had acted as attorney in prosecuting said claims before the pension department; that so many frauds had been unearthed in the course of such investigation, many of which had been committed at the instance of said Van Leuven, without any intentional wrongdoing on the part of the applicants, that it was deemed inexpedient and impracticable to prosecute all persons concerned therein; that general instructions had accordingly been given by the commissioner of pensions to obtain all material evidence that could be obtained respecting the conduct of said Van Leuven and other persons who had acted in an official capacity, as examining surgeons, who might have been concerned in said frauds, to the end that they might be duly prosecuted, but that no prosecutions should be recommended or set on foot by special examiners of the pension department against individual pensioners who confessed their fraud, except in extreme cases where the frauds perpetrated appeared to have been gross and willful; that, acting in line with such general instructions of the commissioner of pensions, the petitioner visited said Andrus, in Howard county, Iowa, with a view of ascertaining whether the aforesaid letters which were believed to be fraudulent were in fact written on the date which had theretofore been alleged by the pension claimant, to wit, in the year 1804, or at a much later date; that, on the occasion of said interview, the petitioner requested said Andrus to make a truthful statement concerning said letters and the dates when they were written, and said to him, in substance, “that if he, the said Andrus, should not tell the truth about said letters, and if it should conclusively appear thereafter from other sources that he had made false statements under oath concerning said letters, then he, the said petitioner, would recommend the criminal prosecution of said Andrus for perjury,” the fact being that Andrus had theretofore stated under oath, in a deposition taken before a special examiner of the pension bureau in support of his claim for a pension, that said letters were written by him during the year 1864, which statement was material to the allowance of the claim, and constituted the crime of perjury, under the laws of the United States, provided it was false and was known to said Andrus to be false when the same was made. The reply further disclosed, in substance, that the acts aforesaid, as ie.sern.od by the petitioner, and no oilier or different acts, constituted the allowed offense for which he had been indicted, tried, convicted, and sentenced in the district court of Howard county, Iowa. The respondent below, who is the appellant here, demurred to the foregoing plea, and also moved to strike out material parts thereof, but each was overruled. A hearing was then had on the issues tendered by the plea; considerable evidence was offered by the petitioner in support thereof; and, at the conclusion of the hearing, the petitioner was discharged from custody. 81 Fed. 359. The case comes to this court on appeal from such order.</p>

<p>1. Federal Courts — Following State Decisions — Construction of State Statutes.</p> <p>A decision by tbe highest court of a state, construing a statute of the state, is as binding upon the federal courts as though the construction so given had been written in the statute by the legislature itself.</p> <p>3. Replevin — Dismissal of Suit by Plaintiff — Character of Judgment.</p> <p>Under the Indiana Code of 1881, when a plaintiff in replevin voluntarily dismisses the suit, after obtaining possession of the property, the only judgment that can be entered is for costs, and a return of the property cannot be directed. This, however, does not leave the defendant without a remedy, since the dismissal is a breach of the condition in the replevin bond requiring the plaintiff to prosecute his suit to effect, and defendant may sue on the bond, and recover the value of the property taken from him. Nor in such case is the burden of showing title to the property shifted from the plaintiff in replevin to the defendant, since, in an action on the bond, the latter would be entitled to judgment on introducing the replevin bond and the proceedings in the replevin suit, unless the replevin plaintiff then showed by preponderance of proof that he was the owner or entitled to possession of the property.</p>

<p>1 Code Pleading — Denials of Answer.</p> <p>Under the Colorado Code, the plea of the general issue, as known at common law, is abolished, and the answer must contain a denial of each material allegation intended to he denied, and every material allegation not controverted is taken as true.</p> <p>& Account Stated.</p> <p>A mere allegation that, on a certain date, plaintiff “rendered to defendant a statement of said account” (being the account sued on), is not equiv-aient to an averment that the account between the parties had been stated, showing a specific sum due, so as to make the suit one on an account stated.</p> <p>Corporations — Contracts of Agents — Ratification.</p> <p>In an action against a corporation on a contract made between plaintiff and a third person,, who is alleged to have acted in behalf of the corporation, it is not necessary to show that the contract was made under authority of a resolution of the board of directors; and, if there is'evidence tending to show that it was made in the interest of the corporation, which recognized it, accepted its benefits, and acted on its provisions, this is sufficient to warrant the submission of the cause to the jury.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This action was brought in the court of common pleas of Franklin county, Ohio, against the Baltimore & Ohio Railroad Company, the plaintiff in error, to recover damages for the death of William Bauer, caused, as alleged, by the negligence of plaintiff in error. The case was, upon petition of the defendant, removed into the circuit court of the United States for the Eastern division of the Southern district of Ohio, and the trial resulted in a verdict and judgment in favor of the plaintiff for §1,500, and the case is brought here for review on writ of error. Deceased was a child 18 months of age, and had escaped from the home of his parents about 9 o’clock a. m., Sunday, April 9, 1894, and had wandered unobserved upon the railroad track of the defendant at a public crossing 50 yards or moro from the house, and was sitting with his head down at tlio edge of the boards which made the highway, and just at the end of the cattle guard, when struck and killed by the locomotive oí a passenger train of the defendant going south. This crossing was half a mile or more south of Briggsdalo station, on the Midland Division of the defendant’s railway system. The view of this crossing was open and unobstructed, and the track straight, from Briggsdalo station going south. From Briggsdale station to the crossing is slightly up grade. The day was clear and the track dry. The engineer on the locomotive says the child, when first seen, was thought to be a Plymouth Rock chicken, being dressed, as the proof all shows, in light blue clothes. He says that when he first discovered that the object was a child he was 300 to 400 feet away, and said to the fireman, “My God, Dick, there is a child on the track!” and at once applied the emergency brake, and used all means to stop the train, reversing, as he thinks, the engine. The fireman (Johnson) agrees in the main with the engineer in his testimony, and says positively the engine was reversed, but says that When the engineer told him there was a child on the track they were two, and it may have been three, hundred yards from the child, so far as he can remember. Locomotive engineers were examined as experts, and gave opinions as to the distance required within which to stop a passenger train by application of all available appliances under the circumstances attending the accident,--such as the rate of speed, length of train, grade and condition of track. The necessary distance, as estimated by the different witnesses, varied from 850 to 1,000 feet. The court, in the charge to the jury, eliminated from the case and withdrew from the jury every question except the simple issue <of fact whether, after the engineer knew or suspected that the object on the track was a child, he used ordinary care and skill to avoid tlio accident. The exact language of the court was as follows: “This case presents a very simple Issue. The first one is whether the engineer, after he saw the object on the track, and after he knew or suspected that that object was a child, used the care and skill which an engineer of ordinary care and skill would have used to avoid the accident. If he did, then the company is not liable; if he did not, the company is liable. The only evidence on the subject shows that the child was sitting at the edge of the boards which make the highway, with its head down over the rail. It was not using the highway for the purpose of passing or repassing. It was sitting there in a way in which it had no right to use the highway. Therefore it had not the rights of a traveler upon the highway, and the company was not hound, with respect to it, to use care before its agents should have discovered that it was a child upon the highway. The only issue before you, therefore, is whether, after the engineer or fireman saw the object, and either knew or suspected that it was a child, he used the care and skill which an average engineer — an engineer of average skill and care— would have used to prevent the accident. If he did, the company is not liable; if he did not, the company is.” The court denied a motion or request to direct a verdict in favor of defendant upon the whole of the evidence, refused certain special instructions requested by defendant, and error is assigned to the action of the court in denying the motion and special instructions, as well as to the ruling in admitting certain evidence over objection by defendant.</p>

<p>1. Appeal — Record—Motion to Strike Out.</p> <p>Wliere several different proceedings are pending below, arising in the same original suit, and an appeal is taken from a decree rendered in one of them, matters embodied in the record which relate only to the other proceedings will be stricken out on motion.</p> <p>2. Same — Parties.</p> <p>An appeal cannot be dismissed on the ground that the appellants are not parties, where, though they are not parties to the record in technical form, they were made parties by an order of the court below, so as to be entitled to appeal from the decree.</p> <p>8. Same — Appealable Pinal Decree.</p> <p>A decree entered in a proceeding by attorneys to enforce a lien for their fees, which adjudges that they are entitled to compensation to a definite amount and have a lien therefor on a fund in court, and directs payment thereof, is a final appealable decree, although.the residue of the fund may not have been finally disposed of.</p> <p>4. Attorney and Client — Lien for Compensation — Authority to Retain.</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. 80 Fed. 964, affirmed.</p> <p>6. Attorneys and Client — Contract for Compensation.</p> <p>After entry of a decree in a trial court for merely nominal damages, counsel for complainant entered into a contract with him whereby counsel agreed to prosecute an appeal, and use all reasonable efforts to secure a reversal, complainant agreeing to pay all necessary disbursements, and to give counsel 20 per cent, of the gross amount of any recovery which should be paid, after deducting the expenses and disbursements. A reversal of the decree was thereafter obtained with directions for a substantial recovery, and thereupon the opposite party moved the court for a modification of the proposed mandate, which motion was successfully opposed by complainant’s counsel. Application was then made to the supreme court for a writ of certiorari, which motion was also successfully opposed by plaintiff’s counsel. £TeZ<7, that the contract for compensation covered, not merely the services rendered in procuring the reversal, but also the subsequent services rendered in both courts.</p>

This was an action at law to recover damages, and was brought by P. J. Van Loben Seis against Lester D. Greene and others, including reclamation district No. 551. The case was heard on motion to strike from the flies the amended complaint, and also on a demurrer to the amended complaint.

This was a bill in equity by P. J. Van Loben Seis against Lester D. Greene and others to abate a nuisance. The cause was heard on demurrer to the amended and supplemental bill.

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

<p>1. Receivers — Protection of Property — Procedure.</p> <p>' Proceedings by a receiver to obtain an injunction for tbe protection ot property in bis custody may be instituted by petition in tbe receivership suit.</p> <p>2. Same — Taxation.</p> <p>Property constructively in tbe custody of tbe court through its receiver is not subject to sale for delinquent taxes.</p> <p>8. Same — Federal Jurisdiction — State as Party.</p> <p>A sale of property in the custody of a receiver for taxes is void, and, even though the state buys the property in at such sale, it acquires no title; hence a proceeding to enjoin interference with the property by persons who have attempted to redeem it from the state is not open to the objection of being a suit against the state.</p>

This case comes up on an appeal by the United States Trust Company, one of the defendants in the court below, from an order of the circuit court for the Southern district of California, made and entered April 7, 1897, upon the petition in intervention of the Southern Pacific Railroad Company.

<p>L Equity Jurisdiction —Multiplicity of Suits — Parties—Multifariousness.</p> <p>A court of equity will, in a single suit, take cognizance of a controversy, determine the rights of all the parties, and grant the relief requisite to meet the ends of justice, in order to prevent a multiplicity of suits, where a number of parties have separate and individual claims and rights of action against the same party, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter may be settled in one action brought by all these uniting co-complainants.</p> <p>8. Same — Inequitable Conduct of Complaint.</p> <p>The inequity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct, unconnected with the act of the defendant which the complaining; party states as his ground of action, but it must be evil practice or wrong conduct in the particular matter or transaction in respect of which judicial protection or redress is sought.</p> <p>8. Same — Illegal Combinations.</p> <p>The fact that a number of foreign insurance companies doing business in a state are members of an alleged illegal combination to suppress competition, etc., will not prevent them from maintaining a suit to enjoin the state insurance commissioner from illegally revoking their certificates of authority to do business in the state, and canceling their bonds. ,</p> <p>4. .Federal Courts — Following State Decisions.</p> <p>The federal courts are bound by the decision of the supreme court of California that a statute of that state is void, because, in disregard of an express constitutional limitation on the power of the legislature, it attempts to impose a tax for municipal purposes.</p> <p>5. Foreign Insurance Companies — Powers op State Insurance Commissioner.</p> <p>The power of the insurance commissioner of California to revoke the certificate of authority under which a foreign company is doing business in the state arises only (1) when such a company removes an action to a federal court, and (2) when it becomes insolvent. Pol. Code, §§ 595, 600. He can cancel its bond only when defective in form or substance, or when the sureties are financially insufficient; and he has no power or discretion to do either merely on the ground that such company is a member of an illegal combination to raise insurance rates, or because it refuses to pay a tax which it claims is illegal.</p> <p>6. Same — Construction op Statute,</p> <p>Pol. Code Cal. § 595, after enumerating certain duties of an insurance commissioner, further requires him to “perform all other duties imposed upon him by the laws regulating the business of insurance in this state, and enforce the execution of such laws.” Held, that this does not enlarge his jurisdiction, or confer on him any authority to perform a duty not specified or to execute a purpose not sanctioned by the law.</p>

The bill in this case was filed in the circuit court for the district of Minnesota, for the purpose of determining the ownership of 160 acres of land situated in that state, as between the complainant and defendant, it appearing that the legal title of the land is vested in the defendant, liichard Dowman, under a patent of the United States duly issued to him under date of March 17, 1897.

<p>1. The Fourth Section of the Act to Regulate Commerce.</p> <p>If a greater charge he made for a shorter than for a longer distance over the same line, etc., and the circumstances and conditions at the longer distance point are substantially similar to those at the shorter distance points, it is a violation of the fourth section; but if the circumstances and Conditions at the longer distance point are substantially dissimilar, within the meaning of the act, to those at the shorter distance point, the fourth section is not violated.</p> <p>2. Same.</p> <p>If the circumstances and conditions at the longer distance point are substantially dissimilar from those at the shorter distance point, then the fourth section of the act is inapplicable. Oases cited and followed: In re Louisville & N. R. Co., 1 Interst. Commerce Com. R. 67; 1 Interst. Commerce 'Com. R. 278; Interstate Commerce Commission v. Atchi-son, T. & S. F. R. Co., 50 Fed. 300; Behlmer v. Railroad Co., 71 Fed. 839; Interstate Commerce Commission v. Alabama M. Ry. Co., 18 Sup. Ct 45, 168 U. S. 144. Case cited and disapproved; Interstate Commerce Commission v. East Tennessee, V. & G. Ry. Co., 85 Fed. 107.</p> <p>8. Same- — Similarity of Circumstances and Conditions — Competition.</p> <p>Competition is one of the most obvious and effective circumstances that make the conditions under which a long and short haul is performed dissimilar, and as such must have been in the contemplation of congress in the passage of the act to regulate commerce. Case cited: Interstate Commerce Commission v. Alabama M. Ry. Co., 18 Sup. Ct. 45, 168 TJ. S. 144.</p> <p>4. Same — Competition between Railways.</p> <p>Railway competition may create such dissimilar circumstances and conditions as exempt the carrier from an observance of the long and short haul provision. The fourth section declares that the carrier shall not make the higher charge to the nearer point under substantially similar circumstances and conditions. If the circumstances and conditions are not substantially similar, then the section does not apply, and the carrier is not bound to regard it in the making of its tariffs. If railway competition does actually control the rate at the more distant point, that rate is not made under the same circumstances and conditions as is'the rate at the intermediate point, and tlie higher rate is not prohibited by the fourth section. Oases cited: Savannah Bureau of Freight & Transportation v. Charleston & S. Ry. Co., 7 Interst. Commerce Com. R. 479; 11 Ann. Rep. Interst. Commerce Com. pp. 37-43.</p> <p>5. Same — Power of Courts and Commission in Regard to Rates.</p> <p>Where the circumstances and conditions at the longer distance point are substantially dissimilar, the carrier may judge of this for itself, in the first instance, and fix the rates for the longer distance point without violating the fourth section of the act; but this does not preclude the courts or the commission from inquiring as to whether the rates to the shorter distance points are unjust or unreasonable, or whether they constitute undue preference for, pv unjust prejudice against, any locality. Case cited: Interstate Commerce Commission v. Alabama M. Ry. Co., 21 C. C. A. 51. 74 Fed. ,723; Id., 18 Sup. Ct. 45, 168 U. S. 173.</p> <p>6. Same.</p> <p>In order to constitute dissimilarity under the fourth section of the act, the competition must be real, and not imaginary or trifling.</p> <p>7. The Third Section of the Act to Regulate Commerce — Undue Preference.</p> <p>Railway companies are only bound to give the same terms to all persons alike under the same conditions and circumstances, and any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. Case cited: Interstate Commerce Commission v. Baltimore & O. II. Co., 12 Sup. Ct. 844, 145 U. S. 283.</p> <p>8. Same — Competition.</p> <p>If the lesser charge to the longer distance point results from dissimilar circumstances and conditions brought about by competition, it cannot be said to be a preference which is undue or unreasonable.</p> <p>9. Same.</p> <p>All the evidence shows Is that the rate to Atlanta, the longer distance point in this case, is forced on the railroad officials by competiiion. There is no evidence of any improper desire on the part of these officials to give Atlanta a lower rate or the local shorter distance points a higher rate. The matter is controlled by existing competitive conditions. Unless the rates complained of, as compared with each other, violate the fourth section of the act, there seems to be very little ground for claiming that they violate the undue-preference provision of the third section. Case cited: Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 56 Fed. 947, 948.</p> <p>10. Same.</p> <p>Government should not undertake the impossible, but injurious, task of making the commercial advantages of one place equal to those of another. It might as well attempt to equalize the intellectual powers of its people. There should be no attempt to deprive a community of its natural advantages, or those legitimate rewards which flow from large investments, business industries, and competing' systems of transportation to facilitate and increase commerce. The act to regulate commerce has no such purpose. Case cited: Brewer v. Railway Co., 84 Fed. 258.</p> <p>11. Tub First Section of the Act to Regulate •Commerce — Reasonableness of Bates in and of Themselves.</p> <p>The first section provides that all charges for the transportation of property. etc., shall be reasonable and just. There is no evidence to justify a finding that the rates charged to the shorter dista nee points in this case are unjust and unreasonable in and of themselves. The mere fact that lower rates which are charged to a longer distance competitive point pay something above the cost of the service of carriage does not show that the shorter distance rates are unreasonable.</p> <p>12. Same — Combination Rates.</p> <p>The rates to the shorter distance points in this case are made up of a highly competitive rate from point of shipment to Chattanooga, added to a local rate to destination fixed by the Georgia Railroad Commission. The rates in question, wlxen separately considered, are not unreasonable or unjust. On the contrary, the testimony is that each is reasonable of Itself. Case cited: Interstate Commerce Commission v. Alabama M. By. Co., 21 C. 0. A. 51, 74 Fed. 723.</p> <p>18. The Second Section of the Act to Regulate Commerce.</p> <p>The second section deals with preferences as between shippers, and not as between localities, and it is conceded to be wholly inapplicable to this ease.</p>

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

<p>Negligbkcb- — Defective Railway Pi.atpoiuh.</p> <p>One traversing a railway platform merely to deliver an article sold by him to persons on a train is entitled to no higher degree of care on the part of the railroad company with respect to keeping its platform in good condition than is due from a municipality to the public in respect to its streets, and hence it is not liable for injury resulting from mere slipperiness due to sleet and snow recently fallen.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by the Sigua Iron Company against Benjamin D. Greene. Judgment for plaintiff, and defendant appeals.</p>

<p>This cause comes here on a writ of error brought by plaintiff below to review a judgment of the circuit court, Southern district of New York, in favor of defendant below, said judgment being entered upon a verdict directed by the court.</p> <p>The action was brought by plaintiff, a West Virginia corporation, to recover a balance unpaid on some stock in said company, which it claimed to have been owned by defendant. The following outline of the facts and history of the case sufficiently indicates the points discussed in the opinion, infra: In. the early part of the year 1890 a number of persons known as the “Sigua Syndicate” had obtained and held an option on certain mining property, — the legal title seems to have been in one E. D. Smith, as trustee, — and for the purpose of taking over and operating such property the plaintiff corporation was formed in April, 1890. Its authorized capital stock was $5,000,000. Of this $1,000,000 was treasury stock. $1,000,000 was issued full paid, and $3,000,000 was issued 65 per cent. paid. By an agreement known as the “Sigua Syndicate Agreement” all of the stock of this’ company was underwritten. The several signers agreed to transfer the option and leasehold to the company for said $5,000,000 capital stock, to return $1,000,000 of the full-paid stock to the company to be held as treasury stock for company purposes, and to take the number of shares set opposite their names, both of full paid and of 65 per cent, stock. All rights to any stock secured to the subscribers under this agreement were divided into 30 equal (syndicate) shares, and defendant subscribed, through E. D. Smith, his agent, duly authorized to make such subscription, for one-half share. In due course the shares of stock coming to defendant under this agreement were issued to him. All assessments thereon have been duly paid in money or services, and no claim by reason of his holding such shares has been made against him. Some of the subscribers to the Sigua Syndicate agreement, being of the opinion that they were taking more of the stock than they cared to hold, formed a pool to dispose of such surplus of 65 per cent, 'paid stock. Of course, no one wished to part with the full-paid stock. The object was presumably to get rid of possible liability for future calls. E. D. Smith was one of this pool. He contributed 1,250 shares, the whole number of shares in the pool being 10,000, which was one-third of the total number of 65 per cent, paid shares to be issued by the company. These 10,000 shares were put in Smith’s hands by the members of the pool, to be disposed of. It turned out that considerably less than half of this pool of 10,000 shares was thus disposed of. The balance, of course, remained the property of the original subscribers, and was subsequently placed, or ought to have been placed, in their names on the books of the company. The fundamental question in dispute here is whether 400 of these 10,000 shares was disposed of to the defendant, or whether its original holder is still the owner, and liable for any unpaid balances thereon. The agreement by virtue of which it is contended that defendant engaged to take said 400 shares, and touching them, to become a stockholder in the company, is as follows:</p> <p>“Agreement of purchase of Sigua Iron Company Stock. Capital stock, §5,000,-000. Par value, $100 per share. $1,000,000 of capital stock to be left in the treasury of the company.</p> <p>“We, the undersigned, hereby agree with the Sigua Syndicate to purchase from them, at $35 per, share, the number of shares (of the par value of $100 each), set opposite our names, respectively, the same being 65 per cent, paid, and liable to further calls and assessments to the extent of 35 per cent., said 35 per cent, being payable Vio, or 10 per cent., thereof, on call, and the remainder as required, probably at the rate of Vio, or 10 per cent, of said 35 per cent., every two months, or a proportionate part in case of over-subscription:'</p> <p>Number Amount of Shares, to be Paid. “Name. Address.</p> <p>1,000 35,000 B. IX Greene. 50 Broadway.</p> <p>500 17,500 I. L. Pierson. Caro Adolph Boissevaln & Co., Amsterdam.</p> <p>500 17,500 Koberl Fleming, Per 13. IX S. Care Maitland, Phelps & Co., New York.</p> <p>100 3,500 W. M. Ohauvenet. St. IjOUís, 709 Pine St.</p> <p>100 3,500 Samuel Bell, Jr. 208 So. 4th St.</p> <p>100 3,500 H. M. Sill. Schwl Lave, Gtn.</p> <p>200 7,000 W. \V. McKee. Catasanqua.</p> <p>100 3,500 3. W. Fuller. Chas. H. Audon.</p> <p>A. P. Berlin, Per E. D. S. Slatington, Pa, CO UI o o © © r-i</p> <p>F. F. Yandervoort. Phg., Pa. CO ÜI o o © © rH</p> <p>200 7,000 M. E. Olmstead, Per E. IX S. Harrisburg.</p> <p>50 1,750 Paul Thompson. 206 So. 4th St.</p> <p>100 3,500” B. J. Collins. Bullitt Building.</p> <p>The Sigua Syndicate did not sign this agreement, nor, so far as appears, was it or any agreement to sell ever signed by any of the members of such subsyudicaie or pool. All of these transactions occurred before any certificate of stock had been made out by the company. On July 8, 1890, three certificates wore made out to E. IX Smith, trustee, — two each for 10,000 shares full paid, and one for 29,995 shares 65 per cent, paid, and were issued to him on that day. Thereupon, and on the same day, he delivered back two of these (one of the 10,000 share certificates and the 29,995 share certificate), indorsed with a statement to whom the shares should be transferred. Transfers were thereupon made upon the books of the company, and stock certificates prepared in conformity to such list. Two certificates were made out in the name of defendant, covering his half share under the original syndicate agreement, and, in addition, one for 600 and one for 400 shares.</p> <p>It will be observed that defendant’s name is subscribed to the agreement of purchase for 1,000 shares. He accepted 600 of these, took stock certificate therefor, and, so far as appears, has responded to any calls Ihereon. It is as to the balance only — 400 shares — that dispute has arisen. The defendant admits his signature to this document; his contention, briefly stated, being that he signed upon an express understanding with the representative of the sellers that he was to take only such part of the 1,0.00 shares as he could find outside purchasers for; that he notified Smith, the representative of the seller, and also notified the president of the company, that ho had been able to place only 600 shares, and would take only that quantity, and that his contention as to the number of shares of stock which should be thus allotted to him was, so far as he knew, always acquiesced in by the company. He insists that he did not know these 400 shares had ever been transferred to him on the books, and that he never authorized or acquiesced in such transfer.</p> <p>Upon the first trial of the action the case went to the jury, and plaintiff recovered verdict for xhe full amount. Upon appeal to this court judgment was reversed. The opinion is reported, but not in full, as Greene v. Iron Go., in 22 O. O. A. 036, 76 Fed. 917.1 Upon the new trial two specific questions were put to the jury and upon their answers being received verdict was directed for defendant.</p>

<p>1. Corporations — Authority op President — Estoppel.</p> <p>A corporation, which by resolution has empowered its president to pledge a contract, under which money is due it, as collateral security for money borrowed, cannot claim that the terms of the pledge made by the president are in excess of the authority conferred on him, when at the time of the pledge it was cognizant of all the particulars thereof, and received the money borrowed, and gave no sign of repudiating the transaction.</p> <p>3. Same.</p> <p>A pledgor cannot object that a sale of the thing pledged by one acting as agent of the pledgee was unauthorized by the latter, when it appears that such agent acted upon an assumption of authority, and fhat the pledgee was aware of the sale, and never made any objection to It.</p> <p>.8. Pledge — Sale by Pledgee — Notice.</p> <p>A pledgee, authorized by the terms of the pledge to sell the securities without notice to the pledgor, is not bourd to notify the pledgor of the grounds on which he exercises the power of sale.</p> <p>4. Bills and Notes — Maturity—Demand.</p> <p>When a note is marie payable five days after demand, an express demand in explicit terms is not in all cases and for all purposes necessary. If the payee signifies to the maker his desire for payment in such manner as to be the equivalent of a request, this is sufficient.</p> <p>5. Same — Effect of Sale.</p> <p>A sale of collateral by the pledgee pursuant to the terms of the pledge conveys the entire interest, so that the pledgor is not entitled, as against the purchaser, to a surplus realized by him beyond the amount for which the pledge was made.</p> <p>8. Same — Expenses of Realizing on Pledged Security.</p> <p>A corporation, claiming money under a contract, after instituting suit thereon, pledged the contract with a third person as collateral, but continued to prosecute the suit in its own name, with a view of realizing for itself a surplus above the amount of the debt secured by the pledge. After it obtained decree, one who had purchased the contract from the pledgee under his power of sale intervened, and claimed the proceeds of the decree. Held, that the pledgor was not entitled to be repaid out of the fund the expenses incurred in prosecuting the suit.</p> <p>7. Attorney and Client — Lien for Services.</p> <p>The rule giving attorneys and solicitors a lien upon the recovery for compensation for their services extends also to expenses incurred in rendering the services.</p>

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

<p>i, Principal and Surety — Official Bonds — Negligence op Obligee.</p> <p>Neither the negligence nor failure of an obligee in an official bond, in the discharge of some duty to a third party, nor his negligence or laches in enforcing a compliance with its condition, will release the sureties. Nothing less than the breach of a covenant which the obligee has made, or connivance at the principal’s breach of the bond, or knowledge of such breach, and a continuance of his employment without communicating the fact to his sureties, or such a willful shutting of the eyes to the evidences of the breach as warrants the inference of connivance, will have that effect.</p> <p>2. Same.</p> <p>Mere neglect of an internal revenue collector to comply with the laws and regulations requiring him to frequently examine and verify the accounts of his deputy, and see that he faithfully discharges his duty, will not release the sureties on the deputy’s official bond from liability for defalcations, which a strict performance of these duties might have prevented.</p>

<p>Accident Insurance — Shooting by Insane Person.</p> <p>An exception in an accident policy of “intentional injuries inflicted by the insured or any other person” docs not include death from being shot by an insane person without capacity to form an intention to inflict such injuries, or to understaud the nature .and quality of his act.</p>

<p>1. Fire Insurance — Construction of Policy.</p> <p>A policy ,on goods in a warehouse contained a clause which declared that “if a building or any part thereof fall, except as the result of fire, all insuranee hy this policy on such building or its contents shall immediately cease.” The building fell, and the goods- were destroyed by fire; but whether the fall was caused by the fire, or by a gale of wind, was the matter in issue. Plaintiff requested a charge that, if the building or goods were on fire before the building fell, the company was liable, even though it would not have fallen but for the wind. Held, that the court properly rejected this request, and correctly charged that, if the fall was caused by the fire, the company was liable, but, if it resulted from some other cause, it was not.</p> <p>2. Sam;-;.</p> <p>While a policy which is ambiguous or of doubtful moaning should be construed most strongly against the insurer, yet, if its terms are clear and unambiguous, they are to be taken in their plain, ordinary sense, and no construction is necessary.</p> <p>3. Appeal and Error-Question not Baised Below.</p> <p>A question which was not called to the attention of the court below by any objection or request for instructions will not be considered on appeal or writ of error.</p> <p>4. Opinion Evidence — When Adkissible.</p> <p>There is a recognized exception to the general rule requiring a witness to state facts, and not conclusions, which permits him to state his inference or opinion from facts he sees or knows, when he draws- it from so many minor details that it is impossible to state them so that a jury could deduce a just inference from his narrative. But on an issue as to whether a building containing insured goods fell as the result of fire, or was blown down by a high wind, held, that the court'committed no error in refusing to permit witnesses, who testified that they saw the roof on fire, and bad seen other buildings on fire before, to give their opinions as to whether it was still standing when they saw it burning.</p> <p>5. Same.</p> <p>The general rule that witnesses should state facts, and nob conclusions, should be strictly followed; and, whenever it is doubtful whether a case falls under the rule or one of its exceptions, the wise course is to place it under the rule.</p>

<p>.1. Illegal Use of Mails — Schemes to Defkaüd — Lottery Schemes.</p> <p>Rev. St. § 5180, is general in character, and makes it a criminal offense to use the mails for promoting schemes to defraud in general; and the amendment of March 2, 1889, only alters its scope hy adding a certain class of cases particularly described therein. Section 3894, notwithstañd-ing some general language therein, is specific, and designed to punish the use of the mails for promoting lottery schemes; and the amendment of September 19, 1890, merely makes further and specific provisions and amendments, without changing its scope. An indictment, therefore, for using the mails to defraud, not hy any lottery scheme, is referable to section 5480, and is to loe determined under that section, without reference to the terms of section 8894.</p> <p>B, Same — Venue of Offense.</p> <p>A prosecution under Key. St. § 5480, prohibiting the use of the post office for promoting a scheme to defraud, can only be instituted in the district in which the fraudulent matter was placed in the post office.</p>

<p>1. DefRAuding United States — Forged Affidavit.</p> <p>One presenting accounts to the government cannot be convicted under Rev. St. §§ 5418, 5479, for forging the name of a justice of the peace to the affidavit attached thereto, unless it. be done to defraud the United States.</p> <p>2. Same — Indictment.</p> <p>An indictment charging that defendant forged the name of a justice of the peace to accounts presented by him to the government accounting officers, “with intent to defraud the United States,” must be regarded as based on Rev. St. §§ 5418, 5479, and not on section 5421, which denounces the making, altering, forging, etc., of papers, for the purpose of “obtaining or receiving * * from the United States or any of their officers or agents any sum of money.”</p>

This cause comes here upon writ of error sued out by the admin-istratrix of plaintiff below to review a judgment of the circuit court, Southern district of New York, in favor of defendant below, the collector of the port of New York, upon a verdict directed in his favor by the circuit judge.

This is an application by the collector of customs at Oswego, N. Y., for a review of the decision of the board of general appraisers reversing the decision of the collector as to the rate of duty on certain pine lumber imported by E. W. Bathbun & Co. in November, 1897.

This appeal is by the Great Northern Ráilway Company from an order of the circuit court for the Southern district of New York, which granted a preliminary injunction against the infringement by that corporation of claims 1, 2, and 3 of letters patent No. 376,837, applied for October 1, 1887, and issued to George Westinghouse, Jr., on January 24, 1888, for improvements in fluid pressure brake mechanism.

This was a suit in equity by the A. B. Dick Company against Frederick A. Wickelman for alleged infringement of a patent for stencil sheets. In the circuit court a decree was rendered for an account of profits and damages (74 Fed. 799), and afterwards the cause was heard on exceptions to the master’s report, and such exceptions were overruled. 80 Fed. 519. From the final decree thereafter rendered the defendant has appealed.

This was a suit in equity by the Edison Electric Light Company against the E. G. Bernard Company and others for alleged infringement of a patent for improvements in regulating the generative capacity of dynamo-electric machines. This is an equity action, founded upon letters patent, No. 264,608, granted to Thomas A. Edison, September 19, 1882, for an improvement in regulating the generative capacity of dynamo-electric machines.

This was a suit in equity by the Thomas Roberts Stevenson Company against Harry W. McFassell, Jr., for alleged infringement of a patent for improvements in ranges and stoves.

<p>This was a suit in equity by the Emerson Company of West Virginia against Bobert Mitchell Nimocks for alleged infringement of a patent for a lumber drier.</p>

This was a suit in equity by the Consolidated Store-Service Company against John W. Wilson and others for alleged infringement of letters patent No. 357,851, issued February 15, 1887, to Edwin P, Osgood, and No. 298,192, issued February 5, 1884, to Byron A. Osgood and Edwin P. Osgood, which patente are for cash carriers, or store-service apparatus. In the circuit court a preliminary injunction was granted (83 Fed. 201), and the defendants have appealed.

This was a libel in admiralty by the Weber G-as & Gasoline Engine Company against ¡he steamboat L. B. X. The cause was heard on motion by the ciaimaut to dismiss the libel tor want of jurisdiction.

This was a libel by John Barneson and Bicliard Chilcott, co-partners doing business under the firm name and style of Barneson & Chilcott, against the bark Highland Light and the ship Occidental, to recover for services rendered as stevedores in loading these vessels.

<p>1. Maritime Liens — State Statutes — Priorities.</p> <p>A lien under a state statute, for work and materials furnished in the home port, takes precedence of a mortgage executed after the work was completed.</p> <p>2. Same — Waiver—Taking Note. .</p> <p>The rule that a note taken for the amount of a maritime lien for repairs is presumptively taken as collateral security, and does not, of itself, defeat the lien, applies to the case of a lien acquired under a state statute.</p>

<p>SbameN- — Short Allowance — Scurvy—Proof Iksui’mcirnt.</p> <p>Upon claims for damages for short allowance and alleged consequent scurvy, on a voyage from Shanghai and Manilla to New York, Mid not sufficiently established by the evidence.</p>

This was a libel in personam by John Haveron and Michael Brennan against Mary R. Goelet and George G. De Witt, as executors of the last will and testament of Ogden Goelet, deceased, to recover for services in procuring a crew for a yacht, and in boarding them a.t the master’s request. The cause was heard on exceptions for want of jurisdiction.

Libel by Franklin Allen, master of the canal boat J. W. Whitney, against the steam tug Florence, to recover damages for negligent towing of the canal boat on the 31st day of August, 1897, at a point on the Hudson river about opposite the arsenal wharf at Watervliet, N.Y. The libel alleges that the Florence agreed to tow the Whitney, having a cargo of corn, from Troy to Albany for an agreed price.

<p>WnAira1 age — Statutory Rates — Scows.</p> <p>Under the classification of vessels by the New York statute prescribing different rates for wharfage, held, that scows should be classed with “barges,” and charged at the same graded rates.</p>

Tills was a libel in rem by Robert Mackill against the steamboat New Hampshire to recover for damages to a steamship from swells while moored in the slip.

<p>Charter Party — Construction—“Full Reach of Whole Cargo Capacity” —Acquiescence in Disputed Claim — Protest.</p> <p>A charter of the steamship M. for a fruit cargo and other merchandise from Mediterranean ports at a lump sum, granted the “full reach of the whole of the cargo capacity including half deck.” At Palermo the charterer claimed the right to load fruit in the cattle spaces on the spar deck, for which the M. had been fitted; the captain refused to load in those spaces, and the dispute was referred to the owner in London, who telegraphed: “Allow cattle deck, but under protest and shipper’s risk”: whereupon the fruit was received, but the master lodged a protest claiming extra freight for the fruit so carried, and by this libel sues for this extra freight money. Ed A that the charter granted all cargo spaces for which the ship was arranged and adapted, and included the “shelter deck” for fruit, which was less burdensome and inconvenient to the ship than cattle in the same spaces; (2) that the receipt of the fruit on the owner’s order, was a voluntary acquiescence in the respondent’s claim of right, without duress, and allowed no subsequent right of recovery of extra freight, contrary to the intent of the charter; and that the master’s claim thereto in the protest was without authority and ineffectual.</p>

<p>Qhnerai, Average — Apparent Danger — Opening Shucks— Damage to Cargo.</p> <p>Voluntary damage to cargo to avoid an apparent danger menacing both ship and cargo is sufficient to support a general average. At sea the W.’s fore-peak was found suddenly filled with water, believed by the master .and officers to come from a hole below the water line, which, if true, would prevent the voyage from being prosecuted, as ship and cargo would be in danger. To make the necessary examination of the fore-peak, the sluices were opened to the next compartment, and the water allowed to run through it, and some flour stowed there was necessarily damaged thereby. The leak was by that means discovered to be in the hawse pipe only. It was repaired, and the voyage proceeded with. fieW, that the water damage to the flour -was a proper general average charge.</p>

<p>This was a libel by the Indemnity Mutual Marine Assurance Company, Limited, of London, against the United Oil Company.</p>

<p>This was a libel in rem by John Morrison against the steam yacht - Algonquin to enforce an alleged lien for supplies.</p>

<p>Carriage by Sea— Connecting Lines — Damage in Transit — Pro Rata Freight.</p> <p>When goods, shipped for long distances under through bills of lading, which recognize several distinct carriers and stages of transportation, are damaged at one of the recognized points of transshipment so that their further transportation becomes impracticable, and an immediate sale is necessary for the interests of all concerned, the carrier which has performed the last stage of the carriage, and advanced the freights of preceding carriers, is entitled to pro rata freight.</p>

This was a libel in rem by John B. Eaton and others, owners of the schooner Dreadnaught, against the steam tng John F. Gaynor, to recover damages resulting from a collision.

<p>1. Collision — Signals not Noticed — Signals Omitted — Bounding out op Slip.</p> <p>The ferryboat O. rounding out of her slip at Broadway, Williamsburg, and going up the East river against the ebb tide, came in collision at a small angle in about mid river off S. Fifth street, with the passenger steamer R. coming down at 12 to 13 knots speed. The R. when about 600 yards away gave one whistle and ported. The O. did not hear that signal and gave no whistle until too late; she claimed that the R. was so close to the Brooklyn shore that the O. was obliged to go to the left, but the contrary was found upon the evidence. Beld, that the O. was in fault; (1) for lack of lookout and attention to the R.’s signal; (2) for giving no signal, if she designed to cross the R.’s bow, which was on the O.’s starboard hand; (3) for not rounding to pass to the right of mid river as she mlglit easily have done, the courses of the two vessels as she rounded, coming about head and head. Held, also, that the It. was justified in counting upon that navigation by the O., in the absence of any signa* to the contrary, but that the K, was to blame for her speed above the statute limit of 10 knots, and that the damages should bo divided.</p> <p>H. Damages — Personal Injuries — .Nervous Shock — Cargo—Harter Act.</p> <p>Claims for injuries to passengers or for loss of baggage are not within the third section of the Harter act.; and for loss of cargo, the exemption of one vessel from paying her share, in case of mutual fault, docs not increase the liability of the other vessel.</p>

<p>Collision — Personal Injuries — 1Ticket Exemptions — $100 Limitation — Har-ter Act.</p> <p>' On a collision in New York harbor causing loss of the hand of a boy four years old, a steerage passenger, held that the steamer, being in fault, was not exempted by the third section of the Harter act, nor by a limitation to iglOO for any personal injuries expressed in the ticket, this not being a reasonable provision; nor by exemptions from liability for negligence.</p>

<p>1. Carriers by Sea — Passengers’ Baggage — Sea I’erirs — Burden of Proof —Stowage—Exemptions for Negligence — Foreign Law — Harter Act.</p> <p>Extraordinarily rough weather warrants a finding of damage to cargo or baggage by sea perils, provided proof of ordinary good stowage is first given by the ship. This preliminary burden is upon the ship, and cannot rest upon mere presumption. Exemptions for negligence contracted for in a foreign port on a foreign vessel, though valid where made, will not excuse torts and consequent damage within our territorial jurisdiction. The Harter act does not apply to passengers or their baggage.</p> <p>2. Same — Limiting Liability by Contract.</p> <p>It is competent for carriers by sea to limit their liability for passengers’ baggage to a specified sum, unless higher rates are paid for any excess in value; and when this provision is plainly incorporated in the body of the ticket, and ampio opportunity is afforded the passenger to know it and comply with it, it becomes a part of the contract of carriage and binding, and in this case was held to limit the libelants’ recovery.</p>

This was a libel in rem by Augustus Demarest and others against the steamship Eoman Prince to recover ior salvage services rendered in extinguishing fire.

<p>1. Removal of Causes — Suits to Collect Taxes.</p> <p>The proceeding for the collection of delinquent taxes provided for by chapter 67 of tlie Laws of 1897 of North Dakota is a “suit” within the meaning of Act 1887-88.</p> <p>2. “Suit” Defined.</p> <p>A proceeding in a court of common law or equity, which culminates In a judgment that conclusively determines a right or obligation of the parties, so that the same matter cannot be further litigated except by writ of error or appeal, is a “suit,” within the meaning of the federal judiciary acts. In re City of Chicago, 64 Fed. 897, criticised.</p> <p>S. Jurisdiction — Matters of Procedure.</p> <p>The act of 1887-88 does not require, as a condition of the removal of a case to the federal court, that in matters of procedure the case be one that could have originally been commenced in such court.</p> <p>4. Same — Separable Controversy.</p> <p>The proceeding under the North Dakota act of 1897 is not a single suit, but as many suits as there are parcels of land; and, if the same person owns several parcels, such suits are consolidated by bis joining all the parcels in a single answer.</p> <p>5. Same — Diverse Citizenship.</p> <p>Where jurisdiction depends upon the citizenship of the parties, it is the party that is named in the record that is meant; and an objection that there might be other parties entitled to defend, but not named in the record, will not avail to defeat jurisdiction.</p>

<p>This was an action by Lewis W. Cox against J. Frank G-ilmer, Samuel McCue, and Percy F. Payne to recover damages for false imprisonment. The case was heard on demurrer to the declaration for want of federal jurisdiction.</p>

The Louisville & Nashville Railroad Company — a corporation organized and existing under the laws of the state of Kentucky, and a citizen of that state — owns 519 miles of railroad in Tennessee.

This was a proceeding in equity instituted by the independent district of Pella city against R. R. Beard, receiver of the First National Bank of Pella, for the purpose of compelling the receiver to recognize as a trust fund, and pay in full, the amount of a balance deposited by the treasurer of the district. There was a finding and decree in favor of complainant in the circuit court, and the receiver appeals.

This is a bill in equity filed by the Bank of Kentucky, a corporation organized under the laws of Kentucky, to restrain the assessment and collection of certain taxes for the benefit of the defendants the city of Louisville, the county of Franklin, and the city of Frankfort.

<p>Heard on demurrer to the bill and motion for preliminary injunction.</p> <p>The Bank of Commerce is a state bank of Kentucky, organized under a statute of that state approved February 3, 1865. It is situated in Louisville, and when the Hewitt act was passed, to amend the revenue laws of the commonwealth of Kentucky, May 17, 1886, it duly accepted the terms of that act before the meeting of the next legislature of Kentucky. One of the grounds relied upon in the bill was that of res judicata. The averments of the hill upon this point were contained in paragraphs 4 and 5 of the bill, as follows:</p> <p>Paragraph 4. Your orator shows that early In the year 1894, and before the 4 th of May, 1894. the defendant the city of Louisville, claiming to act under the authority of the statute governing cities of the first class, and of its ordinances adopted in pursuance thereof, demanded of your orator, and of every other bank and trust company in tbe city of Louisville, a tax equal to 4 per cent, of its gross receipts; and, this demand being refused, legal proceedings were commenced in the city court of Louisville, in behalf of the city, against all of said hanks and trust companies, including your orator. At that date the tax upon the gross receipts of the hanks, if enforceable, was payable to the sinking fund of the city of Louisville; and, with a view of embarrassing the sinking fund of the city as little as possible, the banks, through their committee, held a meeting with the commissioners of the sinking fund; and it was agreed between the city of Louisville and its sinking fund commissioners, upon the one part, and the banks and trust companies of the city of Louisville, including your orator, upon the other, that pending the litigation which, by the agreement, was to be inaugurated, and without prejudice to the right of the banks they would make payments and loans to said sinking fund, as follows: First. The sinking fund was to accept from each of said banks and trust companies a payment equal to the difference between the amount which the banks and trust companies would have to pay to the state under the present law and the amount which they would be required to pay for state taxes under the provisions of the Hewitt bill. This sum, it was provided, should be an actual payment, and not be repaid under any circumstances; but its payment was not in any manner or to any extent to prejudice the banks or crust companies paying it, or to be taken as a waiver of any legal right which they might have in the premises. Second. In addition to making the above payments, the banks and trust companies, save those which were to be selected to test the question involved, should each lend to the sinking fund a. sum which, added to said payment, would equal 4 per centum of its gross earnings during the year 1893; and the sinking fund would execute for said loans its obligations, agreeing to repay tlie same with interest at 4 per centum per annum: and if it should be finally adjudged by tbe court of last resort that said banks or trust companies were not liable to pay the license, fee required by the ordinance aforesaid, but if if should be finally adjudged iliat they were liable to pay said license fee, then said loan should be taken and deemed as a payment of said license fee, and the obligation to repay same should be void. ’ Third. It was agreed that the banks or companies selected to test the questions involved would each lend the sinking fund a sum equal to 4 per centum of the gross earnings for the year 1893, and would receive therefor the obligations of the sinking- fund, as above described. Fourth. If was further agreed that that arrangement was entered into with the understanding- that the banks and companies would institute without delay, and diligently prosecute, such action as might he necessary to settle and adjudge the right and liabilities of the parties in the premises, and pending such proceedings the sinking fund would not prosecute them, or any of them, for doing business without license. The substance of this agreement was spread at large upon tjae records of the sinking fund, and a copy thereof is filed herewith as part hereof, marked “A.”</p> <p>The Exhibit A referred to is as follows:</p> <p>Sinking Fund Office, February 13,1894.</p> <p>A committee, consisting of Messrs. Thomas L. Barrett, John H. Leathers, and George W. Swearingen, appeared before the board on behalf of the banks, who are members of the Louisville Clearing House, and stated that it was the purpose of said banks to resist the payment of the license fee demanded of them under the license ordinance approved January 29, 1894, on the ground that said banks were not legally liable to pay the same; but, in order to save the sinking fund from any embarrassment occasioned by their refusal to pay said license fee, the banks, with two or three exceptions, were willing to enter into an i rrangement, whereby they would pay a part of the amount demanded of them, and lend the sinking fund the balance thereof, to be repaid, with interest at four per centum per annum, if it was finally decided and adjudged that the banks were not liable to pay said license fees. After discussion, the president was, on motion of Mr. Tyler, seconded by Mr. Summers, authorized to enter into the following arrangement with the different banks, trust and title companies who will be subject to the payment of the license fees if the license ordinance is finally adjudged to be valid and enforceable: First To accept from each of said banks and companies a payment equal to the difference between the amount they now pay to the state for state taxes and the amount they would be required to pay for state taxes under the provisions of what is known as the “Hewitt Bill.” This sum shall be an actual payment, not to be repaid under any circumstances, but its payment shall not in any manner or to any extent prejudice the banks or companies paying it, or be taken as a waiver of any legal right which they have in the premises. Second. In addition to making the above payments, the said banks and companies, save those selected to test the question involved, shall each lend the sinking fund a sum which, added to said payment, will equal 4 per centum of its gross earnings during the year 1893, and the sinking fund will execute for said loans its obligations agreeing to repay the same, with interest at four per centum per annum, when and if it shall be finally adjudged by the court of last resort that said banks or companies are not liable to pay the license fee required by the ordinance aforesaid; but, if it is finally adjudged that they are liable to pay said license fee, then the said loan shall be taken and deen? ed as a payment of said license fee, and the obligation to repay the same shall be void. Third. The banks or companies selected to test the questions involved will each lend the sinking fund a sum equal to ’four per centum of their gross earnings for the year 1893, and will receive therefor the obligations of the sinking fund as above described. Fourth. This agreement is to be entered into with the understanding that the said banks and companies will institute without delay, and diligently prosecute, such actions as may be necessary to settle and adjudge the right and liabilities of the parties in the premises, and pending such proceedings the sinking fund will not prosecute them, or any of them, for doing business without license.</p> <p>A true copy. Attest: J. M. Terry,</p> <p>Secretary and Treasurer.</p> <p>Stipulation between the city of Louisville, the commissioners of the sinking fund of the city of Louisville, and the banks, trust and title companies of the city of Louisville:</p> <p>It is agreed between the city of Louisville, the commissioners of the sinking fund of the city of Louisville, represented by H. S. Barker, city attorney, acting under the advice and by the authority of the board of sinking fund commissioners, given at a regular meeting of said board and the mayor of the city of Louisville, on one part, and the various banks, trust and title companies of the city of Louisville, acting by Humphrey & Davie and Helm & Bruce, their attorneys, of the other part — First. That in February, 3894, it ,was agreed between the city of Louisville and the board of sinking fund commissioners, acting together in the interest of the said city, and the various banks, trust and title companies, acting through their committee, to wit, Messrs. Thomas L. Barrett, John H. Leathers, and George W. Swearingen, and their counsel, to wit, Messrs. Humphrey & Davie and Helm & Bruce, that the question of the liability of said banks and trust and title companies to pay municipal taxes, either license or ad valorem, otherwise than as provided by the revenue law, commonly known as the “Hewitt Bill,” should be tested by appropriate litigation looking to that end. Second. In order to effectually test the question as to all of said companies, they were divided into three classes, it being understood that all who had accepted the provisions of the said Hewitt bill would fall in one or the other of the classes named, to wit: (A) Banks whose charters had been granted prior to 185(5; (B) banks whose charters had been granted subsequent to 1856; (0) national banks, — it being understood that the trust and title companies which had accepted the provisions of the Hewitt bill would fall in class B, named above. Third. In pursuance of that agreement, the sinking fund commissioners caused to be issued warrants against the Bank of Kentucky, representing class A, the Louisville Banking Company, representing class B, and the Third National Bank, representing class C; and these banks respectively applied for writ of prohibition against the city court of Louisville proceeding with the hearing, that being the manner pointed out by the city charter for testing the validity of city ordinances. It was distinctly understood and agreed at that time — and this agreement was made l’or the best interest of all parties to it — that if any bank in any class should eventually fail to establish the existence and validity of the contract which it was claimed was made under the Hewitt bill, that all of that class should thereafter regularly and promptly submit to the existing laws, and pay their taxes. And it was also agreed that if any bank of any class should succeed in establishing 'a contract and the validity thereof under the Hewitt bill, that that should exempt all banks and companies falling within that class from the payment of taxes, except as provided in the Hewitt bill. Fourth. On the faith of this agreement, all of the banks and companies aforesaid paid into the sinking fund the amounts of taxes claimed against them, under the terms and conditions named in the minutes of the sinking fund commissioners, of February 13, 1894, an attested copy of which is hereto attached as part hereof; but at a later date, and in further reliance upon said agreement, all said banks and companies, except those actually involved in the test cases, paid the whole of the amount of taxes claimed as against them by the city of Louisville, without reservation until the question thus raised should be finally disposed of.</p> <p>Humphrey & Davie. Holm & Bruce,</p> <p>For the Banks, Trust and Title Companies of the City of Louisville.</p> <p>H. S. Barker,</p> <p>City Attorney.</p> <p>Approved: C. H. Gibson,</p> <p>Prest. Comrs. Sinking Fund City of Louisville.</p> <p>A true copy. Attest: Huston Quin,</p> <p>Arthur Peter,</p> <p>M. McLouglilin.'</p> <p>So much of the certified transcript of the judgment in the proceedings in prohibition as is of importance has been set forth in the report of the case of Bank of Kentucky v. Stone, 88 Fed. 383. '</p>

<p>1. ÁTTOBNBT AND CLIENT — POWEB TO BIND CLIENT BY AgBEEMENT„</p> <p>The power of an attorney to hind his client by consenting that a decision in another case shall be binding on him in the case in question can only exist where the two cases involve the same questions of law and fact.</p> <p>2. Same.</p> <p>Whether trust companies háving no general banking powers, by accepting the burdens of the Kentucky tax law of May 17, 1886 (the “Hewitt Act”), thereby acquired an irrevocable contract right to exemption from other forms of taxation, is a different question from that as to whether regular banking corporations, by like conduct, acquired such a right; and hence, in proceedings brought by trust companies and banks against a city to establish an exemption on this ground, the city attorney has no authority to hind the city by an agreement that the suits involving the rights of the trust companies shall abide the result of suits involving the rights of the banks.</p> <p>3. Res Jtjdicata — -Questions Concluded.</p> <p>An adjudication that banks accepting the provisions of the “Hewitt Tax Law” (Act Ky. May 17, 1886) acquired an irrevocable right to exemption from other forms of taxation is not conclusive that trust companies, having no general banking powers, by like acceptance, acquired a similar exemption.</p>

<p>1. State Taxation of National Banks.</p> <p>The Kentucky revenue act of November 11, 1892, providing for the taxation of banks and other corporations, as applied to national banks, is a tax, not on the franchise granted by congress, but on the equivalent in value of its shares of capital stock, and is not therefore in violation of Rev. St. IT. S. § 5219, prescribing the manner in which national banks may be taxed by the states. .</p> <p>2. Same — Discrimination.</p> <p>When a. state taxing statute by its terms is designed to operate equally upon all banks', state and national, but, through the application of the doctrine of res judicata, certain state hanks are exempted from its operation, this does not result in such a discrimination against national banks as is forbidden by Rev. St. XT. S. § 5219.</p>

<p>1. Kws Judicata — Parties Concluded.</p> <p>In a suit by a bank to enjoin a county from collecting a tax, an adjudication that the bank had an irrevocable contract with the state for exemption from such taxes by reason of aecejrting the provisions of a certain prior act is not conclusive, in a subsequent suit involving the right of other counties and certain municipal corporations to collect taxes from the bank under the same statute.</p> <p>2. Same — Conclusiveness as to Party not of Record — Presence of Attorney.</p> <p>The fact that, in a suit to restrain a county from enforcing collection of a tax under a state law, the attorney general of the state appears in the court of appeals in behalf of the commonwealth, which is not a party to the record, does not make the adjudication res judicata as against the state, and as against other counties and municipalities thereof.</p> <p>8. Corporations — Repeal of Charter — Irrevocable Contracts.</p> <p>Act Ky. 1856, declaring that all charters and grants of or to corporations, or amendments thereof, and all other statutes, ‘’shall he subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed,” applies not only to subsequent grants, of original charters, but to extensions of pre-existing charters.</p> <p>4 Same — Extension op Bank Oiiarter.</p> <p>The Kentucky statute oí 1884 extending the charter of the Northern Bank of Kentucky without new conditions, except that ihe extension shall lie formally accepted by the bank, shows no intention that the extended charter shall not be subject to repeal or amendment in accordance with the provisions of the act of 1856.</p> <p>5. Taxation op Banks — Contract Exemptions.</p> <p>The Kentucky statute of 1886 known as the “Hewitt Act” lays a tax of 75 cents per share on banks and certain other corporations, and, in section 4 of article 2, declares that ail banks and corporations accepting the act shall be exempt from all other taxation so long as said tax shall he paid. Section C provides that the act shall be subject to the act of .1856, making repealable and amendable all charters or amendments, and other statutes thereafter passed. ZfeM, that the acceptance of the act by a bank merely created a contract exemption from other taxation which the legislature could revoke at pleasure.</p>

<p>This was a suit in equity by the Welsbach Light Company against William Mahler. The cause was heard on complainant’s motion for leave to discontinue.</p>

This is a suit in equity by W. A. Bickford and H. R. Sherrod against J. J. McComb to subject to the payment of their judgments against the Southern Oil Works assets of such corporation received by him on final distribution in insolvency proceedings. It was submitted on the pleadings, certain record evidence, and an agreed statement of facts. Prior to the transactions hereinafter mentioned, the Southern Oil Works was a Tennessee corporation, doing business at Memphis.

<p>1. Construction or Statutes- — Retrospective Legislation.</p> <p>A statute is not to be given a retrospective effect unless it clearly and unequivocally appears that such was the legislative intent.</p> <p>2. Limitation on Actions — Revivor on Judgment — Retrospective Legislation.</p> <p>Act Ark. April 8,1891, providing that no scire facias to revive a judgment “shall he issued hut within ten years from the date of the rendition of the judgment,” and that the act should take effect one year from Its date, was intended to have a retrospective operation.</p> <p>8. Circuit Courts op Appeal- — Jurisdiction—-Constitutional Questions.</p> <p>Under Act March 3, 1891, §§ 5, 6, a circuit court of appeals has no jurisdiction of a case in which the question is whether a state statute is void because it contravenes the constitution of the United States.</p> <p>4. Same.</p> <p>If it is claimed that a law of a state is void because it contravenes the constitution of the United States, a circuit court of appeals has no jurisdiction of the case, although it may involve the consideration of many other questions.</p>

<p>1. Stbket Railways — Liability vos Tort — 'Unauthorized Acts oí Employes.</p> <p>In the absence of losfiniony showing authority from the company, the act of a sfroot-railway conductor in causing the arrest of a former passenger immediately after ejecting him from the car for refusing to pay fare is outside the course of-his employment, so that no a clion will lie against the company for malicious prosecution and false imprisonment,</p> <p>% Same — Ratification ob1 Uhautiiorizei) Act.</p> <p>The action of a clerk in the claims department of a street-railway company, in endeavoring to convince a magistrate that a conductor was right in causing the arrest of a passenger after ejecting' him from the car for refusal to pay fare, is not a ratification of the conductor's unauthorized action, where the clerk was merely directed by his superior to go to the police court, “and see what the mailer was.”</p>

This action was upon two life insurance policies, Doth dated February 16, 1893, — one for the sum óf $20,000, and the other for $5,000, — insuring the life of Cassius C. Merritt, who subsequently died on April 27, 1894, at Duluth, Minn. The suit was brought by Hanson E. Smith, the defendant in error, as administrator with the will annexed of said deceased.

<p>1. Appeal and Error — Review—Special Findings of Fact.</p> <p>Whether a special finding of fact made by the circuit court is in accordance with the preponderance of the evidence, cannot be considered on a writ of error.</p> <p>2. Same — Mixed Questions of Law and Fact.</p> <p>The decision of a circuit court on a mixed question of law and fact cannot be reviewed on a writ of error.</p> <p>8. Sale — Validity—Change of Possession.</p> <p>A sale of personalty, not followed by open and visible or notorious change of possession or ownership, is void, under the law of Illinois, as against creditors of the seller.</p>

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

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

<p>1. Set-Out — Mutuality or Demands — Surviving Partners.</p> <p>In an action by a partnership, the defendant may plead in set-off a demand against a former partnership, of which the plaintiffs are the surviving members, and to which they succeeded.</p> <p>2. Witnesses — Use of Memorandum.</p> <p>Under the rule in Illinois, which is followed by the federal courts in that state, a witness may use a memorandum to refresh his memory only when he has an independent recollection of the facts. If ho can only testify to them because he finds them on his memorandum, he cannot properly either read or speak from It.</p>

Action by Susan Rogers, administratrix, against the Louisville & Nashville Railroad Company, for the death of her son. The court directs verdict for defendant.

<p>Usury — Action on Judgment — Res Judicata.</p> <p>In Kentucky, one who neglects to plead usury to an action for the debt, and suiters judgment to go against him, cannot, in an action on such judgment, interpose as a defense the amount of usurious interest paid prior to the judgment, though, under the state statutes as construed l)y the state courts, he would have a right, after paying the judgment, to sue, within one year, to recover the amount of usury embodied in it.</p>

<p>1. Accident Insurance — Construction oe Policy — Involuntary Asphyxiation.</p> <p>A clause declaring that the insurance does not cover injuries or death “resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled,” does not exempt the insurer from liability for death caused by involuntary and unconscious inhalation of illuminating gas, accidentally taken while asleep.</p> <p>2. Same.</p> <p>The word “inhaled,” as used in the above provision of the policy, means a voluntary and intelligent act by the insured, and not an involuntary and unconscious inhalation.</p> <p>8. Same.</p> <p>The words “or otherwise,” as used in the above provision, do not qualify the act of inhaling, but are used in connection with the preceding word, “accidentally,” and mean an injury of a kindred character.</p> <p>4 Same.</p> <p>Policies of insurance are to be liberally construed, and the conditions therein are to be construed strictly against those for whose benefit they are reserved. And any doubt or ambiguity as to the meaning of any clause in a policy should be resolved in favor of the insured, and against the insurer.</p> <p>6. Same.</p> <p>An insurance company, continuing to issue, without change, policies containing clauses which have been construed unfavorably to its contention by the highest court of the state in which the company is incorporated, may well be considered as issuing them with that construction placed upon them.</p>

<p>These were actions brought by the United States against William H. Riley to enforce a forfeiture of the value of various alleged fraudulent importations of merchandise at the port of New York, and motions were made to set aside the summons in each case.</p>

This was a suit in equity by Lever Bros., Limited, against George B. Pasfield, for alleged infringement of the trade-mark “Sunlight,” used in connection with a soap. Final hearing on pleadings and proofs.

<p>1. Patrvts -ístveíttioií.-An caratos son Latest» [Jn'dkrmiouki) Conduits.</p> <p>The production of a mandrel having at one end a handle for pushing it back and forth, and at the other a rubber rim which serves to break off and push or sweep ahead of it all the particles of cement that stick to the interior of a hollow tiling conduit for electric wires, held to involve patentable invention.</p> <p>2. Samp..</p> <p>The Camp patent, No. 467,650, for an apparatus for laying underground conduits for electric wires, held valid and infringed.</p>

This was a suit in equity by Carl Haggenmacher against William T. Nelson and J. H. Small, co-partners as the McAnulty Mill Works, and John A. McAnulty, for alleged infringement of reissue patent No. 11,252,. dated June 28, 1892 (original No. 428,907, dated May 27, 1800), and also letters patent No. 428,908, both issued to complainant, Carl Haggenmacher.

<p>1. Patents — Character op Invention — Prior Art.</p> <p>The question of the commercial success or failure of a prior patent is not controlling on the question of its relevancy, as illustrating the generic type of the patented machine in issue and the general process and path of development which the inventor claimed to follow.</p> <p>2. Same — Defect of Disclaimer — Construction of Claims.</p> <p>When an application Is rejected as anticipated, and the applicant then files a narrower claim accompanied by a disclaimer, he Is bound thereby, even though, In the light of subsequent developments, It may appear that possibly a more restricted disclaimer could have been framed, and that' the additional elements inserted in the claims were more specific than need be.</p> <p>8. Same-Construction of Claims — Development of Art.</p> <p>A subsequent advance in the art may show that a claim had a more extended scope than was originally supposed; but, when it covers such advance, it is not because the claim has advanced or enlarged with the advance of the art, but because of its original generic character.</p> <p>4. Same.</p> <p>When a claim, read in its common, ordinary meaning, is explicit and clear, there is no room for construction. Construction cannot be resorted to to create a doubt, and then a liberal interpretation be given to the doubt, in order to present to the patentee something he failed to claim.</p> <p>6. Same — Infringement.</p> <p>Changes of operation are not to be measured by mere words or terms, but by function and operative effect.</p> <p>6. Same — Manufacture of Glassware.</p> <p>The Arbogast patent, No. 260,819, for an improvement in the manufacture of glassware, construed, and held not infringed.</p>

<p>1. Patents — Novelty and Patentability — Patent as Evidence.</p> <p>The grant of a patent is prima facie proof of novelty and patentability, and, in the absence of countervailing proof, this prima facies must prevail.</p> <p>2. Same — Anticipation—Combinations.</p> <p>To find in the prior art each element, in isolation is not to anticipate the work of a patentee who, by inventive act, first evolves a new combination of these elements, which by their conjoined functions produce a new result.</p> <p>8. Same — Anticipation—Prior Publications.</p> <p>A prior publication, such as will defeat a patent, must contain a description of the complete and operative art or instrument so precise and particular that any one skilled in the art to which the invention belongs can construct and operate it without experiments or the exercise of inventive skill.</p> <p>4. Sami; — Telephone Circuit and Apparatus.</p> <p>The Oarty parent, No. 449,100, for telephone circuit and apparatus, held not anticipated, valid, and infringed.</p>

<p>This cause comes here on final hearing upon pleadings and proofs. The suit is brought for infringement by defendant of the three claims of letters patent No. 515,426, granted February 27, 1894, to French and Nalence, for improvements in piano attachments.</p>

This was a case in equity by William H. Haworth against Lazar Stark and others, praying an injunction and accounting for alleged infringement of a patent. Pinal hearing on pleadings and proofs.

<p>This was a suit in equity by Wyckoff, Seamans & Benedict against the Wagner Typewriter Company to restrain the alleged infringement of letters patent No. 466,947, issued to Horace K. Lamb January 12, 1892, for a typewriting machine. The cause was heard on demurrer to the hill for want of equity.</p>

This was a suit in equity by Arthur H. Keller against Jacob Strauss and Carl Strauss for alleged infringement of a patent. The cause was heard on exceptions to the answer for insufficiency, for that defendants have not answered interrogatories numbered 1 and 2.

This is a suit in equity by Charles Schwartz against Moses Housman for infringement of two patents relating to the forming and embossing of cards, etc. Final hearing upon pleadings and proofs.

This was a libel in rein by William J. Minford and another against the bark Rita, her cargo and freight, to recover compensation for salvage services.

<p>This was a libel in rem by Horatio G-. Craig & Co. against the steam-tug Victoria, to recover damages resulting from alleged negligent towage.</p>

<p>This was a libel in personam by William Linklater against Benjamin H. Howell and others to recover freight under a charter party.</p>

<p>Tills was a libel in personam by the Trinidad Shipping & Trading Company against Frame, Alston & Co. and the Marine Insurance Company to enforce a claim for general average.</p>

This was a libel in rem by the Insurance Company of North America against the steamship Prussia to recover for loss occasioned by deterioration of refrigerated meat while in course of transportation by said vessel.

<p>Carriage by Sha — Bastaba Cargo — Unskawoktitiness.</p> <p>A vessel, chartered, in part, for the transportation of bananas, and employed substantially for that purpose between New York and Port Limón, left the former port on her eleventh trip in such condition that he,r boilers failed, and she was compelled to put into an intermediate port for repair. This delayed her arrival at Port Limón, and bananas, cut according to a practice theretofore observed in the use of this vessel, in anticipation of her due arrival, were thereby too much ripened for safe shipment and delivery in New York, and were greatly damaged upon arrival at such port. The failure of the boilers resulted from the negligence of the owners, and the deterioration of the bananas was the natural consequence of such negligence.</p>

This was a petition by Mary A. Eldridge and others against the proceeds of the steamship Antonio Zambrana to obtain payment of wharfage.

<p>This was a libel in behalf of tbe United States against tbe Maria Dolores to procure her condemnation as prize of war.</p>

This was a libel in rem by John Gibson against the steam tug Kob-ert H. Eathbun to recover damages resulting from a collision.

<p>These were libels in rem brought, respectively, by the Philadelphia <& Reading Railway Company and the Thames Towboat Company against the steam tug Transfer No. 8.</p>

Tins was a libel in rem by Felix Clancy and Ann Brophy against tlie steam tug George L. Garlick and the barge Stuyvesant to recover damages resulting from a collision.

This was a libel in rem by the New York Central & Hudson River Railroad Company against the steamship Etruria to recover damages resulting from a collision between the steamship and a barge belonging to libelant.

This was a libel in rem by James I. Collins against the steamship New York to recover for damages occasioned to a canal boat and cargo by becoming impaled on the steamship’s propeller in her slip.

<p>Collision — Agiíkkmknt by Signals — Contrary Navigation.</p> <p>In crossing the North river upon converging courses, the tug V., with a tow, and the ferry boat Plainfield agreed hy signals of two whistles that the V. should cross ahead of the P.; the V. maneuvered accordingly, but the P. came on without materially slackening speed, and collision, followed. Held, that the P. was alone to blame for not navigating in accordance with the signals, and not giving the V. reasonable space to pass ahead.</p>

<p>Removal of Causes — Prosecutions before Justice of Peace — Acts Done under Federal Revenue Laws.</p> <p>A prosecution brought before a justice of the peace for a nonindictable misdemeanor is removable to a federal court, under Rev. St. § (¡1:5, when the act charged was done by defendant under authority of a. federal revenue officer, acting under color of his office. Virginia v. Paul, lit Sup. Gt„ 536, 148 U. S. 107, distinguished.</p>

<p>JURISDICTION OF IfUDBRAI. COURTS — ACTIONS 1IY RECEIVERS OF NATION AT. BANKS.</p> <p>Circuit courts have jurisdiction of actions by receivers of national bants to collect assessments made by the comptroller, without regard to the amount involved.</p>

<p>1. Jurisdiction of Federal Courts — Diverse Citizenship — Actions by. Assignees.</p> <p>A nonresident assignee of a share in the estate of an intestate, who sues the administrators and their sureties to enforce obligations incurred by an alleged failure to properly discharge their duties, is not an assignee of a chose in action, in the meaning of the judiciary act of March 3, 1887, so as to be precluded from maintaining the suit in a federal court by the fact that his assignor could not have maintained it therein.</p> <p>2. Same — Decree of State Court Settling- Administrator’s Accounts.</p> <p>A federal court may, in a case of diverse citizenship, entertain a suit to surcharge and correct a settlement of accounts by administrators which has been confirmed by decree of the proper state court.</p>

<p>Jurisdiction — Federal and State Courts — Proceedings for Dissolution of Corporation.</p> <p>Proceedings brought by a public officer under a state statute for the winding up of a corporation, and the appointment of a receiver therein, do not deprive the circuit court of the United States of jurisdiction to proceed with a suit in equity brought by a stockholder, who is a resident of another state, against the corporation, for the adjustment of mutual claims, and to enjoin any disposition of his stock held by the corporation in pledge.</p>

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

<p>1, Equity Pleading — Demurrer to Answer.</p> <p>There is no such thing as a demurrer to an answer in equity. The only way by which the sufficiency of the answer on its merits as a defense can he tested is by setting the case for hearing on the bill and answer.</p> <p>3, Same — Exceptions to Answer.</p> <p>The office of an exception to an answer is to raise the question whether the averments and denials thereof are sufficiently responsive to the allegations of the bill; and it cannot be-treated as raising the question of the sufficiency of the answer as a defense on the merits.</p> <p>á. Taxation — Intangible Property of Nonresidents.</p> <p>It is within the power of a state to tax money and credits of a nonresident when the money is invested, the debt contracted, and the investment controlled by a resident agent of the owner, having the evidences of the debt in his possession.</p> <p>í. Same.</p> <p>Under Rev. St. Ohio, §§ 2731. 2734, 2735, moneys and credits owned by a nonresident of the state, and wnieh are held, invested, and controlled for him by an agent residing in the state, are made subject to taxation. 79 Fed. 138, reversed.</p>

<p>1. Preliminary Injunction — When Granted.</p> <p>A preliminary injunction maintaining the status quo may properly Issue whenever the questions of law or fact to he ultimately determined in a suit are grave and difficult, and Injury to the moving party will he immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted.</p> <p>2. Enjoining Execution op Tax Deed-Probability op Success on Merits —Temporary Injunction.</p> <p>A first mortgagee brought an action to enjoin the assignee of a tax certificate from taking a deed to the mortgaged premises, alleging that the taxes, a part of which were illegal, were levied after his mortgage was made; that until after the hearing in a suit to foreclose his mortgage, to which the second mortgagee was a party, the certificate was held by the second mortgagee, and then assigned. Held, that, it not being clear that complainant may not succeed upon the merits, a temporary injunction should issue pending the final hearing.</p>

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

<p>1. Authority op Trustees — -Institution op Suits.</p> <p>Where property is vested in three trustees, with power to bring suits, etc., one of them has no authority to institute a suit without the knowledge and consent of his co-trustees.</p> <p>2. Equity — Dkcree por Costs.</p> <p>"Where persons are made parties complainant to a bill without their knowledge or consent, and a decree is entered against them for costs, such decree is a nullity as to them, and they may have their names stricken from the record on filing a petition therefor in the cause.</p> <p>Same — Authority op Attorney.</p> <p>An attorney employed to bring a suit, without specific instructions as to what court to commence it in, may, in the ezercise of a sound discretion, resort either to a state or a federal court.</p>

<p>1. Barks and Banking — Suits by Depositors.</p> <p>A depositor in a bank does not sustain to it a relation like that of a stockholder in a corporation, and therefore is not subject to the requirement of the ninety-fourth equity rule, requiring stockholders, before they can maintain suits, to assert rights properly enforceable by the corporation itself, to show that they have sought in vain to procure action by the corporation.</p> <p>2. Equity Pleading — Joinder of Causes of Action.</p> <p>A bill by depositors against the directors of a bank for negligence in the discharge of -their duties resulting in injury to plaintiffs and other depositors is not rendered bad for misjoinder of causes of action by a further allegation that the president of the bank, by fraudulent representations, induced plaintiff to deposit money therein.</p>

<p>Demurrer to Defendant’s Plea, of the Maryland Statute of Limitations.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>This was a suit, in the nature of a creditors’ bill, brought by the National Foundry & Pipe Works, Limited, against the Oconto City Water-Supply Company, S. D. Andrews, and others. A decree in favor of complainants and intervening creditors was reversed by this court (22 C. C. A. 110, 76 Fed. 166), and, on remand, a decree was rendered against George W. Sturtevant, Jr., — against whom, on default of answer, a decree pro confesso had been taken, — and he prosecutes this appeal.</p>

<p>This was a bearing in the matter of the receivership of the Central Vermont Railroad, arising on objections by the American Loan & Trust Company, mortgagee, to the allowance and payment, as preferred claims, of amounts due for operating supplies.</p>

<p>1. Foreclosure op Railroad Mortgage — Parties.</p> <p>Where a mortgage to secure railroad bonds provides that it may be foreclosed, upon default of payment, at the request of a majority of the bondholders, a bill filed by the trustee, alleging such default and request, is not subject to demurrer because bondholders are not joined as orators.</p> <p>2. Same — Creditors’ Suit — Receivers as Parties.</p> <p>Where receivers have all the property in their hands, under order of the court, for whomsoever it may be found to belong, and all proceedings in the cause are for the purpose of ascertaining the rights of all claimants, and how the property should be disposed of, it is not necessary, to make the receivers technical parties defendant to each bill filed, as the proceedings are in their nature in rem, and the receivers are in effect parties to all the proceedings.</p> <p>8. Same — Second Mortgage — Parties.</p> <p>Where a second mortgage covered leased lines, without touching the rights of lessors, and the foreclosure is a part of a suit in which all the property is in the hands of receivers, neither the mortgagor, the first mortgagee, nor any lessor is, in strictness, a necessary party.</p> <p>4. Same — Description op Property.</p> <p>Where the description of the property in the bill is the same as in the mortgage, the necessity for evidence of the situation of the property, in order to the application of the description to it, is not ground of demurrer.</p> <p>5. Creditors’ Suit — Judgment Creditor — Seizure op Property.</p> <p>The receivership will not be withdrawn from unincumbered property of one of the consolidated corporations to enable a judgment creditor, who joined in the original petition for its distribution among creditors on the ground of insolvency, to seize it because of a supposed moral equity, and thus defeat the object of the petition.</p> <p>6. First and Second Mortgages — Conflicting Interests — Foreclosure by Same Trustee.</p> <p>In a proceeding to foreclose a first and a second mortgage, in which the same corporation is trustee in both, wheñ a question arises as to what property is covered by each, as against the other, representative bondholders under each mortgage should be permitted to become parties, and properly litigate the question.</p>

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

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

<p>Railroads — Receivership—Operating Expenses.</p> <p>Cars furnished to a railroad by other roads in the course of business arc materials furnished for the operation of the road, and claims for their loss when destroyed and not returned are properly payable by receivers under an order for the payment of claims for expenses of operation.</p>

This was an action by the Greenbrier Distillery Company against Ben Johnson, collector of internal revenue for the Fifth district of Kentucky, and the Fidelity & Deposit Company of Maryland, the surety on Johnson’s official bond, to recover the amount of internal revenue taxes exacted upon certain spirits destroyed in a railroad collision.

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

This was an action at law by Frederick W. Reese against Ripley A. Clisby, John R. Clisby, and Frank W. Clisby for alleged infringement of a patent for improvements in broom-.corn cleaners. The cause was tried to the court without a jury, and judgment was given for plaintiff, to review which the defendants have sued out this writ of error.

<p>1. Shippins — Abandonment op Vessel by Crew — Evidence.</p> <p>Where the master and crow have ahamloned their vessel under circumstances raising a grave suspicion that they dismasted and scuttled her, hut. on a libel by the cargo owners and their insurers, the master and claimants assert that the injury was caused by collision, the failure of the latter to examine several members of their crew, who were disinterested, or to libel the vessel with which they pretend to have collided (the collision being denied), or examine any members o£ her crew in regard to the alleged collision, is prejudicial to their case.</p> <p>3. Same — Freight—Abandonment.</p> <p>When a vessel and cargo are abandoned at sea by the master and crew, without intention to retake them, the shipowner can maintain no claim to the freight.</p> <p>S. Same —Bad Seamanship.</p> <p>Where a master and crew abandoned their vessel, claiming that she was sinking, bur she was afterwards found riding safely and not leaking seriously, and the circumstances were such as to raise a grave suspicion that she had been purposely dismasted, and an attempt made to scuttle her, held that, because of bad seamanship and negligence, the ship was liable for the amounts paid for salvage, and as damages to the cargo, by the insurers.</p>

<p>This ivas a suit in equity brought in the circuit court of Prince William county, Va., by William R. Snow, a citizen of Virginia, as trustee of Marcia 0. Snow, against George Cowie, Edson R. Smith, and Harriet 0. Snow. Defendant Cowie was a citizen of the District of Columbia, and the other two defendants were citizens of Minnesota.</p> <p>The following facts, among others, were alleged in the bill: Prior to April 1, 1809, the complainant, William K. Suow, together with Tilomas M. Smith and John O. Wilson, owned jointly a tract of land, containing about 400 acres, in Prince William county, Va.: each being the owner of an undivided one-third thereof. On the date mentioned, Smith and Wilson conveyed their interests to George D. Snow, who, in consideration thereof, paid 82,000, and gave Ms six promissory notes. These notes were for something over ip,000 each; three being executed to each grantor, payable, respectively, one. two. and three years after date. To secure their payment, the maker and his wife, Harriot 0. Snow, executed and delivered a deed of trust 1o the defendant Cowie, covering an undivided two-thirds of the land. The three notes to Smith, and also the first of the notes to Wilson, were paid by Snow, who died in 1874, leaving a will in which the defendant Edson R. Smith was appointed sole executor. The widow — being the defendant Harriet 0. Snow’-was his sole legatee. In 1875 the executor and widow executed and delivered a deed of the said lands to the complainant, in trust for the complainant’s wife, the said Marcia C. Snow; the complainant therein assuming the payment of the two outstanding notes to Wilson. The bill then alleges that these two notes to Wilson “have been in the possession and custody of the said defendant Harriet 0. Snow from about the 25!h clay of June, 1875, until now, and the said Harriet C. Snow claims to hold the said promissory notes by purchase from the said John C. Wilson.” Wilson died before institution of the suit, having executed an alleged release, apparently on the assumption that his notes had been paid. The bill further alleged that Harriet C. Snow claimed the right, under the deed of trust to defendant Cowie, to have an undivided two-thirds of the land sold to pay the said noios; that the said trustee, Cowie, acting under authority from her, had advertised an undivided two-thirds of the land for sale on September 22, 1888; that, by reason of the payment of the three notes to Thomas M. Smith, only an undivided one-third of the land was liable to be sold under the trust. The prayer of the bill was: that defendant Cowie be enjoined from making the sale until such time as the land could be partitioned, and the rights of the several parties therein set apart to them. The bill concluded with a prayer for general relief. On October 8, 1883, the defendants E¡. R. Smith and Harriet C. Snow filed a petition and bond for the removal of the cause to the circuit court of the United States for the Eastern flistrict of Virginia; alleging that there was a controversy wholly between citizens of different states, to wit, a controversy between the petitioners and the complainant, as trustee of Marcia 0. Snow. The petition was granted, and the cause, being accordingly removed, is now heard upon complainant’s motion to remand the same to the state court.</p>

<p>This was a bill by the Southern Indiana Express Company against the United States Express Company and others. Heard on demurrer to bill.</p>

We adopt the following statement of the learned circuit judge with reference to the pleadings and character of this suit: “This case was submitted upon bill and answer. It involves the construction of the act of congress * ° * approved March 1, 1893 (27 Stat. 507). The bill alleges the appointment and qualification of the commissioners provided for by that act, and the entry upon its duties by the commission.

<p>Breach of Contract — Right to Recover Damages — Performance Prevented by Appointment of Receiver.</p> <p>Damages are not recoverable against a corporation for its failure to perform a contract for the sale and delivery of merchandise, where performance was prevented solely by the action of a court in appointing a receiver for the corporation, and enjoining all others from intcinering with its business or property. In such case the breach of contract is damnum absque injuria.</p>

<p>1. Ejectment — Improvements and Taxes.</p> <p>xV receiver’s receipt for fees paid on the entry of supposed public land as a homestead is not a sufficient “written instrument” on which to claim a right to recover improvements against a successful plaintiff in ejectment, under Rev. St. Wis. § 3096.</p> <p>2. Same — Good Faith of Defendant.</p> <p>Lands granted in aid of a railroad were afterwards decided by the secretary of the interior to be still open for entry. A suit in ejectment concerning' one parcel was decided by the circuit court in harmony with the secretary’s decision, but was appealed to the supreme court. Keltic that one who entered a similar parcel as a homestead, in full knowledge of the facts, while the appeal was pending, was not a good-faith holder, and as such entitled to pay for his improvements, under Rev. St. Wis. § 3096.</p>

<p>This was an action of ejectment brought by Alice H. Rigney, by Charles Lyon, her curator, against Elisha Plaster. Plaintiff having recovered a judgment, the cause is now heard on defendant’s motion for a new trial.</p>

Motion to strike out plea. The action was brought under Rev. St. § 4905, as amended, to recover §20,000 as penalties for infringement of copyright.

<p>1. Tbade-Makks — Unfair Comphtittox- Geoghai’htcal Names.</p> <p>The false use of a geographical name will not he allowed by the federal courts, when it is so used to promote unfair competition and to induce the sale of spurious goods.</p> <p>2. Same — Imitative Labels — Pito of of Sales.</p> <p>The federal courts do not require specific proof of purchases by individuals actually deceived, when the labels themselves show an attempt at deception which is well calculated to deceive.</p>

<p>Infringement of Trade Mark and Name — Ceasing Sale After Suit Brought — Injunction.</p> <p>When the article sold is inferior and spurious, and the packages sufficiently resemble complainant’s to make it apparent that the design is to deceive the consufning public, injunction will be granted, although defendant is a dealer only, who purchased from the originator of the fraud, and, since action brought, has voluntarily ceased to deal in the goods.</p>

<p>This was a suit in equity by the K K. Fairbank Company against the Liickel, King & Cake Soap Company for alleged infringement of a trade-mark.</p>

This was a suit in equity by James A. Flomerfelt against Morris J. Newwitter and another for alleged infringement of a patent for a design for cuff buttons.

<p>Final hearing, upon pleadings and proofs, of bill in equity alleging infringement of three patents issued to S. 0. Cary, and assigned to complainant. •</p>

<p>Patents — Invention—Harrows and Cultivators.</p> <p>The La Dow patent, No. 301,729, for improvements in disk-harrows, consisting mainly in the interposition of buffer-heads or equivalent mechanism between the inner ends of the disk-gangs for receiving their side thrust without coupling the axles together, held to involve patentable invention.</p>

<p>DEMURRAGE — DELAY IN DISCHARGING.</p> <p>If the ship is prevented, after getting into her dock, from securing a fit place for discharging by any cause over which she has no control, then any delay occasioned by the crowded condition of the dock Is chargeable to the consignee. But, when a place for unloading is furnished by the consignee within the 24 hours allowed after receiving notice of arrival, delay occurring, not by any insufficiency of carts to receive the cargo, but by reason of the vessel delivering from but one hatch, when she might have used two, is chargeable to her, and she can recover no demurrage therefor.</p>

<p>1. Removal of Causes — Separable CoNtroversy.</p> <p>A cause is not removable unless all- the parties on one side are citizens oí different states from those on the other side, or unless there is a separable controversy wholly between some of the parties who are citizens of different states, in which the question at issue can be fully determined between them.</p> <p>3. Same — Suit for Injunction.</p> <p>A suit by taxpayers of a county against the county court and a citizen of another state!, to restrain the court from erecting a new court house, and the other defendant from executing a contract to build it, entered into with the county court, is not removable by the nonresident defendant on the ground that there is a separable controversy, as any injunction against either defendant necessarily operates upon both.</p>

<p>Removal or Causes — Separable Controversy.</p> <p>The provision in Rev. St. § 639, allowing the removal of a part only of a suit, was repealed by the act of March 3, 1875, § 2. which provides for the removal of the whole suit when there is a separable controversy, the parties to which have a right of removal.</p>

<p>1 Power to Sell Land — When Coupled with as Interest — Agreement for Commission.</p> <p>Tiie fact that a power to soli land authorizes the agent to retain a percentage of the purchase money in payment for his services does not make it a power coupled with an interest, as the interest of the agent is only in the proceeds of the land arising from the execution of the power.</p> <p>2. Same — Construction of Instrument.</p> <p>An instrument by which the owner of land authorizes another to sell the same at not less than a stated price, and to retain a percentage of the proceeds in payment for his services, and which further provides that any security taken for deferred payments shall be payable to the owner, who shall execule proper conveyances on receipt of full payment, does not empower the agent to make a contract of sale, without the approval of the owner, which the latter can he compelled to execute.</p> <p>8. Principal and Agent — Fraudulent Contract by Agent — Specific Performance.</p> <p>A court of equity will uot enforce against an owner of land a contract of sale made by his agent under authority given six years before, where the land has greatly appreciated in value meantime, and the agent, without advising his principal of such fact, made the sale for a price grossly inadequate at the time, though within the terms of his original authority.</p>

<p>1. Pleading Judgment.</p> <p>When what is decided in one ca.se becomes material to be ascertained in another, it inay be set forth and shown by allegation and proofs outside the record, which are not inconsistent with or contrary to the record.</p> <p>2. Gonclusiveness of Judgment.</p> <p>In an action in the supreme court of New York between the beneficiaries under a will and the executors, the next of kin, who claimed that releases of their interest in the estate were procured by fraud on the part of the executor, were made defendants. The judgment of the special term for plaintiffs against the executors recited that the next of kin “recover their costs to be taxed, together with the sum of §900 as an extra allowance,” without any statement of facts found as required by Code Civ. Proc. § 1022, which provides that, where such statement is omitted, the general term, in an appeal upon a case containing exceptions, shall review all questions of fact. The appeal to the general term was not upon a case containing exceptions, and the court imputed that the issue of fraud in obtaining the release had been determined by the trial term, and held that there was not sufficient preponderance of evidence to render such determination erroneous. Such decision was affirmed in the court of appeals. Held, that, unless the issue of fraud in obtaining the releases was in fact tried and determined, such adjudication was not conclusive upon-the next of kin, in an action by them against the executors to recover the portion of the estate so released.</p> <p>8. Due Process of Law.</p> <p>In an action between beneficiaries under a will and the executors, the next of kin, who claimed an interest, on the ground that releases of tlieir interest were obtained by fraud, were made defendants. The special term decided the case upon grounds not involving this issue of fraud, and without passing upon that point. The general term decided the ease, on appeal, without any finding as to that point, and the court of appeals affirmed the decision upon matters of law only. HeM, that the rights of the next of kin had been decided without due process of law.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>This is an appeal by CL IT. Randle, a resident citizen of McLennan county, Tex.; George H. McFadden, a resident citizen of the city of Philadelphia, in the state of Pennsylvania; John H. McFadden, a resident citizen of Liverpool, England; and J. Frank McFadden, of said city of Philadelphia and the stale of Pennsylvania. — from a final decree of the circuit court of the United States for the Eastern district of Texas, at Galveston, wherein the said appellants were interveners, against Alfred Abeel, receiver of the Waco & Northwestern Railroad. In appellants’ petition In intervention they allege and set up that on August 11, 1894, the railroad commission of Texas, under and by virtue of the laws of the state of Texas, adopted, fixed, and established a schedule of rates for local and joint application on cotton iu bales from and to all points in the state of Texas, known and called “Commodity Tariff No. 1,” substantially as follows:</p> <p>“To apply between stations east, north, and wesl of and including Houston: “Distance. Rates.</p> <p>* * * ^ *</p> <p>Over 125 miles. 59’’</p> <p>“Fourth. The rates from points east, north, and west of Houston to Galveston « * * shall be made by adding 6 cents per 190 pounds to the rates from the same points to Houston.”</p> <p>—Whereby the rate so fixed was 65 cents per 100 pounds from any and all points on said Waco & Northwestern Division and said Texas -Central Railroad to Galveston, Tex.; and on said day, by said tariff, said commission made and established among others, the following rules and regulations: “Fifth. For the purpose of concentration, cotton may be shipped at full tariff rates to compress stations, distant from all points on the Gulf const 300 miles or more of railroad mileage, with the following adjustment of freight charges before and after such concenl ration, provided that there shall be no compress in operation at original shipping- point, or at a station intermediate between such point and the point at which it is desired to concentrate: CD Each railroad company shall refund only its own charges for the service of concentration. (2) The entire charge for concentration shall be refunded when the point of concentration is directly intermediate between shipping point and final destination, as reached by the line on which such cotton originates, and the rates from original shipping points and concentrating point to such destination are the same,” — which said schedule of rates, and which said rules and regulations, went into effect on September 1, 1894, and have continuously since then remained in effect and force. That after-wards, on September 18, 1894, upon the joint application of said Alfred Abeel, receiver, by his general freight agent, J. E. W. Fields, and the Texas Central Railroad Company, by its chief clerk in the traffic department, W. F. McMillin, the said commodity tariff and the said rules and regulations were amended substantially as follows: “(1) On cotton in bales between Oliver station and Alexander to.Waco, the rate shall be 40 cents per 100 pounds. (2) Said roads [Waco & Northwestern Division and Texas Central Railroad] are exempted from the operation of section 1, fifth paragraph, of rules and regulations governing the concentration of cotton; and the Waco & Northwestern is authorized to refund its own and the charges of the Texas Central Railroad, under the terms and conditions prescribed in said sections 2 and 3 of paragraph 5 of rules and' regulations of commodity tariff No. 1. On all through business originating north of Oliver station, the mileage rates prescribed in commodity tariff No. 1 shall apply,” — which said amendment went into effect on September 21, 1894, and has continuously since then been in effect and operation.</p> <p>The interveners, as shippers of cotton, claim a right under these regulations to have the charges for concentration refunded to them, and by their petition seek to recover from the receiver the sum $7,363.85, being the balance of a much larger sum, part of .which had in fact been paid. The cause was referred to a master, who, after hearing the evidence, made an elaborate report, recommending the disallowance of the entire sum as to the intervener, G. H. Randle, but finding that the firm of George H. McFadden & Bro. were entitled to recover the sum of $48.30, with interest. Exceptions to the report were overruled by the court, and a, decree entered pursuant to the master’s recommendations. From this decree the present appeal was taken.</p>

<p>1. Water Companies — Contract with Municipal Corporation — Regulation of Rates.</p> <p>A provision in a contract between a water company and a municipal corporation that the mayor and common council “shall have, and do reserve, the right to regulate the water rates charged by said parties of the second part, or their assigns,” except that they shall not reduce the same below a stated price, refers, not to a right of regulation given the city by the contract itself, but to a power which the city already had, or which might be conferred by legislative action; and, if the city was authorized to make the stipulation in respect to minimum rates, neither It nor tlie legislature could thereafter lawfully reduce rates below the minimum.</p> <p>3. Municipal Corporations — Bxtknt op Powers.</p> <p>Municipal corporations possess the following powers, and no others: (J) Those granted in express words; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved against the corporation.</p> <p>8.Same — Contracts as to Water Works.</p> <p>Charter authority “to provide for supplying the city with water” gives the city power to contract with a water company in respect to rates to be charged to consumers.</p> <p>4. Same.</p> <p>Even if the power of a city to regulate water rates is legislative or governmental, and not a special legislative grant for private purposes, the city may still, by contract, abridge such power, under an implied as well as an express legislative grant.</p> <p>5. Same — Reasonableness of Contract.</p> <p>In determining the question whether a contract between a city and a water-works company was reasonable, the contract should be construed, not in the light of subsequent developments and newly arising conditions, but with reference to the conditions surrounding the parties at the date of the contract.</p> <p>6. Same — Lease or Water Works.</p> <p>A contract by the city of Los Angeles in 1808 to lease its water works for a period of 30 years, in consideration of a rental of §1,500 annually, and the cancellation of certain large claims of the lessees against the city, —the lessees to furnish water for all public and municipal uses free of charge, and to extend pipes and mains to answer all the needs of the inhabitants, — held, a reasonable contract, binding upon the municipality.</p> <p>7. Same — Power to Regulate Water Rates.</p> <p>The California statute of May 3, 1832 (St. Cal. 1852, p. 171), providing for the incorporation of water companies, and which contains a provision preventing any municipality from depriving itself, by contract with such corporation, of the power to regulate water rates, does not affect the power of a municipality to limit its rights in this respect by a contract granting a water-works franchise to individuals, as distinguished from a corporation organized under the act; nor is its power to so hind itself affected by the fact that such individuals intend to organize a corporation, and assign their franchise to it.</p> <p>8. Same — Legislative Ratification of Contract.</p> <p>Whatever a legislature may originally authorize a municipal corporation to do, it may, if the state constitution interposes no obstacle, subsequently ratify; and such ratification is equivalent to an original grant of power, operative, by relation, as of the date of the thing ratified.</p> <p>9. Same — Declarations of Munich*al Officers.</p> <p>A municipal corporation is bound by the declarations of its officers, where such declarations accompany, and are explanatory of, an act done by the officer in the scope of his authority.</p> <p>10. Same — Estoppel.</p> <p>Where, by contract between a city and a water-works company, the right of the company to take water from a certain river is limited so'as not to exceed a specified amount without the previous consent of the city, a subsequent consent of the city to the taking of a larger quantity cannot he withdrawn during the life of the contract, after large expenditures have been made by the company in reliance upon such consent.</p> <p>11. Same — Ordinance Reducing Water Rates — Acquiescence of Company.</p> <p>Where a city, by ordinances passed each year, assumes to regulate the rates to he charged by a water company, acquiescence by the company in the reduction made by one such ordinance is not an acquiescence in the ordinance of the succeeding year.</p> <p>IS. Same — Injunction—Equity Jurisdiction.</p> <p>An injunction against the enforcement of an ordinance reducing water rates will not be refused on the theory that the ordinance, if void at all, is void upon its face, and therefore throws no cloud upon complainant’s rights, when such invalidity only appears in connection with a certain contract, and with evidence aliunde showing what water rates were charged at the date of such contract.</p> <p>13. Same — Injunction—Equity Jurisdiction.</p> <p>An ordinance wrongfully reducing water rates, where the constitution and laws of the state apparently denounce severe pains and penalties upon collections of higher rates than those prescribed by the ordinance, so affects the water company’s property rights, and hinders it in the collection of its lawful compensation, that equity will afford protection against such an ordinance, even though the city is taking no active steps to enforce it.</p> <p>14. Same — Effect of Appeal.</p> <p>Where a city annually passes ordinances regulating water rates for each year, an injunction against such an ordinance, which is illegal, will not be denied merely because the particular ordinance in question would necessarily expire before an appeal from a decree awarding the injunction could be disposed of.</p>

<p>1. COUNTIES — ORGANIZATION—POWERS OF TEMPORARY BOARD OF COMMISSIONERS.</p> <p>Under Gen. St. Kan. 1889, par. 1577 et seq., providing for the organization of new counties, and authorizing the governor to appoint temporary officers, on whose qualification “the county shall be deemed to be duly organized,” a temporary board of commissioners so appointed has power to audit claims for legitimate county expenses, and to issue warrants therefor.</p> <p>2. Judgment — Conformity to Issues.</p> <p>A general judgment for defendant, which does not clearly show that it rests solely on a. plea that the action was prematurely brought, cannot he sustained by the sufficiency of that plea, and of the proof under it, where the plea in abatement is joined with pleas in bar in the same action.</p> <p>3. Appeal and Error — Review—Question not Presented to Trtal Court.</p> <p>In an action on county warrants, a plea in abatement on the ground that the warrants wore not presented to the county treasurer for payment before suit brought, which was not presented to the trial court for decision, will not be considered by an appellate court, where It does not appear that the failure to present the warrants was prejudicial to the county.</p> <p>4. County Warrants — Validity—Evidence of Overissue.</p> <p>A contention that county warrants in suit are void because issued after the limit in amount authorized by statute had been passed is not, supported by proof that the warrants in suit were issued in the order of the numbers they bear, mid that warrants bearing lower numbers than any in suit were issued to an aggregate amount, which still loft a margin within which others might legally be issued.</p> <p>Trial — Direction of Verdict — Province of Court.</p> <p>It is only when the evidence upon an issue is free from conflict, or so clear and convincing that all reasonable men who exercise an honest judgment upon it are compelled to reach the same conclusion, that the court is justified in withdrawing the question from the jury.</p> <p>5. Counties — Temporary Commissioners — Employment of Counsel,</p> <p>A temporary hoard of commissioners, appointed under the laws of Kansas on the organization of a new county, has power to employ attorneys to protect the interests of the county, and advise its officers, until the election of a county attorney.</p> <p>7. County Warrants — Presumption of Validity — Evidence to Impeach.</p> <p>Warrants issued by a hoard of county commissioners having authority to allow claims against the county, in payment of claims regularly allowed, are prima facie evidence of the just indebtedness of the county; and where a warrant in suit purported to be issued in payment for the services of an attorney previously employed by the board, and was in itself reasonable in amount, the fact that other warrants, aggregating a large amount, were also issued on the same day to the same person, does not authorize the court to withdraw from the jury the question of the validity of the warrant in question, and direct a verdict on the assumption of its invalidity.</p> <p>8. Same — Support of Poor — Power of Commissioners.</p> <p>Under the statutes of Kansas requiring counties to support the poor, and the hoards of commissioners to levy taxes for the purpose (Gen. St. 1889, pars. 4030, 4001), neither the fact that no levy for the purpose had been made in a county newly organized, nor that the immediate care of poor persons devolved on city or township officers, will invalidate warrants issued by the board in payment of indebtedness incurred in supporting the poor.</p> <p>9. Samp. — Defenses—Irregularity in Issuance.</p> <p>Gen. St. Kan. 1889, pars. 1659, 1661, make it unlawful for a county board to allow claims (with certain exceptions) except at a regular meeting, and that violation of the requirement by commissioners shall be a misdemeanor, punishable by fine. Held-, that where warrants, regular on their face, were issued in payment of claims, the county could not defend against them in the hands of a purchaser on the ground merely that they were irregularly issued, in that the claims were allowed at a special meeting of the board.</p> <p>10. Municipal Corporations — Evidences op Debt — Estoppel to Question Regularity.</p> <p>A municipal corporation which, by the regularity of the execution of evidences of its debts, which is apparent upon their face, induces persons to buy them, is thereby estopped from denying their validity or effect on the ground that, in their execution or in the preliminary proceedings which warranted their execution, its officers failed to comply with some law or rule of action relative to the mere time dr manner of their procedure, with which they might have complied, but which they negligently disregarded.</p> <p>11. Federal Courts — Following State Decisions — Construction op Statutes.</p> <p>Decisions of state courts as to their statutes, which affect the validity of contracts between citizens of different states which were made, or under which rights were acquired, before there was a judicial construction of the statute which seemed to authorize the contracts, are not obligatory upon the courts of the United States.</p> <p>IS. Same — Eppect op Invalidity op Statute.</p> <p>The question as to what effect the invalidity of a legislative act creating a township has upon the validity of warrants issued for indebtedness incurred by such township, in the hands of purchasers who are citizens of another state, is one upon which a federal court is not concluded by a state decision, rendered after the warrants were purchased.</p> <p>18. Municipal Corporations — Estoppel to Deny Corporate Existence.</p> <p>Where, by a legislative act, an unorganized county was attached to another county, and by existing statutes it thereby became a township of the latter county, and under such statutes was organized and assumed to act as such, without question by the state or its inhabitants until it was organized as a county, warrants issued after the county was organized, based on obligations incurred by the township, cannot be avoided in the hands of third persons to whom they were sold, on the ground that the act by which the unorganized county was attached to the older county was unconstitutional.</p> <p>14. Same — De Facto Corporations.</p> <p>In such case the township was not organized under color of the unconstitutional act, but by virtue of the general statutes, and its acts were those of a de facto township.</p> <p>15. Same — Acting under Unconstitutional Statute.</p> <p>The acts of a de facto corporation under an unconstitutional law, before its invalidity is challenged in or declared by the judicial department of the government, cannot be avoided as against the interests of the public or of third parties who have acted or invested in good faith in reliance upon their validity by any ex post facto declaration or decision that the law under which it acted was void.</p>

<p>This was a hearing on a petition to vacate a judgment entered herein in 1886 against the petitioners as heirs of Sela White and Andrew Claycomb.</p>

This was an action at law by Peter Matz and others against the Chicago & Alton Railroad Company to recover damages for the killing of plain tils’ child at a street crossing. The case was heard on motions to compel plaintiffs to elect on which cause of action they will rely, and to strike out certain parts of the petition.

<p>The petition is filed in this case, as a branch of it, the property of the defendant company (the Atlantic, Mississippi & Ohio Railroad Company) being in the custody of the court, in charge of receivers who were in charge at the time of the accident which gave rise to the proceeding.</p> <p>The petition claims damages to the amount of $10,000, for the killing of plaintiff’s intestate, J. M. Yager, about the 1st day of July, 1878, by the falling- of parts of a bridge of this railroad while in process of erection across a part of the Appomattox river, at Petersburg, Va., on which intestate was at the time at work, as employ® of the receivers. The intestate was carried down by the bridge, and fatally crushed. The falling of the bridge is supposed to have been caused by its having got a few inches out of plumb while the builders were adjusting it to its bearings, and putting in end braces, just after having removed the false work or scaffolding which had supported the upper chords. There are two petitions of the plaintiff in the ease. The original petition charges negligence upon the receivers in having failed to supply the requisite timber for building the bridge; thereby compelling a resort for timber to the false work supporting the upper chords, whereby the structure was rendered liable to fall, and for negligence in having put in supervision of the work a person or persons ignorant of the business, and negligent of the duties incident to it, “who, instead of suspending operations on finding that proper material was exhausted, not only used what Was unsuitable for the purpose, but even went so far as to resort to the false work or scaffolding, the removal of which rendered the bridge dangerously insecure,” the more so as the structure had not been secured in its proper position by the proper bolts, braces, and fastenings. The original petition was filed May 3, 1879. The answer of the receivers to it was filed January 27, 1S80. Depositions were taken by plaintiff in April, 1880, by defendants in January, 1881, and were closed by plaintiff in May, 1881. Plaintiff’s counsel asked leave to file an amended petition on the 16th December, 1881; and this motion was on that day heard, at which time also the case was heard in chief, with a saving to the defendants of the right, if the filing of the amended petition should be allowed, to answer that petition, and to take testimony responsive to the pleadings in their amended form if their counsel should so desire. The amended petition, repeating the charges of the original one, charges, further, that W. S. Hanna was the person in charge of the said work by whose order the intestate was on the bridge when it fell and killed him; that Hanna was manager of such work; that, in attempting to swing this bridge to its bearings, the sides fell some inches out of perpendicular, causing a tendency to careen and fall, which fact was perfectly obvious to, and was observed by, said Hanna; that the accident which then occurred could have been averted by props placed against the sides of the bridge or ropes, and guys fastened to the top; that Hanna failed to adopt these precautions and all others, and precipitated the catastrophe by sending men to the top of the bridge; that this top weight was further increased by the men who were there, attempting, on Hanna’s orders, to haul up to the top heavy planks to complete the work in which they were engaged, and that the structure fell because of this overweight on the top. The plaintiff therefore charges tha’t the said Hanna was culpably negligent in the discharge of his duties in and about the said work, and that the receivers are liable in damages for his negligence.</p> <p>The evidence wholly fails to sustain, the charges of the original petition in respect to a scarcity of timber. The weight of proof is in favor of the conclusion that there was abundant timber of suitable quality, and to spare. The weight of proof is also to the effect that the false work of the bridge had been removed at the time of the accident, in due course of construction, because it was no longer needed; that there were six lateral braces in place between the top chords of the bridge; that there were seven iron rods in place between the top ánd bottom chords, and properly tightened up; that between the bottom chords, which were of iron and heavy, the old bridge work was still intact, so that lateral braces could not be placed there; and that there was nothing in these respects so out of usual condition at such a stage in the erection of such a structure as to have caused the accident. The opinion of Hanna and of one or more witnesses who were at work on the bridge when it fell was that the falling of the two chords of the bridge by which the intestate Yager lost his life, occurring, as it did, while temporary end or knee braces were about being put into one of the end bents, was caused by the bridge having got three or four inches out of plumb, and by there being at the time, besides-the weight of the chords and braces, the weight also of two men on top of the bridge, hauling up a two-inch plank for use as one of the temporary knee braces; rendering the structure top heavy. The evidence is that the manner pursued in adjusting this bridge to its place after removing the false work was the same as had been pursued by the foreman, Hanna, in the construction of 12 or 13 bridges which he had previously built on this same plan; that there was not time after the bridge got out of plumb for the use of props, ropes, or guys for steadying it; that at the time of the accident it seemed plumb to the eye; that, as soon as it began to fall, alarm was given to all of the workmen to get out of the way, who all did make their escape except Yager, who seemed to be deaf or absent-minded; that on a previous occasion, at Lynchburg, of such an alarm, Yager had acted in a similar way; and that, if Yager had had presence of mind to obey the alarm when given, he might have escaped. The evidence as to Yager is that he had been for some time a regular hand with Hanna in bridge building, and was an employé of the authorities of this railroad. The evidence as to Hanna Is that he was 58 years old at the time of the accident; that he was a bridge builder by occupation and profession, and had been so for 30 years; that he had principal charge of the bridge force of the Atlantic, Mississippi & Ohio road from Big Spring in Norfolk, a distance of 275 miles, as foreman; that he had been such foreman for 15 years; that he had been constantly employed during the time in building and repairing bridges; that he had built 13 bridges on the same plan as that at Petersburg, which was the fourteenth; and that the accident there was the first that had ever happened in his experience. I think it was stated in argument that Hanna has died since giving his deposition.</p>

This was an action for assault and battery brought by George W. Sabre against Henry Mott. Heard on motion to set aside the verdict as excessive and for error.

This ivas a proceeding by writ of habeas corpus. The applicants for the writ had been committed to jail .in Alexandria, Va., by United States Commissioner Fowler, on a charge of piracy. The acts of alleged piracy were committed on board a ferryboat which was then on its way from Washington, D. C., to Alexandria, Va., and consisted in forcibly seizing and throwing overboard certain newspapers which were intended for circulation in Alexandria.

<p>1. Patents — Preliminary Injunction.</p> <p>Where a patent had been in active life for 14 years, and large numbers of the patented article had been made and sold under it, without any question of its validity, held, that a preliminary injunction would be granted against an infringer.</p> <p>2. Same — Pawl and Ratchet.</p> <p>The Ellrich patent, No. 293,957, for an improved pawl and ratchet, held valid and infringed, on motion for preliminary injunction.</p>

This was a suit in equity by Barton A. Ballou against Edward A. Potter & Co.,.for alleged infringement of letters patent No. 380,380, issued April 3, 1888, to complainant, for an improvement in the manufacture of safety pins. The cause was heard on demurrer to the bill.

<p>I. Patents — Construction op Claims.</p> <p>When a claim, read: in its common, ordinary meaning, is explicit and clear, — when there is no apparent uncertainty, — there is no room for construction, or for expert evidence as to the meaning of the claim.</p> <p>8. Same — Weighing and Price Scale.</p> <p>The Pitrat patent, No. 885,005, for a weighing and price scale, construed, and held not infringed as to claim 12.</p> <p>■S. Same — Computing Scale.</p> <p>The Culmer patent, No. 486,663, for a computing scale, construed, and held not infringed as to claim 1.</p>

<p>This was a suit in equity by the Bridgeport Manufacturing Company against the William Schollhorn Company, John J. Henderson, and Frank J. Schollhorn for alleged infringement of a patent for an improvement in nippers.</p>

<p>Patents — Construction and Infringement — Advertising Rack. for Street Cars.</p> <p>The Randall patent, No. 380,696, for an advertising rack for street cars, if disclosing any invention whatever, must be very narrowly construed, and is not infringed by a structure which is not a complete article in itself, adapted to be readily attached to the car. 82 Fed. 732, reversed.</p>

<p>Seamen’s Wages — Desertion—Evidence eeom Log.</p> <p>15y the act of February 18, 1895, the act of August 19, 1890, was so revised and amended as to exempt vessels in the coastwise trade (except between ports in the Atlantic and ports on the Pacific) and vessels engaged in trade between the United States and Canada from the requirements of the act of 3872 as to keeping official log books. Hence the wages of deserting seamen may be adjudged forfeited without any proof that they were ever noted in the log book as deserters.</p>

<p>Shipping — Demiriiiuge Cessor Clause — Construction op Charter Party.</p> <p>A charter provided for demurrage, hut a “cessor clause” therein provided that “the charterer’s responsibility under this charter shall cease as soon as the cargo is shipped and bills of lading signed, provided all the conditions called for in this charter have been fulfilled or provided for in the hill of lading.” The charter also provided that bills of lading should he signed as presented without prejudice to the charter party, hut any difference of freight was to he settled on signing the hills of lading. Held, that tlio signing of hills of lading did not operate to release the charterers from liability for demurrage accruing prior to the signing of the bills, from their failure to fulfill the conditions of the charter.</p>

<p>1. Removal os’ Causes — Time of Application.</p> <p>Wiit'u a party not served enters a voluntary appearance, with a stipulation that he shall have a certain time to plead, an application for removal mode within that time is made in time, although not within the statutory time for answering.</p> <p>2. Same — Diverse Citizenship.</p> <p>It must affirmatively appear that the citizenship of all the defendants is diverse from that of all the plaintiffs; and, in an action in Nebraska by a citizen of Nebraska and a eitizen of Tennessee, an allegation that one of the defendants is not a citizen of Nebraska, “but that his residence and citizenship a,re unknown,” is insufficient.</p> <p>8. Same.</p> <p>A cause is not removable on the ground that it is a controversy between citizens of a state and foreign citizens, when one of the defendants is a citizen of a state, although of a different state from Unit of plaintiff.</p> <p>4. Same — Separable Controversy.</p> <p>An alien has no right to the removal of a cause on the ground of a separable controversy.</p>

<p>1. Removal ok Oatjsks — Effect of Filing Petition ano Bond.</p> <p>On the filing of a petition in the state court stating 'the essential facts for removal, accompanied by a proper bond, the cause is ipso facto removed, and the state court can take no further action. ■</p> <p>2. Sams — Jurisdictional Amount.</p> <p>The question whether an amount is involved sufficient to support the jurisdiction of the federal court must be determined by the federal court alono, and not by the state court.</p> <p>3. Same.</p> <p>In a proceeding to condemn a right of way, where defendant in his petition for removal averred that the matter in controversy far exceeded §2,000 in value, and the plaintiff claimed that it was of merely nominal value, held, that the court would be governed, as in other cases, by the amount of the claim made, in the absence of any reason to believe that it had no bona fide existence, and was only made to secure the jurisdiction.</p>

This' was a bill filed by O. P. Widaman, as assignee in insolvency of George W. Meade, against Anthony G. Hubbard, to enjoin the prosecution by the defendant of an action at law to collect a policy of insurance on the life of the deceased assignor. Heard on demurrer to the bill.

This was an action at law brought by Harriet Barker against the Preferred Accident Insurance Company, of New York, to recover on a policy of accident insurance. In the circuit court, verdict and judgment were given for plaintiff, and the defendant sued out this writ of error. The case is heard here on motion of counsel for the plaintiff for leave to amend the petition by inserting certain allegations in respect to the citizenship of the parties.

<p>1. Railroad Receivers — Foreclosure—Transfer to Purchaser — Liability for Negligence.</p> <p>A foreclosure decree provided that the purchasers should be let into possession on the execution and delivery of deeds by the special masters making the sale, and that they should take the property subject to all liabilities incurred by the receivers, which liabilities should be determined and enforced hy the court ordering the sale. The receivers in fact remained in possession for six days after delivery of the deeds, during which period a liability arose for negligent operation of the road. Held, that the delivery of the deeds did not, in law, effect an immediate transfer of possession, so as to make the purchasers directly responsible for such negligence, nor could the receivers be considered as operating the road as their agents, but that such liability was one arising during the receivership, which could only bo enforced by the federal court under the terms of the decree.</p> <p>2. Jurisdiction of Federal Court — Enjoining Proceedings in State Court.</p> <p>Where a federal court by its decree of sale retains jurisdiction of a foreclosure proceeding so far as to determine and enforce, against the property sold, claims for liability incurred by the receivers, it may enjoin the prosecution of an action on such a claim in a state court without violating Rev. St. § 720, which inhibits granting an injunction to stay proceedings in a state court.</p>

<p>1. FORECLOSURE — PARTIES.</p> <p>A foreclosure bill was brought against tlie mortgagors and their children and against “T., B., and C., all of whom are residents, * * * and guardians of said minor children, the said T. being also one of the executors of the last will of [the mortgagor] and others,” “all of which persons and corporations before named are made defendants herein.” The bill also averred conveyances from the mortgagor to said T., and that “the above-named parties against whom this bill is brought have or claim to have some interest In tlie premises * * * by mor!gage, judgment, conveyance, or otherwise,” and that each and all of the defendants have neglected to pay the debt. Held,, that T. was made a party in his individual capacity, even though the prayer for process did not contain the names of all tlie parties, as required by the equity rules.</p> <p>S. Process— Service.</p> <p>The subpoena in a foreclosure suit was directed against the mortgagor, and “T., 15., and C., guardian, etc., and T., executor, etc.,” and recited, "We command you, and every one of you, to appear,” and “the above-named defendants are notified that unless they, and each of them, shall enter their appearance,” etc. The return recited personal service "upon X. as guardian and T. as executor.” Hild, that T. was sufficiently served in 1ns individual capacity.</p> <p>3. Master’s Deed — Description—Mistake.</p> <p>A mortgage was foreclosed on the “south half” oí a certain section. Tlie master’s deed recited that he sold the “south half,” and then recited: “Mow, therefore, this indenture witnesseth that tlie said [master] ~ * does convey the north half.” Held, that tlie word “north” is presumptively a, mistake. that it may be rejected, and that without tlie substitution of any other word The deed is operative as a conveyance of the south half.</p>

<p>1. PARTNERSHIP — -APPOINTMENT OF RECEIVER.</p> <p>A receiver will be appointed at the instance of a partner when It appears that the firm is insolvent, that its accounts have been confused by the defendant partners with those of other firms of which they are also members, that they have fraudulently procured assignments to be made by such other firms, and have confessed Judgments in favor of their relatives, which can only be satisfied out of their partnership interest.</p> <p>3. State and Federal Courts — Conflicting Jurisdiction — Assignments for Cred itors — Receivers.</p> <p>The mere fact that an assignee for benefit of creditors has qualified before a New York state court, which has accepted his bond, does not give that court Jurisdiction, so as to prevent a federal court from appointing a receiver for the assigned property.</p> <p>3. Receivers — Selection and Appointment.</p> <p>A receiver appointed in a suit by a partner against his co-partners charging them with mismanagement and fraudulent misapplication of assets, should be disinterested; and the court will not appoint one, however well qualified in other respects, who is interested in judgments confessed by defendants, which can only be satisfied out of their interests in partnership assets, and who is connected by marriage with various parties secured by deeds of assignment made by defendants.</p>

<p>This was a suit in equity by the United States against the Southern Pacific Railroad Company and others to annul the certification and patenting of certain lands to defendant company under grants by congress. A decree granting the relief prayed for against the company was affirmed by the supreme court. 168 U. S. 1, 18 Sup. Ct. 18. The cause came on for further hearing in this court, on a motion of complainant for further decree as to certain defendants who were purchasers of lands from the railroad company.</p>

<p>This was a suit in equity, against the Atlantic, Mississippi & Ohio Kailroad Company and others, to foreclose a mortgage on said company’s road and property. A final decree of foreclosure and sale was entered on May 9, 1879. See Fed. Cas. No. 12,922, where the decree is set out in full. The decree provided that the sale should be made by a master "hereafter to be specially appointed for that purpose.” The appointment was not in fact made until July 9, 1880. The sale was then set for the 1st day of November following. A few days prior to that time, a bill of review was filed by the state of Virginia, in whose favor a third mortgage on the property was reserved by statute, alleging, among other tilings, that she had taken an appeal from the decree of foreclosure and sale. This bill was accompanied by a motion to postpone the sale. A petition for postponement was also filed by the defendant company. Similar motions were also made by the cities of Lynchburg and Petersburg, which were both, holders of stock and bonds in the defendant corporation. All these matters were heard together by' the court.</p>

The evidence shows the following case: The schooner was about to be sold. The present owner, Parker, got Seed, one of the libeling firm, to examine the vessel, and let him .know what he could put her in good sailing condition for. Seed went upon the vessel, made the examination, and reported to Parker that the cost would be $150. Afterwards Parker asked Seed to make another examination, and say what he could put the vessel in good condition for.

<p>In Bankruptcy.</p> <p>This was a petition filed by a discharged bankrupt to enjoin the sheriff from proceeding under an execution issued on a judgment recovered in a state court just prior to the filing of the petition in bankruptcy, and which, after becoming dormant, was revived by scire facias. The writ of scire facias had been served on the defendant, but he entered no appearance or defense.</p>

<p>h Internal Revenue — Power of Commissioner.</p> <p>Rev. St. § 3249, which provides that the commissioner of internal revenue may prescribe rules and regulations to secure a uniform and correct system of inspection, weighing, marking, and gauging of spirits, does not empower the commissioner to require an additional mark upon a package of distilled spirits in the event of a reduction in proof or volume, so as to make the absence of it a forfeitable offense under Rev. St. § 3289, as not “having thereon such mark and stamp required therefor by law," where the statutes neither prohibit such reduction nor provide for any additional marks in the event it is so reduced.</p> <p>2. Same — Evidence.</p> <p>Mere evidence that the contents as to volume and proof does not conform to the volume and proof as marked on the package, without more, fails to make a prima facie case for seizure or forfeiture.</p>

<p>Street Railroads — Compulsory Transkbus — Authority or Orry.</p> <p>The city of Atlanta, Ga., has no authority to impose a compulsory system of passenger transfers upon the Atlanta Consolidated Street-Railway Company, either under the city charter, the charters of the two corporations whose property was purchased by the said consolidated company, the state statutes ratifying and confirming the incorporation of street and suburban railroad companies, or under the constitution of Georgia and the ordinance of the city of Atlanta, made in pursuance thereof, consenting to the occupation of its streets by the said consolidated company. 83 Fed. 39, affirmed.</p>

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

<p>1. INSURANCE — Agency-—Imputed Notice.</p> <p>An agent of one insurance company who applies to the agent of another company to take part of the insurance he has negotiated on a vessel, and who receives from such other agent the policy issued by his company and delivers it to the insured, after attaching- thereto a slip directing it to be returned to him for renewal, does not thereby become the agent of the latter company, so as to make it chargeable with his knowledge of an excess of insurance above that allowed by such policy.</p> <p>2. Same — Estoppel—Acceptance op Bbnhftts.</p> <p>When an insurance agent has taken for his company part of the insurance negotiated by an agent for another company, the fact that he has made a charge on his books against such agent for the premium does not estop his company from questioning' the validity of the policy, on the theory of the acceptance of benefits by it, where no part of the premium has in fact been received by the company or the agent.</p>

At Law. This was an action by John Beard, receiver of the First National Bank of Pella, against Edward C. Bodman and others, co-partners as Milmine, Bodman & Co. The court, to whom the case was submitted without a jury, specially found the facts as follows: First. The plaintiff was before and at the time of the commencement of this suit, and is now, the receiver, duly appointed by- the comptroller of the currency, of the First National Bank of Pella.

<p>This was an action for libel, heard on a demurrer to an amended complaint.</p>

<p>1. Clerks’ Fees — Method or Computing Folios.</p> <p>Where the journal entries in criminal cases are made up in pursuance of an order of court requiring the proceedings to be entered, not .in tho form of a mere recital, but each order, motion, and proceeding in a paragraph separate from others under tho same caption, the clerk is entitled to charge 15 cents for each of said separate orders, motions, etc., although they may relate to the same case, and be entered under the same caption.</p> <p>2, Same.</p> <p>The clerk is entitled to a fee of 10 cents for each person sworn under direction of the court in order to determine his qualification as a juror.</p> <p>8. Same.</p> <p>The clerk is entitled to a fee of 15 cents per folio for the entry of orders for the removal of United States prisoners from a jail in which they had been committed, under mittimus of a commissioner, to await trial, to the jail of the place where court is to he held for their trial, and for such a number of certified copies as the court may direct the clerk to deliver to the marshal, and for filing and entering the return of said order by the marshal, and for entering in the journals of the court orders remanding, and for the production of prisoners for sentence.</p> <p>4. Same — Piuecipk to Juby Commissioner.</p> <p>The clerk is entitled to a fee of $1 for issuing a prsecipe to a jury commissioner, which is in the nature of a summons, and the only method, under existing rules of court, to procure his attendance for the drawing of the jury.</p> <p>5. Same — Memorandum Record of Entry and Filing or Papers.</p> <p>The clerk, when required by rules of court to keep such a record, is entitled to a fee of 15 cents for the record memorandum in his reeord hook known as the “Clerk’s Combined Docket,” in addition to the filing fee of 10 cents for each paper, and the regular docket fee.</p> <p>6. Same — Seals.</p> <p>The clerk is entitled to a fee of 10 cents for swearing, 15 cents for the jurat, and, where there has been no express waiver, 20 cents for the seal of the court attached to affidavits taken before him.</p> <p>7. Same — Certified Copies and Seals. 1</p> <p>The requisition for a duly-certified copy of any particular record in possession of the clerk ordinarily requires the formality of a seal to tlie certificate; and, unless there has been an express waiver thereof, the clerk should attach the same, and is entitled to his fee therefor.</p> <p>8. Same.</p> <p>The clerk is not entitled to charge for seals to copies of orders on the marshal to procure meals for the jury, as such seals have been waived by the department.</p> <p>9. Same.</p> <p>The clerk is entitled to a fee of 15 cents for preparing orders of court,* when directed by the court so to do.</p> <p>10. Same.</p> <p>The clerk is entitled to a fee for making certificates to attach to the marshal’s account, relative to the method of the issuance of bench warrants, as these were required by the department in proof of said accounts.</p> <p>11. Same.</p> <p>The clerk is entitled to charge for attaching duplicate jurats to the duplicate accounts of the deputy marshals, where the oath has been taken before him as to these vouchers in the marshal’s account. „</p> <p>12. Same.</p> <p>The marshal’s accounts are required to he made in duplicate, and this includes all oaths, copies of order», and incidental proof as the department, by its regulations, requires; and, wherever the charge for the original is proper, "the clerk would be entitled to an equal fee for the duplicate.</p> <p>13. Same.</p> <p>The clerk is entitled to a fee of 10 cents for administering oaths to accounts of deputy marshals, being their vouchers in the marshal’s account, and for like services to the actual expense account of the chief office deputy marshal and district attorney.</p> <p>14. Same.</p> <p>The clerk is entitled to charge at the rate of 15 cents per folio for entering the names and addresses of persons selected by him to be placed in the jury box.</p> <p>15. Same.</p> <p>The clerk Is entitled to charge the regular statutory fee for filing all papers sent up by the commissioner in criminal eases; for filing pleas in abatement in criminal prosecutions; for entering orders approving accounts of officers of the court, even though the rendition of said accounts may have been unnecessary, by reason of the failure of the officer rendering them to include the items therein in a previous account; and for filing certificates of deposit of money covered into the treasury; and for making the certificate of service indorsed on a writ of error sued out by the United States; and for entering on the minutes of court, in pursuance of an order thereof, the oaths of office of deputy marshals; and for making such certificates as the department has required by the forms furnished to the marshal.</p> <p>16. Same.</p> <p>The clerk is entitled to a fee of $1 for issuing, in pursuance of an express order of court, commissions to the commissioners appointed under the act of May 28, 1896; and for filing each paper and docket sent up by the old set of commissioners, whose office had expired by virtue of said act, a fee of 10 cents; and a fee of 10 cents per folio for making copies of the orders appointing said commissioners, to forward to the attorney general.</p> <p>17. Same.</p> <p>The clerk is entitled to a fee of 15 cents per folio for making reports of the disposition of certain cases, when called upon by a department of the government to do so; and, if those reports are required to be made on separate slips, each slip may be computed as a folio.</p> <p>18. Same.</p> <p>The clerk is entitled to charge at the rate of 15 cents per folio for making report of the taking of testimony in an admiralty cause referred to him.</p> <p>19. Same.</p> <p>The clerk is entitled to charge 10 cents for filing orders of court for the subpoena of poor persons, witnesses, who have applied, under Kev. St. § 878, for such order.</p> <p>(Syllabus by the Court.)</p>

The San Francisco Bridge Company was convicted of the violation, as a contractor on the new post office at San Francisco, of the act' of congress of August 1, 1892, by requiring and permitting laborers to work on such building more than eight hours in one calendar day. Heard on motion in arrest of judgment. .

<p>1. Copyrights — What Constitutes Previous Publication — Restriction on Use by Purchaser.</p> <p>The selling of copies of a book by the author to all persons paying him for a course of instruction connected therewith, during a number of years, constitutes a publication which deprives him .of the right to subsequently obtain a copyright, though each purchaser was bound by contract not to communicate the contents of the book to any one else.</p> <p>2. Jurisdiction op Federal Courts — Copyrights.</p> <p>After a federal court has determined, in an action for the infringement, that a copyright is invalid, it has no jurisdiction, as between parties who are citizens of the same state, to grant relief on other grounds.</p>

In Equity. Suit by Bowles Colgate and others against Charles L. Adams and others to enjoin infringement of a trade-mark, and restrain unfair competition in trade.

This was a suit in equity by (lie New Departure Bell Company against P. & E. Corbin and E. D. Rockwell for alleged infringement of letters patent No. 517,395, issued March 27, 1894, to E. D. Rockwell, for improvements in bells.

<p>1. Maritime Liens — Repairs Authorized by Ostensible Owner.</p> <p>Where a Vessel is sold, and, after part payment of the purchase price, is delivered to the purchasers, under the circumstances stated below, with authority to repair her at their own expense, the seller thereby invests the purchasers with power to create a lien for repairs made by persons without notice of the vendor’s title.</p> <p>3. Same — Inquiry as to Title.</p> <p>Under the circumstances stated below, a repairer may rely on the apparent authority of the legal possessor and ostensible owner of a vessel to bind her for necessary repairs, and need not institute an inquiry into her record title.</p> <p>8. Lien Given by Statute — Intent to Give Credit to Vessel.</p> <p>In determining if credit was given to the vessel or only to her owner, in the absence of express agreement, regard will be had to the circumstances of each case, including the laws and usages of the port in which the repairs were made.</p> <p>4. Repairs Authorized by Ostensible Owner — Personal Liability of Owner.</p> <p>Tlie owner of a vessel Is not personally liable for repairs made in reliance on the ownership of one whom he had clothed with possession and apparent ownership.</p>

<p>This was a libel in rem by the Union Marine Insurance Company, Limited, against the steam canal boat Fred M. Lawrence.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Appellee Benjamin Harrison, trustee, on December 30, 1896, exhibited his bill in the circuit court of the United Slates for the district of Indiana against his eo-appellee, the Terre Haute & Logansport Railroad Company, and this appellant. He sought to foreclose a deed of trust wherein his eo-appollee had alienated to him on January 1, 1883, certain railroad property to secure the payment of bonds of that company aggregating 81.000,000, with interest to be paid semiannually at the rate of 6 per cent per annum. The bill was taken as confessed against the Terre Haute & Logansport Railroad Company. Appellant answered, and filed its cross hill. Exceptions were sustained to certain portions of the answer, the cross bill was dismissed for want of equity on demurrer, a final decree of foreclosure went in favor of appellee Harrison, and appellant brings the record here on appeal.</p> <p>On November 1, 1879, the Terre Haute & Logansport Railroad Company owned a line of railroad from Rockville to Logansport, in Indiana. It also held a road from Rockville south to Terre Haute, under a long lease from the owner, the Evansville & Terre Haute Railroad Company. This property, together with all other property which the appellee railway company then had or might thereafter acquire for use in connection with said railroad, was on that day alienated to Benjamin Harrison, trasteo, to secure coupon bonds aggregating 8000,000, payable January 1,1910, with interest to be paid semiannually at the rate of 6 per cent, per annum. Appellant then owned and operated a line of railway from Indianapolis westward through Terre Haute to the Illinois state line. Under date of November 22, 1879, the Terre Haute & Lo-gansport Railroad Company, as party of the first part, and appellant, as party of the second part, made the following agreement:</p> <p>“Operating Contract between Terre Haute and Logansport Railroad Company and Terre Haute and Indianapolis Railroad Company, under date of November 22nd, 1879, for Ninety-Nine Years from December 1st, 1879.</p> <p>“This indenture, made this twenty-second day of November,. A. D. 1879, by and between the Terre Haute and Logansport Railroad Company, a corporation of Indiana, party of the first part, anil the Terre Haute and Indianapolis Railroad Company, likewise a corporation óf Indiana, party of the second part, witnesseth: Whereas, the party of the first part is the owner of and is operating a line of railroad extending from Rockville, Parke county, Indiana, to Logansport, Cass county, Indiana, and, under a contract with the Evansville and Terre Haute Railroad Company, is in possession of and operating a railroad extending from said town of Rockville to Terre Haute, Indiana, the said two lines of railroad being operated as one continuous line from Logans-port to Terre Haute, Indiana, at which latter place it connects with the line of railroad owned and operated by the party of the second part; and whereas, said line of railroad of the party of the first part is in bad repair, and poorly «quipped with rolling stock, and is wholly lacking in machine or repair shops, terminal and depot facilities, and the party of the first part has not the means in hand to make the necessary repairs, and enlarge its equipment of ¿•oiling stock, or build machine shops or depots, or acquire terminal facilities; and whereas, if said railroad of the party of the first part be operated in conjunction with the railroad of the party of the second part the present and immediate necessities of said railroad of the party of the first part can be relieved, and the said line of railroad operated with economy, and its business -developed, to the great and mutual advantage of both parties hereto: Now, therefore, it is mutually agreed by and between the parties hereto:</p> <p>“Article First. That in consideration of the covenants and agreements to be performed by the party of the second part, as hereinafter specified, the party of the first part hath agreed and doth hereby agree to put said party of the second part, its agents, servants, and employes, into possession of the line of railroad owned and operated by the party of the first part, as aforesaid, extending from Torre Haute, in the county of Vigo, through the counties of Vigo, Parke, Montgomery, Boone, Clinton, Carroll, and Cass, to Logans-port, in said county of Cass, all in the state of Indiana, a distance of about 116 miles, together with all property, real and personal, and all the rolling stock, equipment, and franchises, to said line of railroad appertaining or belonging.</p> <p>“Article Second. The party of the second part, in .consideration of the premises, agrees to take charge of said line of railroad and property, and operate the same for a period of ninety-nine (99) years from the first day of December, A. D. one thousand eight hundred and seventy-nine (1879); and after retaining seventy-five (75) per cent, of the' gross receipts from all traffic moved over said line, or business done thereon, for its own separate use and exclusive benefit, the party of the second part agrees to appropriate the remaining twenty-five (25) per cent, as follows, to wit: First. To the payment of taxes assessed against the property held and operated under this contract. Second. To the payment of the interest as it falls due on the first mortgage bonds of said party of the second part; being an issue of bonds to the amount of five hundred thousand dollars, bearing interest at the rate of six (6) per centum per annum, payable on the first day of January. A. D. 1910, and secured by a deed of trust conveying to Benjamin Harrison, of Indianapolis, Indiana, as trustee, the line of railroad and property of the party of the first part, hereinbefore described. Third. To the payment of rental accruing to the Evansville and Terre Haute Railroad Company for the use of its said line of railroad, extending from Terre Haute, Indiana, to Rockville. Indiana. Fourth. The surplus, if any, to be paid annually to said party of the first part.</p> <p>“Article Third. The party of the second part further agrees that if the said 25 per cent, shall not be sufficient to pay the taxes, interest, and rental aforesaid, and proper cost of maintaining the corporate organization of the party of the first part, then the deficit shall be advanced by the party of the second part at such time or times as may be necessary to make prompt payment of the said interest, taxes, and rental and costs as the same become due; and the amount so advanced shall be charged to and repaid by said party of the first part to the party of the second part.</p> <p>“Article Fourth. The party of the second part further agrees that it will, at its own expense, during the continuance of this agreement, keep, preserve, and maintain the said line of railroad of the party of the first part in good working condition and repair, and will in like manner maintain and preserve in good repair all the rolling stock, buildings, fixtures, and machinery, and all other property, belonging and appertaining to said railroad, and taken by the party of the second part by virtue hereof, whether the same be received at the time of the taking effect of this agreement, or be hereafter acquired, pursuant to the terms hereof.</p> <p>“Article Fifth. Inasmuch as the line of railroad to be operated under this contract is eomparati rely incomplete, as to rights of way, rolling stock, grades, embankments, cuts, trestles, bridges, fences, depots, stations, sidings, and terminal facilities, and other items of construction, and it is anticipated by both parties hereto that it will become necessary or advisable to make changes and additions that will be, in their nature, permanent improvements to said line, therefore it is understood and agreed that said party of the second part may, in its discretion, make such changes, additions, improvements, and replacements to and along said line of railroad, and may purchase and acquire such rights of way, rolling stock, and equipment, as to the party of the second part may seem advisable or necessary for the proper and successful operation of said road; and the party of the first part covenants and agrees to repay the party of the second part all outlays made or expenses incurred in making such changes, additions, improvements, purchases, and replacements, including any additional real estate or interests therein procured for the use of said line of railroad.</p> <p>“Article Sixth. The party of the second part agrees to pa.y and satisfy all legal and valid claims for damages to persons or property occasioned by the operation of the said line of railroad by the party of the second part, and to save and keep harmless the party of the first part from all costs or expenses on account thereof.</p> <p>“Article Seventh. And it is expressly understood that the party of the first part will not in any way further incumber its said railroad property, and will at the maturity of its bonds hereinbefore mentioned, amounting to five hundred thousand dollars, protect the party of the second part in its quiet enjoyment of the said line of railroad and property taken by the party of the second part under this agreement, as against a foreclosure and sale of said railroad and property to pay said principal, and if the party of the first part has not the means to pay said principal, and is unable to procure the same, then the party of the second part agrees to advance the means to take up the said bonds at their maturity; but it is expressly agreed that, in the event said bonds are so taken by the party of the second part, they shall not be deemed paid, but shall remain valid and subsisting securities in the hands of the party of the second part for the repayment, to it by the party of the first part of the advances made to take up said bonds as aforesaid: provided, always, that the party of the first part may, if it so desires, at the maturity of said bonds renew them for a further period of 30 years at a rate of interest not exceeding six (6) per centum per annum.</p> <p>“Article Eighth. It is agreed that possession of said line of railroad, franchises, and property is to be given under this indenture on the first day of December, A. D. 1879. And the party of the first part covenants and agrees to and with the party of the second part that the said party of the second part shall have the quiet and uninterrupted use and exclusive enjoyment of said line of railroad, property, and franchises for tlie said term of ninety-nine years, and shall enjoy, peaceably and without interference, all the powers, rights, and privileges of the said Terre Haute and Logansport Railroad Company, so far as the same may be needful to maintain and operate said railroad in the manner aforesaid, including the right to impose and collect tolls and rates for transportation of freight and passengers, as fully and effectually as the said Terre Haute and Logansport Railroad Company could do if operating said line.</p> <p>“Article Ninth. It is further agreed that if, at any time, it becomes necessary to pay any sum or sums of money to perfect the title of the party of the first part in and to the property taken by the party of the second part under this contract, or to protect the party of the second part in its possession and use thereof, and the-party of the first part has not the means to pay or adjust the same, then the parly of the second part will advance the necessary sum or sums.</p> <p>“Article Tenth. The party of the second part shall have the right at any time to retain out of any moneys in its possession, due to the party of the first part under this agreement, any and all sums advanced by it to the party of the first part; and, if the party of the second part takes up the first mortgage bonds aforesaid of the party of the first part at maturity thereof, the party of the second part agrees that it will not enforce payment thereof for the period of six (6) months from and .after the date it pays the money for said bonds.</p> <p>“In testimony whereof, the Terre Haute and Logansport Railroad Company and the Terre Haute and Indianapolis Railroad Company have caused these presents to he executed by their respective presidents, and their corporate seals to be hereunto affixed by their respective secretaries, the day and year first above written.</p> <p>“Terre Haute and Logansport Railroad Company,</p> <p>“[Seal.] , ' By W. R. McKeen, President.</p> <p>“Attest: Geo. E. Farrington, Secretary.</p> <p>“Terre Haute and Indianapolis Railroad Company,</p> <p>“[Seal.] By W. R. McKeen, President.</p> <p>“Attest: Geo. E. Farrington, Secretary.”</p> <p>Afterwards, and under date of June 21, 1883, the Terre Haute & Logansport Railroad Company, as party of the first part, made with appellant, as party of the second part, a second agreement, in words following:</p> <p>“Contract between the Terre Haute and Logansport Railroad Company and Terre Haute and Indianapolis Railroad Company for Operating the Terre Haute and Logansport Railroad Company’s Extension, under Date of June 21st, 1883.</p> <p>“This indenture, made this 21st day of June, A. D. 1883, by and between the Terre Haute and Logansport Railroad Company, a corporation of the state of Indiana, as party of the first part, and the Terre Haute and Indianapolis Railroad Company, also a corporation of the state of Indiana, as party of the second part, witnesscth: Whereas, since the execution of the operating contract of November 22d, A. D. 1879, between the parties hereto, the party of the first part has determined to make an extension of the Terre Haute and Logansport Railroad from the city of Logansport, Cass county, Indiana, through the counties of Cass, Fulton, Marshall, and St. Joseph, in the state of Indiana, to the city of South Bend, Indiana, and for the purpose of constructing such extension, and in order to raise money to pay for additional equipment and permanent improvements and betterments to the railroad now operated by the party of the second part under said contract of November 22d, A. D. 1879, the party of the first part has decided to issue its bonds to an amount not exceeding one million dollars, dated January 1st, A. D. 1883, due January 1st, A. D. 1913, and designated as ‘The Terre Haute and Logansport Railroad Company’s Extension Mortgage Six per Cent. Bonds’; and whereas, to secure the payment of said bonds the party of the first part, under date of January 1st, A. D. 1883, has conveyed by its trust deed or mortgage to Benjamin Harrison, of Indianapolis, the railroad property and appurtenances now owned by the party of the first part between Rockville and Logansport, and also the said proposed extension of the Terre Haute and Logansport Railroad from Logansport to South Bend, Indiana; and whereas; the parties hereto desire that the said extension, when completed, shall be operated by the party of the second part, and the boards of directors of the parties hereto have respectively authorized the making of an operating contract for said extension upon the terms and conditions hereinafter specified: Now, therefore, it is mutually agreed between the parties hereto as follows, to wit:</p> <p>“Article First. In consideration of the covenants and agreements to be performed by the party of the second part, as hereinafter specified, the party of the first part has agreed, -and does hereby agree, to put said party of the second part, its agents, servants, and employes, into possession of the said extension of the Terre Haute and Logansport Railroad between Logansport and South Bend, a distance of about sixty-seven miles, together with all the property, real, personal, and mixed, and the franchises acquired or to be acquired for the use of said extension.</p> <p>“Article Second. The party of the second part hereby agrees to take possession, from time to time, of so much of said extension as may be ready for operation, and operate the same, and finally take possession of the whole of said extension, and to operate the same until the first day of December, 1978, in connection with the Terre Haute and Logansport Railroad, and as one continuous line between the cities of Terre Haute and South Bend aforesaid; and alter retaining seventy-five per cent, of the gross receipts from all traffic moved on sa.id continuous line, or business done thereon, for its own sepai ate use and exclusive benefit, the party of the second part agrees to appropriate the remaining twenty-five per cent, as follows, to wit: First. To the payment of all taxes assessed against the property held and operated under the said contract of November 22d, A. D. 1879, and this contract. Second. To the payment of Hie interest as it falls due upon the following mortgage bonds of the party of the first part, to wit: Its first mortgage bonds, amounting to five hundred thousand dollars, payable January 1st, A. D. 1910, with interest at the rale of six per cent, per annum, payable semiannually on the first days of January and July, and its said extension mortgage bonds amounting to one million dollars, payable January 1st, A. D. 1918, with interest at six per cent, per annum, payable on the first days of January and July in each year: each issue of said bonds being secured by a mortgage or deed of trust to Benjamin Harrison, Esq., of Indianapolis. Third. To the payment of the rental, as it accrues, to the Evansville and Terre Haute Railroad Company for the use of its line of railroad between Terre Haute and Rock-ville. Fourth. The surplus, if any, to be paid annually to the party of the first part.</p> <p>“Article Third. The party of the second part agrees that if the said twenty-five per cent, shall be at any time insufficient to pay the taxes, interest, and rental aforesaid, and the proper cost, of maintaining the corporate organization of the party of the first part, then the deficit shall be advanced by the party of the second part at such time or times as may be necessary to snake prompt payment of said interest, taxes, rental, and cost as the same become due, and the amount so advanced shall he charged to and repaid by said party of the first part to the party of the second part.</p> <p>“Article Fourth. The party of the second part further agrees that it will operate said extension for the term aforesaid upon the same terms, as to the maintenance, repair, and preservation thereof, and payment of damages and costs resulting from the operation thereof, as are now required of it in its operation of the line of railroad between Terre Haute and Logansport under the said contract of November 22d, A. T). 1879; and the party of the first part agrees that the provisions of said contract under which the party of the second part is eniiüed to make changes, additions, improvements, and replacements to said line between Torro Haute and Logansport, and to perfect titles thereto and purchase additional equipment, etc., etc., and retain any moneys due the party of the first part, shall be, and they are hereby, extended and made applicable to said extension, the same as if said extension had been included in and covered by said contract of November 22d, 187!).</p> <p>“Article Fifth. Tt is agreed that the party of the first part may renew from time to time, if it so desires, its said extension mortgage bonds, at a rate of int'erest not exceeding six per coni, per-annum; and if the party of the first part be unable to pay the principal of said extension bonds, or of any renewals thereof, when they become due, then the party of the second part agrees that it will advance ihe money to take up said bonds or renewals, as the caso may be, and hold them as security for the replacement to it within six months of (lie advances made by it to take them up; and, if such advances be not paid within six months, then the party of the second part may enforce the collection thereof, the same as any original or other holder of said bonds or renewals could do upon default in payment thereof at maturity.</p> <p>“Article Sixth. The party of the first part covenants and agrees that the parly of the second part shall have quiet and uninterrupted use and exclusive enjoyment of said extension until December 1st, A. D. 1978, and shall enjoy peaceably and without interference all the powers, rights, and privileges of the party of the first part, so far as the same may be needful to maintain and operate said extension in the manner aforesaid, including the right to impose and collect tolls and rates for transportation of freight and passengers, as fully and effectually as the party of the first part could do if operating said extension; and the party of the second part agrees that if, at any time, it becomes necessary 1o pay any money to perfect the title of the party of the first part to any property taken under this contract, or to protect the party of the second part in its possession and use thereof, and the party of the first part has not the means to pay or adjust the same, then the party of the second part will advance the necessary sum or sums.</p> <p>“In testimony whereof, the Terre Haute and Logansport Eailroad Company and the Terre Haute' and Indianapolis Eailroad Company have caused these presents to be executed by their respective presidents, and their corporate seals to be hereunto affixed by their respective secretaries, the day and year first above written.</p> <p>“Terre Haute and Logansport Eailroad Company,</p> <p>“[Seal.] By W. E. McKeen, President.</p> <p>“Attest: Geo. E. Farrington, Secretary.</p> <p>“Terre Haute and Indianapolis Eailroad Company,</p> <p>“[Seal.] By W. E. McKeen, President.</p> <p>“Attest: Geo. B. Farrington, Secretary.”</p> <p>The trust deed and mortgage of January 1, 1888, for the foreclosure of which the bill was filed, conveyed the road from Eoclcville to Logansport, with everything incidental thereto, the proposed extension to South Bend, and all after-acquired property becoming part of said line or of its equipment, and was otherwise in the usual form of such alienations. Eaph of the bonds — as well those secured by the first trust deed as those secured by the second — was guarantied in due form by this appellant. The extension spoken of in the second operating agreement was, prior to November 24, 1SS4, duly made and completed. Appellant took the custody of the railroad property under the first operating agreement, and so held said property until the second operating agreement, and thereafter took the custody of the extension as the same was completed, and so held and operated the entire property, including the leased line from Eockville to Terre Haute, until November 13, 1896, when a receiver was appointed for that company by the circuit court of the United States for the district of Indiana; and said property has since been in the custody of the said court, pursuant to said receivership.</p> <p>The answer filed by appellant, as well as its cross bill, showed that appellant had received as gross earnings of the road from Terre Haute to South Bend $8,550,159.04; that it had expended for operating purposes $7,593,793.36; that it had expended for taxes on the property, in payment of interest on the bonds of the two series, and for rent on the short line from Eockville to Terre Haute, a total of $1,752,462.86; and that from time to time during the period commencing with its custody of the road under the first operating agreement, and ending with the receivership, it had expended in betterments, apparently on that part of the line between Eockville and South Bend, and in operating equipment, $781,979.59. A portion of the equipment added to the property by appellant in 1892 was 100 box cars, upon which it is said Blair & Go., the manufacturers, still have some claim for a balance yet unpaid, in the form of promissory notes made by appellant, and held by said Blair.& Co. The answer and cross bill showed further that up to October 31, 1882, appellant had received as gross earnings of the road $744,010.94; that the amount expended up to the date last mentioned for betterments and operating expenses was $955,140.99; that, of the sum last named, $59,388.80 was for bet-terments; that the amount expended up to the last-named date for rent of the line from Eockville to Terre Haute, for interest on the mortgage, and for taxes, was $136,622.30; that the total gross earnings up to October 31, 1883, was $1,087,923.19; that the total expended up to the date last mentioned for betterments and operating expenses was $1,331,783.23; that the total expended for rent, interest, and taxes up to the same date was $215,974.34; and that, assuming the contracts to be valid, there was on October 81, 1896, a large balance due from the Terre Haute & Logansport Eailroad Company to appellant, of which, as computed by appellant, $443,994.57 was for improvements, betterments, and additions to said property; “and, to that extent, defendant [appellant] says that diversions were made from gross earnings to pay taxes, interest, and rentals during the period” from December 1, 1879, to October 31, 1896. The theory favored in appellant’s pleading is that its guaranties on the bonds and both the operating agreements were ultra vires and void. In either case, — that is, whether these guaranties and agreements be held void or valid, — appellant asserted a large balance as due to it on an accounting with the Terre Haute & Logansport Railroad Company, and claimed a lien for such balance prior to appellee Harrison’s extension mortgage, or that appellee Harrison, representing the extension bondholders, ought, in equity, to pay said balance, as a condition precedent to foreclosure.</p>

<p>Lease — Lien for Improvements.</p> <p>Under a lease which provides that at the expiration of the term the lessor shall allow the lessees for improvements placed upon the premises, and that the lessor-shall become the owner of such improvements “upon payment to the lessees of said sum,” the lessees have an implied lien upon the premises, which may be enforced in a court of equity.</p>

<p>Lien on Invalid Corporate Bonds — Foreclosure—Cross Bill.</p> <p>Where corporate bonds recite their issue under a certain valid statute, and in pursuance of its provisions, and nothing upon their face indicates their invalidity, a defendant to a bill, seeking their sale in part satisfaction of certain liens, may, by cross bill, show that they are in reality void, and thus prevent the court from decreeing a sale, whereby they may pass for value to innocent purchasers.</p>

<p>Railroads — Sale on Foreclosure — Rights op Purchaser.</p> <p>The purchaser of railroad property at foreclosure sale is not entitled to the earnings of the road after confirmation, where he has persistently delayed compliance with his hid, and has not paid the purchase money.</p>

<p>1. Ghaut op Lands under Judicial Investigation — Power op Congress.</p> <p>Act .Tan. 12, 1891, and the patent issued in pursuance thereto, granting to the Mission Indians a portion of the lands embraced within the Mexican grant, “La Jolla Rancho,” are valid, and withdrew the lands so granted from the operation of Act Jan. 28, .1879, permitting the legal representatives, successors, or assigns of José and Pablo Apis to litigate in the United States district court of California their claim to such lands.</p> <p>2. Mexican Land Ghant — Rights Granted by Spectal Act — Revocation.</p> <p>The permission accorded-- the legal representatives, successors, or assigns of José and Pahlo Apis, by Act Jan. 28, 1879, to litigate their claim and title to “La Jolla Rancho” in the United States district court of California, was a gratuity on the part of the United States, and revocable at any time before final decree in such proceedings.</p> <p>8. Title to Lands in Mexican Grant — Special Aot — Adverse Claims — Burden op Pkoop.</p> <p>Act Jan. 28, 1879, permitting the legal representatives, successors, or assigns of José and Pablo Apis to litigate their claim to “La Jolla Rancho” in California, provides, inter alia, that no lands shall he confirmed to said claimants to which there are valid adverse claims under any laws of the United States; that, before filing their claims, sneh claimants shall execute releases to persons in possession of any portion thereof under valid claim; and that the court, before rendering a decree of confirmation, shall ascertain that said releases have been duly executed. Held, that when such claimants fail to affirmatively show that no part of the land claimed by them was possessed by persons having valid claims thereto January 28, 1879, or, if so held, that claimants had. before bringing their suit,' executed valid releases to such persons, their claim must, be rejected.</p>

<p>In Equity.</p> <p>Suit for injunction by the Chicago General Street-Railway Company against Edward B. Ellieott, Carter H. Harrison, the city of Chicago, and the Chicago General Bail way Company.</p>

<p>Master and Servant — Dangerous Machinery — Notice.</p> <p>A boy 20 years old, employed in a sawmill, went on a personal errand to a part of the mill where bis duties did not require him to be. While there he attempted tp step over a revolving shaft, whose top was 2814 inches from the floor, when his apron caught in the roughened and projecting head of a spline key, which held a small pulley on the shaft, and he was drawn upon the shaft and injured. He testified that he knew of the danger from the shaft, and lifted his apron to avoid it, but did not know nor think of the spline key. Held, that as the injury occurred under conditions not created by the mill owner, who had no reason to anticipate the presence of the boy near the shaft, or his conduct in lifting his apron high enough to avoid the shaft, but not the spline key, there could be no recovery.</p>

This was an action at law by the state of Nebraska against the First National Bank of Orleans, P. 0. Hedlund, receiver, and John W. Barton et al., sureties, to recover deposits of state funds secured by a bond executed by tbe bank and suck sureties. The ruling is on the demurrer of the sureties to the petition.

In 1859, at his home, in Botetourt county, Va., Moses Lipse died, leaving a will, 12 children, and 391 acres of land. His sons David H. and Samuel were named as executors, and directed to sell the land and divide the proceeds among the children. Both qualified, and in 18G0 sold the land to 0. 0.

This is an action for money had and received. The allegation in the complaint is “that on or about the 1st day of May, 1896, the defendant received from the government of the United States the sum of $3,200, to and for the use and benefit of the plaintiff.” The answer of the defendant admits the collection of the sum qf $3,200' from the government, but denies that the money, or any part of it, was received “to or for the use or benefit of said plaintiff,” and denies “that…

<p>1. Marshal’s Fees — Mileage.</p> <p>In the service of a writ, the only statutory requirement is that travel shall he actual, to be computed from the place where the process is returned to the place of service; and the circumstance that an Interval of several days occurred after a portion of the distance had been traveled, and before its service, cannot defeat the marshal’s claim for mileage.</p> <p>2. Same.</p> <p>The marshal is entitled to mileage from the limits of his district to the commissioner having jurisdiction of a case, where, through mistake or ignorance, his deputy, acting under a warrant legal on its face, has takeD custody of .a person therein named, outside of his district, on the theory that a legal arrest, so far as the government is concerned, was effected immediately upon entry into the district in which the deputy could legally act.</p> <p>8. Same.</p> <p>The proviso in the appropriation act of August 18, 1894, whereby no mileage is allowed to any officer violating the provisions thereof relative to the taking of prisoners before the commissioner or nearest judicial officer having jurisdiction under existing laws, affects only the appropriation thereby made, and does not have the effect of a general restriction.</p> <p>4. Same.</p> <p>Without a certified copy of a complaint attached to a warrant issued by a commissioner, a commissioner or magistrate nearer the place of arrest than the commissioner issuing the warrant would be without jurisdiction to hear the case.</p> <p>5. Same.</p> <p>The marshal is entitled to mileage computed according to paragraph 25, § 829, Rev. St., without regard to the question as to whether the arrest was effected by the deputy nearest the place where the prisoner was apprehended.</p> <p>6. Same — Service of Commitment.</p> <p>The marshal cannot disregard the lawful process or orders of the court, even though they are superfluous, but must execute such as are issued to him in the ordinary practice, for which he is entitled to the ordinary fee.</p> <p>7. Same — Per Diem before Court and a Commissioner on the Same Day.</p> <p>A marshal is entitled to charge a per diem for services before a commissioner upon the same day that he was allowed a per diem for attendance upon the court.</p> <p>8. Same — Per Diem of Deputy.</p> <p>The marshal is entitled to the per diem of his deputy where a case was set for hearing before a commissioner, and the deputy attended, but the defendant failed to appear, and his bond was estreated, and an attachment or alias warrant issued.</p> <p>9. Same — Discharge of Defendant on Temporary Recognizance.</p> <p>The marshal is entitled to charge for the release of a defendant on bail before the commissioner, where such release involves the taking of a bail bond.</p> <p>10. Same — Oknecessary and Excessive Sukyicesi.</p> <p>Ln the absence oí any showing of bad faith, the more fact that after the issuance of a warrant, and before arrest, the defendant attended before the commissioner as a witness, but neither the commissioner nor the deputy liad at that time any process for his arrest in their actual possession, would not be sufficient to justify the accounting officers of the. treasury in disallowing all fees earned in the subsequent arrest, as unnecessary and excessive, especially where the account, has been duly approved by a court in accordance with law.</p> <p>11. Same — Employment op Bailiiws.</p> <p>The marshal is entitled to be reimbursed for sums disbursed to bailiffs in excess of three, and not exceeding five, allowed to be employed under section 715, Rev. St., employed by him under the order of a circuit or district court; and the appropriation act of August 18, 1894, and the proviso thereto attached, do not have the effect of general legislation, so as to repeal said section 715.</p> <p>12. Same.</p> <p>The proviso above referred to authorizes the employment of not exceeding throe bailiffs in each court; and where, incidentally, the business of the circuit and district courts for any district are both conducted in the same room, and presided over by the same judge, it does not follow that this proviso restricts the number of bailiffs in both courts to three, but, on the contrary, the court has the power to order the marshal to employ a double set of bailiffs, — one for each court.</p> <p>(Syllabus by the Court.)</p>

<p>1. Habeas Corpus — Constitutionality op Statute.</p> <p>When the constitutionality of a state statute has already been sustained by the state courts, a prisoner arrested by virtue of such statute has a right to have its validity under the federal constitution passed upon by the federal courts in a habeas corpus proceeding.</p> <p>3. Insolvent Banks — Receiving Deposits — Embezzlement.</p> <p>The act of Illinois, providing that any banker receiving a deposit after insolvency shall be guilty of embezzlement, does not deprive any person of liberty or property without due process of law, or deny any person the equal protection of the law, in violation of Fourteenth Const. Amend. U. S. § 1.</p>

<p>SAIiTAaE — COMPEKSaT J ON.</p> <p>A steamer, heavily laden, suddenly sprung a leak, and quickly filled, in the narrow channel of the James river. She was hastily abandoned by her master and crew, without casting anchor or setting lights, and settled lightly on the bottom, where she was liable to be run into by several large ocean steamers which were due to pass the following night. At her master’s request, a steam yacht went to her rescue, and in the course of two or three hours towed her to a wharf. Held, that this was a salvage service, for which ¡5600 should be awarded on a salved value of ¡52,400.</p>

<p>Demurrage — Lien on Cargo — Effect of Delivery.</p> <p>Wlien cargo lias been absolutely delivered to tbe consignee before service of process thereon, the lien for demurrage is lost.</p>

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

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

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

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

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

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

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

<p>Appeal and Gross Appeal from the District Court of the United States for the Northern District of Florida.</p>

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

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

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

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

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

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

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

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