Volume 89 — Federal Reporter

<p>Removal oe Causes— Federal Question — Constktjction op Revenue Act.</p> <p>A cause involving tlie question whether an express company or its customer must furnish the stamp required by the war revenue act of 1898 to be aifixed to a receipt given by the company is one arising under a law providing internal revenue, within Rev. St. § 629, and is removable.</p>

This was a bill in equity by Louis Post and others, as stockholders of the Beacon Vacuum Pump & Electrical Company, against such company and the Beacon Lamp Company, to rescind a transfer of the property of the former corporation to the latter. In the circuit court, demurrers to the bill and to the amended bills were sustained, and the cause dismissed.

<p>Creditors’ Bill — Judgment to Support — Suit in Different District.</p> <p>A judgment and return of execution tbereon in a circuit court of one district of the United States will not sustain a creditors’ hill filed in a different district.</p>

<p>1. Injunction against Trespass — Necessity op Possession by Complainant.</p> <p>In California trespasses on land will not be enjoined wben complainant has been wholly disseised, and defendant is in adverse possession.</p> <p>2. Bill to Quiet Title — Equity. Jurisdiction op Federal Courts — Neces-</p> <p>sity op Possession by Complainant.</p> <p>A federal court will not entertain a suit to quiet title to land of which defendant is in the actual possession, when the bill is filed, though such suit is authorized by a state statute.</p>

<p>This was tin application for a writ of habeas corpus in behalf of Ala,, <t Hotrfried, restrained of his liberty under an order of deportation issued by the authorities of the immigration bureau.</p>

<p>Aliens — Fraudulent Naturalization — Cancellation of Papers.</p> <p>Naturalization papers will toe canceled as improvidently issued where it is made to appear to the court that the affidavit and the testimony on which the papers were issued were false, and that the applicant was not in fact eligible to citizenship.</p>

This is au action by plainüü, T. B. Wallace, receiver of the Missouri National Bank, at Kansas City, Mo., to recover of the defendant the sum of $10,000. — the amount of an assessment made upon him, as a shareholder in said bank, by the comptroller of the currency. The defendant became the purchaser of said stock in April, 1890. On the 3d day of December, 1890, the bank was taken charge of by the comptroller of the currency, and plaintiff' was appointed receiver thereof.

<p>1. Judgments — Finality.</p> <p>A decree of foreclosure was rendered, a sale ordered and confirmed, and the purchaser was by formal order made a party to the suit, a-nd held obligated to pay its bid, etc. Held that, while the decree was final, it did not determine the cause, so as to prevent the purchaser from filing a supplemental bill for an injunction restraining others from bringing suit in a state court attacking the validity of the decree.</p> <p>3. Equity — Supplemental Bill.</p> <p>A supplemental bill by the purchaser is a proper proceeding to obtain a restraining order, where stockholders are attempting by proceedings in a state court to nullify a decree of the circuit court foreclosing a mortgage on corporate property.</p> <p>8. Same — Conolusiveness of Adjudication.</p> <p>A decree of foreclosure of a mortgage on a railroad company’s property is conclusive upon the creditors and stockholders of the company.</p> <p>4. Injunction — Power of Federal Court.</p> <p>A federal court, which has obtained jurisdiction may enjoin a party from prosecuting in a state court an action that will annul its judgment,. notwithstanding Rev. St. § 720, prohibiting enjoining proceedings of state courts.</p> <p>5. Corporations — Franchises.</p> <p>Under Code N. C. §§ 671, 673-675, a corporation can sell, mortgage, or transfer all its property and franchises, except its franchise of existence.</p> <p>6. Corporations — Acts Ultra Vires.</p> <p>That the purchaser of a North Carolina railroad at foreclosure sale is a Virginia corporation is not an objection that any private person can urge against the purchaser’s possession of the property.</p>

<p>1. Judgment Lien — Extension—Property in Hands of Receivers.</p> <p>The lien created by Code Civ. Proe. Cal. § 674, by filing a transcript of the judgment with the county recorder, is not continued beyond the statutory period of two years by the mere fact that during such period all the judgment debtor’s property is in the hands of receivers, under the control of courts having jurisdiction. And if, during this period, the judgment debtor does not ask permission of the court appointing the receiver to levy his execution, he loses his lien by his own neglect.</p> <p>2. Same — Extension by Agreement.</p> <p>The period for which a judgment lien exists by statute cannot be extended by consent or agreement.</p>

<p>This cause was heard on an application by plaintiff for leave to hie an amended petition and a motion to set aside an order relating thereto.</p>

<p>1. Parties — Substitution of Plaintiffs — Real Party in Interest.</p> <p>In an action commenced by a state treasurer to recover money deposited in a bank under a statute authorizing such deposits, tlie state, which is the real party in interest, may properly be substituted as plaintiff! by amendment, as such substitution makes no change in the cause of action.</p> <p>3. Pleading — Amendment of Petition — Change in Cause of Action.</p> <p>Where the original petition in an action against a bank to recover deposits alleged that plaintiff', as state treasurer, deposited certain certificates of deposit issued to his predecessor by defendant bank, and received credit in his account therefor, an amendment alleging that he received payment of the certificates and deposited the proceeds makes no change in the cause of action stated.</p>

<p>1. Process — Sufficiency of Service — Return.</p> <p>Under a rule of court requiring a summons to be served on a defendant by “giving him notice of its contents.” a return of service of a writ by “making known the contents” to the defendant is sufficient.</p> <p>3. Same — Impeaching Return.</p> <p>Following the rule of the state courts, a federal court in Pennsylvania will not receive extrinsic evidence to impeach the return of a marshal which is good on its face, in support of a motion to set it aside.</p>

<p>This was a bill in equity by one Hirsch, a nonresident creditor of defendant Prescott, in behalf of himself and other creditors, to enforce the proper execution of a deed of trust made by Prescott. This deed provided for the sale of the property conveyed by it, and contained a clause requiring that, out of the proceeds, there should be reserved the homestead of $2,060, wMch is secured by the Virginia constitution and laws to householders and heads of families. The remainder of the fund was then to be distributed to creditors in a prescribed manner. The bill sought, among other things, to subject to the claims of creditors a reversion in this $2,000 after expiration of the rights of the homestead beneficiaries; and for that purpose prayed that the fund be invested, the income paid to said beneficiaries, and the principal secured to H¡e creditors whenever the use should terminate. The Virginia constiiution provides as follows:</p> <p>“Every householder or head of a family shall be entitled in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, gnmisheeing, or sale under any execution, order, or other process, issued on any demand for any debt heretofore or hereafter contracted, his real and personal property, or either, including money and debts due him, whether heretofore or hereafter acquired or contracted, to the value of not exceeding $2,000, to be selected by him,” etc. Article 11, § 1.</p> <p>In section 5, art. 11, the constitution directs that:</p> <p>“The general assembly shall, at its first session under this constitution, prescribe in w hat, manner and on wliat conditions the said householder or head of a family shall hereafter set apart and hold for himself and family, a homestead out of any property hereby exempted, and may, in its discretion, determine in wh.it manner and on what condition he may thereafter hold, for the benefit of himself and family, such personal property as ho may have, and coming within the exemption hereby made. But this section shall not bo construed as authorizing the general assembly to defeat or impair the benefits intended io 1)0 conferred by the provisions of this article.”</p> <p>In Code 1878, c. 183, § 8, the legislature enacted as follows:</p> <p>“The homestead provided in this act shall continue after his death, for the bonefsr of the widow and children of the deceased until her death or marriage, and alter her death or marriage, for the exclusive benefit of his minor children, until the youngest child become 21 years of ago; after which period it. shall pass, according to llie law of descents, as oilier real estate, or as may be devised by said householder, not being subject to dower, yet subject to all the debts of the said householder or head of the family.”</p>

This writ of error is sued out to review the action of the court below in sustaining a demurrer to tbe amended complaint filed in tbe case. The assignments of error raise the question whether the amended complaint states facts sufficient to constitute a cause of action. The complaint, as amended, alleges: That the defendant is a corporation organized under the laws of California, and doing business in Pierce county, Wash.

<p>Master and Servant — Incompetent Fellow Servant — Assumed Bisk.</p> <p>Where a seaman, who has made several voyages with a mate whom he knows to be addicted to intemperance, at times incapacitating him for his duties, undertakes a new voyage, and, as the ship is leaving the wharf, is injured by a negligent order of the mate, induced by the latter’s intoxication, which the seaman has not reported to the master, but has attempted to conceal from him, such seaman cannot recover against the ship for such injury.</p>

<p>Principal and Agent — Bight op Principal agatnst Third Person.</p> <p>A principal who authorizes his broker to sell stock for him at a certain piice cannot hold a purchaser to whom such broker has sold at a less price, since the principal is not bound by the sale.</p>

<p>1. Comprmoise by Attorney — Evidence of Authority.</p> <p>On an issue as to whether plaintiff had authorized his attorney to make a certain compromise of notes which he held for collection, the attorney testified that in June plaintiff had authorized him to make the compromise. Plaintiff denied this, and introduced letters written hy the attorney after the alleged grant of authority, asking for instructions as to such compromise. In other letters written after the compromise the attorney justified the compromise on the ground that he had written to plaintiff beforehand, telling him that he would make it unless instructed to the contrary.Plaintiff denied receiving such letter, and letters in evidence, written just-before the compromise, contained no such statements. An attorney for the maker of the note, who left the town more than a month after the alleged authority, testified that just before leaving he had refused to make the compromise because plaintiff’s attorney did not have the originals of the notes, and produced no authority for making such a compromise. BeM,, that there was sufficient evidence to sustain a finding that there was no authority for the compromise.</p> <p>2. Promissory Note — Compromise—Consideration.</p> <p>The maker of a note, who was foreclosing a mortgage on property on which there was another prior lien, deposited in court the amount of such lien, to be used in satisfaction thereof. The attorney for the payee of the note, who was also attorney for the holder of the first lien, made an agreement with the maker of the note that the amount applied in satisfaction of the lien should be credited on the note. Held, that-such agreement was without consideration, and not binding on the payee of the note.</p> <p>3. Compromise — Ratification.</p> <p>And the fact that the payee wrote to the attorney asking- him why, if he had made a collection on the note, he did not pay it over, did not amount to a ratification of the agreement. ■</p> <p>4. Payment — Sufficiency of Evidence.</p> <p>On an issue as to whether a balance on a note had been paid, an attorney who claimed to represent the payee testified that at the time of the first payment an agreement was made whereby a certificate of deposit for considerably more than the balance was turned over to him by the maker’s attorneys, to be used in payment of the note as soon as the original should be forwarded to him, and that he put the certificate in his safe, where it has been ever since. The certificate, however, was of a date more than a month later than the alleged agreement. The firm of attorneys for the maker afterwards dissolved, and payee’s attorney .formed a partnership with one of them. The certificate of deposit was afterwards sent to the other one, who still -represented -the maker, and by him cashed. The maker’s testimony did not show that he had not received the proceeds of the certificate. Releí, that the evidence failed to establish the issue.</p> <p>5. Courts — Conflicting Jurisdiction.</p> <p>An action in personam in the courts of a state cannot be pleaded in abatement in another action in a federal court in another state, although there is an identity of parties, subject-matter, and relief sought.</p>

<p>1. Contracts os' Indemnity— Joint Liability of Indemnitor and Indemnitee.</p> <p>Civ. Codo Cal. § 2777, which declares that one who indemnifies another “against an act to be done by the latter is liable jointly with the person indemnified, and separately to every person injured by such acl,” is not limited to cases where the indemnitee binds himself, or is bound by law, to do some act which may result in damage to another, or to cases in which the indemnitor is held to be a joint trespasser or tort feasor with the indemnitee; but it includes all cases of indemnity against future contingencies. It therefore makes a policy of Insurance against liability for personal injuries of employes inure directly to the benefit of an employe injured, and allows him to sue his employer and the insurance company jointly, if he so elects.</p> <p>2. Parties in Equity — Keceivers in Sufflementaby Proceedings.</p> <p>A receiver in supplementary proceedings of an insolvent corporation, who has in his possession a policy insuring the corporation against liability to its employes for personal injuries, is a necessary party to an action brought by an injured employe against, the corporation and the insurance company jointly, to enforce their joint and several liability to him.</p> <p>3. Bemoval of Causes — Joint and Several Liability of 'Defendants.</p> <p>Where defendants’ liability is joint as well as several, and plaintiff elects to sue them jointly, this determines the character of the suit; and neither defendant can treat it as several against him, so as to authorize him to remove it.</p>

This was an action at law by T. O. Cronin against the county of Patrick, Va., to recover interest on two county bonds constituting part of an issue made by the county in payment of a subscription to the capital stock of the Norfolk & Great Western Railroad Company. There was a plea of non est l'actum, and a special plea setting up fraud and covin, and that plaintiff was not a bona fide holder.

<p>1. Habeas Corpus — Office of Writ — Prisoner Held under Removal Warrant.</p> <p>On a writ of habeas cofpus in behalf of one held under a warrant for removal to another district for trial, the court can only consider questions going to the authority and jurisdiction of the district judge to issue th'e warrant of removal. If there was a proper case for removal, the prisoner should be remanded, notwithstanding irregularities or errors of procedure in his arrest, examination, or commitment.</p> <p>2. Criminal Law — Removal-of Prisoner to Another District for Trial.</p> <p>The issuing of a warrant by a district judge, under Rev. St. § 1014, for the removal of a prisoner to'another district for trial, is not a mere ministerial act, but one involving the exercise of judicial discretion. While the action of the committing magistrate is prima facie sufficient basis for the warrant, the judge may, if he deem best, hear further evidence on behalf of the prisoner, and also to prove his probable guilt and the pendency of an indictment against him in such other district.</p> <p>S. Same.</p> <p>That the warrant of removal directs the prisoner to be delivered for trial for the larceny of a part only of the property which he was committed by the commissioner for stealing does not vitiate the warrant.</p> <p>4. Same.</p> <p>The fa.ct that the indictments found in the district to which the prisoner is sought to be removed do not sufficiently or correctly, as to matters of form, allege tbe offense, does not make the warrant of removal unwarranted, or even erroneous; for these questions may properly be left to the disposition of the court by -which the offender is to be tried. o</p>

Tliis was a suit in equity by the Excelsior Heater Company against the Bates Machine Company and Thomas J. Cookson, for alleged infringement of a patent for improvements in feed-water heaters.

<p>Motion to Punish for Contempt for Violating Injunction.</p>

<p>Patents — Suit for Infringement — Preliminary Injunction.</p> <p>In a suit against a railroad company for infringement of a patent for a combination in a railway switch, apparently of old parts, which patent expires within two months, where defendant has in use 1,100 of the alleged infringing devices, distributed over 2,000 miles of track, an injunction pendente lite will not be granted.</p>

<p>Seamen — Libel eob Wages — Evidence.</p> <p>Where the employment of libelants by the owner of a vessel, as testified to by them, is inherently improbable, and the appearance and demeanor of the libelants’ witnesses prevent belief in their testimony, a libel for alleged wages will not be sustained.</p>

This was a prize proceeding, instituted in behalf of the United States against the British steamship Newfoundland for an alleged attempt to violate the blockade.

<p>1. Prize — Procedure—Evidence in Preparatorio.</p> <p>On tlio first hearing in prize proceedings only the evidence in preparatorio is admissible, which evidence is confined to- the depositions of officers, crew, and passengers of the captive ship, and the papers and documents found aboard. ;</p> <p>3. Same — Violation of Blockade.</p> <p>Sailing for a blockaded port with knowledge of the blockade is a breach thereof, and subjects the ship to condemnation.</p> <p>8. Same — Knowledge of Blockade — Presumption.</p> <p>It being lawful for neutrals to trade with the enemy, and a blockade not being a necessary consequence of a state of war, it is not to be assumed that a neutral possesses any knowledge of its existence until the fact of its establishment is in some way brought home to him.</p> <p>4. Same — Kotice of Blockade.</p> <p>While the French and other continental jurists hold that there must be notice from the government instituting the blockade, and also notice from a vessel at or near the blockaded port, that the blockade has in fact been established, the rule accepted in England and the United States is that notification at (he port of blockade should only be required when there has not been sufficient time for neutral ships at sea or in distant ports to become aware of its existence.</p> <p>5. Same — Vessel at Sea.</p> <p>A vessel at sea when a proclamation of blockade of one of her ports of destination is issued has the right to proceed upon her voyage until arrival at the blockaded port, unless notice of the blockade was actually received by her master, or unless facts were disclosed from which actual knowledge must be inferred.</p> <p>6. Same — Presumptions.</p> <p>The mere fact that a vessel in her regular route touches at a port where notice of the blockade might have been received by cable is not sufficient to raise a presumption of actual knowledge by her master, when there is no proof and no good reason to suppose that news of the blockade liad in fact been cabled to such port.</p> <p>7. Same — Adequacy of Blockade.</p> <p>A vessel which enters a port after a blockade has been proclaimed is not to be condemned, when there is no evidence of the presence of any adequate force to maintain the blockade until some time after her departure.</p> <p>8. Same — Additional Evidence.</p> <p>Although the evidence in preparatorio renders it highly improbable that the vessel was attempting to break the blockade, yet the court will permit the taking of additional evidence, on depositions from officers of the captor stating positively that she was attempting to enter the port at the time she was overhauled.</p>

<p>Removal op Causes — Amount in Controversy — How Shown.</p> <p>. To authorize a removal It must appear from the pleadings at the time of removal that the requisite sum is in controversy. Where such fact floes not appear from the declaration which is then the only pleading on file, it cannot be supplied by averments as to a set-off in the petition for removal, nor by pleadings filed after the removal is made.</p>

<p>1. Appearance — Filing Petition for Removal.</p> <p>Filing a petition for removal is not a general appearance, and does not preclude a motion to dismiss for want of service of process, or other .defect of jurisdiction.</p> <p>'2. Federal Courts — Jurisdiction Over Foreign Corporations.</p> <p>To give a federal court jurisdiction over a corporation of another state, three things are essential: .(1) It must appear that such corporation, as a matter of fact, is carrying on business in the district in which the court is sitting; (2) such business must be transacted by some agent or officer appointed by and representing the corporation in that district, or at least in the state; (3) the existence of some local law making- the foreign corporation generally amenable to suits in the state as a condition precedent to its doing business therein.</p> <p>■3. Appearance — Denial of Petition for Removal — Answering in State Court.</p> <p>Defendant, a foreign corporation, filed a petition and bond for the removal of the cause, which was ordered by the state court. Defendant thereafter caused a transcript to be filed in the federal court, which denied a motion to remand. On appeal the supreme court of the state reversed the order for removal, and defendant thereafter answered in the state court. Held, that the filing of such answer did not constitute an appearance and waiver of process affecting the case in the federal court, and was without prejudice to the right to move fdr dismissal in that court for want of proper service.</p>

<p>On demurrer to the bill.</p>

<p>On Motions to Remand.</p>

<p>This was a bill for the foreclosure of a mortgage.</p>

These are suits in equity for the cancellation of conveyances of mining property and an accounting for profits therefrom. Heard on preliminary applications for an injunction and the appointment of a receiver.

This action was brought by the receiver of the Oregon Railway & Navigation Company, to recover upon a policyof fire insurance issued by the plaintiff in error on December 30, 1893, to Messrs. S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, John W. Doáne, and Frederick R. Coudert, who were then the receivers of said railway company.

<p>Sur Motion for Preliminary Injunction.</p>

<p>1. Internal Revenue Act of 1898 — Constitutionality—Sales on Board of Trade.</p> <p>That provision of the internal revenue act of 1898 (Schedule A, par. 2), imposing a tax “upon each sale, agreement of sale, or agreement to sell, any products or merchandise at any exchange, or board of trade, or other similar place,” and requiring, upon the making of any such sale or agreement, the delivery by the seller to the buyer of a written bill or memorandum, to which shall be affixed stamps in value equal to the amount of the tax, while levying an excise tax, within the meaning of Const, art. 1, § 8, is not in violation of the requirement of such section that the tax shall be “uniform throughout the United States.” The tax, being limited to sales made at an exchange, board of trade, or similar place, is, in effect, a tax upon the privilege of selling at such places, graduated according to the use made of such privilege, and not upon either the document required, the product sold, or the occupation, aside from such privilege, and is hence uniform.</p> <p>2. Same — Method of Collection.</p> <p>The method provided for the collection of such tax, by requiring the delivery by the seller of a stamped memorandum of the sale or contract, is not unconstitutional, or beyond the powers of congress, as rendering unlawful an oral contract recognized as valid by the laws of the state; the failure to make or stamp the memorandum, which has no other function than to identify the exercise of the privilege taxed and to receive the stamp, being punishable by fine or imprisonment, and there being no provision that such failure shall in any way affect the validity of the contract. Nor is such method invalid because no action for the collection of the tax is provided for.</p>

<p>Army — Enlistment of Minor — Right to Discharge.</p> <p>Rev. St. § 1117, requiring the consent of the parents or guardian of a minor to his enlistment in -the military service of the United States, “provided, that such minor has such parents or guardian entitled to his custody and control,” does not authorize a court to discharge from the service a minor whose parents are nonresident aliens, and who at the time of enlistment had no guardian, on the application of a guardian since appointed.</p>

<p>1. Public Lands — Quants tor Public Improvements — Conclusivknkss ok Decision ok Land Department.</p> <p>Whether lauds aro within the limits or subject to the operation of a grant for public improvements is not a question of fact, within the rule that the judgment of the land department is final upon questions of fact.</p> <p>2. Same— Effect op Issuance op Patent.</p> <p>The land department cannot enlarge the limits of a grant of lands by congress, and its action in issuing patents thereunder for lands lying outside the boundary fixed by the act itself is without validity to convey title, and will be canceled at suit of the government.</p> <p>3. Same — Lands Deserved from Grant — Homestead Settler.</p> <p>Unsurveyed land lying within the boundaries of a grant reserving from its operation all lands to which homestead or pre-emption rights had attached, which at the date of the grant was occupied by a homestead settler, who took timely action after its survey to acquire title, was not subject lo the grant, and its certification thereunder by the land department conveyed no title.</p>

This was an application for a writ of habeas corpus on behalf of Gin Fung, alleged to have been unlawfully restrained by order of the collector of Portland as a Chinese laborer unlawfully in the United States.

The defendants, who were indicted for dumping at a place other than one of those prescribed in the permit issued by the supervisor of the harbor, demurred to the indictment upon grounds discussed in the opinion.

This was an action at law by Josephine Withers against the Supreme Lodge of Knights of Pythias to enforce collection of a policy of insurance on the life of her husband, B. W. Withers. In the cir- ■ cuit court the case was submitted on an agreed statement of facts, and judgment was entered for plaintiff, to review which this writ of error was sued out by defendant.

<p>Opinion on Motion to Dissolve Attachment.</p>

<p>1. Contracts — Place of Execution — Undertaking on Appeal.</p> <p>An undertaking on appeal, given to stay proceedings pending the appeal is not delivered so as' to become effective until filed, and hence, though signed in another state, is “executed” in the state where filed.</p> <p>3.- Limitation of Actions — California Statute.</p> <p>An undertaking given on appeal from a judgment of a court of New York, though signed in California, is “an instrument of writing executed out of the state,” within the provision of Cal. Code Civ. Proc. § 339, prescribing the limitation of actions on such instruments.</p> <p>8. Same — Appeal Undertaking — Effect of Further Appeal.</p> <p>The running of the statute against an action on an appeal undertaking given on appeal to the general term of the superior court of the city of New York is not affected by the taking of a further appeal from the judgment of the general term to the court of appeals.</p>

<p>1. Contract — Consideration—Want of Mutuality.</p> <p>A contract by which one party agrees to order from the other all ol certain machines and extras required to supply the trade of a certain territory, which the second party agrees to furnish “without any liability for damages for failure from any cause to furnish such machines and extras,” creates no obligation on the part of the second party, and is without mutuality.</p> <p>2. Same — Part Performance of Voidable Contract’.</p> <p>V here a contract, voidable for want of mutuality because by its terms it does not bind one of the parties, is performed by sucli party on demand made by tbe other, it becomes obligatory.</p> <p>This is a,n action for breach of contract, and was heard on a motion to strike out parts of the complaint.</p>

<p>1. Bills and Notes — What Law Governs — Place of Contract.</p> <p>Tiie instrument sued on is a negotiable promissory note, and, Raving been made in Colorado, is to be governed by tbe statute of Colorado, instead of tbe general principles of tbe law merchant.</p> <p>2. Same — Purchaser from Bona Eide Holder.</p> <p>The plaintiff, having received the paper from a bona fide holder, ac(Xuired a good title thereto.</p> <p>3. Same — Negotiability—Form op Note.</p> <p>The fact that the note does not contain the words “to order,” or “to bearer” does not affect its negotiability.</p> <p>4 Sale — Rescission—Failure to Exercise Option.</p> <p>Tlie defendant, Inning reserved time in which to determine whether he would keep llie stock purchased and pay the money, or return the stock and thus discharge the note, by failing to return the stock within the time reserved must be held to have elected to keep the stock and to pay tlie money.</p> <p>5. Same — Fraud—Laches.</p> <p>The rule is well settled that a party must elect, as soon as he discovers that a fraud has been practiced upon him in the making' of a contract, whether he will abide by the contract or not.</p> <p>6. Same — Fraudulent Representations.</p> <p>Statements and representations as to the value of inventions, and as to what could be done with them in the future, are insufficient upon which to predicate fraud.</p>

<p>1. Corporations — Purposes of Incorporation — Construction of Statute.</p> <p>In the general incorporation statutes of Oregon, which authorize the formation of corporations “for the purpose of engaging in any lawful enterprise, business, pursuit or occupation,” the words “business” and “pursuit” are not restricted in meaning to schemes for making- money, but include any object consistent with the interests of society that may engage the attention of men and invite their co-operation; and a corporation may lawfully be organized under such statute for the purpose of guarantying the bonds of an educational Institution, to strengthen its credit.</p> <p>3. Same — Powmes—Estoppel of Stockholdeks to Deny.</p> <p>Stockholders in a corporation which was formed for the purpose of becoming guarantor of certain bonds and obligations of a third party, and which assumed to become such guarantor, are estopped, ^s against purchasers of such bonds, to deny the power of the corporation' to incur obligations in that manner.</p> <p>3. Same — Assessments on Stookuoldeks — Powebs op Receive®.</p> <p>The powers of the board of directors of a corporation to make assessments against the stockholders upon tlieir subscriptions pass to a receiver, who may act when the board fails or refuses to do so.</p>

<p>This was a hearing on a plea setting up matter in abatement.</p>

This was a suit in equity to have set aside as illegal the action of a city council in fixing- the price to he charged for gas by complainant, in accordance with the terms of an ordinance.

Proceeding by the Postal Telegraph Cable Company to condemn right of way for its line over the right of way of the Southern Railway Company.

Tills was an application to review a decision of tlie board of general appraisers aiilnuuig a decision of the collector of the port of Yew York (classifying certain merchandise for duties as “laces,” under paragraph 325 of the act of 1833) except in so far as related to the items invoiced as “tidies” and “shams,” which the board found to be manufactures of cotton not otherwise provided for, under paragraph 321.

This was a suit in equity by Frank M. Talbot and Evert M. Thompson against James H. Fear, Oliver P. Campbell, and Henry H. Thomas, for alleged infringement of a patent. In the circuit court the bill was dismissed after a hearing on the merits, and the complainants have appealed.

<p>1. Patents for Invention — -Patentability—Sulkies.</p> <p>Letters patent No. 498,Í13, issued March 21, 1893, for an Improvement in sulkies, consisting in reducing the size of the wheels and equipping them with rubber tires, are void for want of invention.</p> <p>2. Same — Anticipation.</p> <p>Letters patent No. 498,709, issued May 20, 1893, for an Improvement In sulkies, consisting in providing the seat and body of a large-wheel sulky with the wheels of a small-wheel sulky, are void for anticipation.</p>

<p>Patents — Infringement—Controlling Switch for Electric Motors.</p> <p>The Conflict patent, No. 393,323, for a controlling switch for electric motors, is infringed by a device which only differs from that described in that, when a change is made from series to multiple, instead of the resistance being cut in “at the time of changing the connections,” and cut out “as soon as the new connection is made,” it is cut in at the latter time and cut out subsequently.</p>

<p>Patents — -Infringement— Controlling Switch for Electric Motors.</p> <p>Tlio Conflict patent, No. 393,323, for a controlling switch for electric motors, is infringed by a. controller winch uses the same device for regulating the current, by means of cutting in resistances, though a different method is used to prevent sparking.</p>

Sur Objection by Defendant to tbe Form of Proposed Decree. The decree is for infringement of letters patent No. 333,373, to Carl G. tVittensfrom, for improvements in the process of manufacturing castings from wrought iron and steel, by adding aluminum.

This was a libel of forfeiture filed by tbe United States against the steamer Three Friends for alleged violation of the neutrality laws. The cause was heard in the district court on a motion by the claimants for permission to give a release bond, and on exceptions to the libel. 78 Fed. 173, 175.

<p>On Motion to Bemand.</p>

<p>Homestead — Evidence oe Abandonment.</p> <p>Tlu> owner of a homes!end left it on account of ill health, and l'or 13 years before his death traveled and resided in a number of different places, leasing the hotel on the homestead property, but reserving a room therein for the use of himself and Ills wife, to which he frequently returned, and in which he kept, his own furniture. He never purchased a homo elsewhere, nor engaged in any permanent business. The only direct evidence of abandonment was a casual statement, made at one time, that he was then making his home at a different place; but a number of staiemenis that lie considered the hotel as his home were shown. lúliJ, that the evidence was insufficient to show an abandonment.</p>

<p>1. Mortgage Foreclosure — Mortgagee as Purchaser under Erroneous Decree — Accounting.</p> <p>A mortgage creditor in possession as a purchaser in good faith under an erroneous decree of foreclosure, afterwards reversed, is chargeable on restitution with only the profits actually earned by the property, unless guilty of willful default in management, by reason of which the earnings were less than they would have been under ordinarily careful and prudent management.</p> <p>2. Same — Insurance Premiums.</p> <p>In such accounting, where the mortgagor has been held entitled to restitution, the purchaser stands in the position of a mortgagee in possession, and where he has kept the property insured, though in his own name, should be credited with the premiums paid for such insurance, which in case of loss would have inured to the benefit of the mortgagor.</p> <p>3. Equity Practice — Hearing before Master — Evidence.</p> <p>The use of books of account by a master, after they had been impeached as books of original entry and excluded as evidence, the entries, however, not having been shown to be incorrect or fraudulently made, as data for finding other evidence, and the consideration, in stating the account, of such entries as were corroborated by other evidence, was not error which invalidated his findings.</p> <p>4. Mortgages — Mortgagee in Possession — Rents and Profits.</p> <p>A mortgagee lawfully in possession of the mortgaged property, though as purchaser under an erroneous decree of foreclosure afterwards reversed, while accountable for the rents and profits during the time of such possession, has also ilie right to apply the same on the mortgage debt as against the mortgagor or any purchaser from him of the equity of redemption; and when' títere luis been a resale of the property, and he hits obtained a deficiency judgment against the mortgagor before the accounting is had, he may have such judgment set oil against the amount found due from him.</p> <p>5. Same — Score of Accounting.</p> <p>"Where a purchaser of a cotton mill at a foreclosure sale, afterwards set aside, was placed in possession by the court, and during such possession used certain material found in the mill not covered by the mortgage, on restitution of the properry and an accounting for rents and profits the court has jurisdiction to also require an accounting for such material.</p> <p>8. Equity Practice — Statement of Account by Master — Interest.</p> <p>Where a master has stilted an account, allowing interest on some items, and not on others, and the report is confirmed without exception on that ground, the amount stated will be regarded as Including the Interest at the time of the report.</p>

Bill to Foreclose Mortgage. The report of the special master in this case is as follows: To the Honorable the Judges of the Circuit Court of the United States for the Northern District of Georgia: I herewith submit my report upon the facts and law of the above-stated case: Margaret H. Crawford filed a petition to the superior court of Fulton county, on January 12, 1895, alleging, in substance, that Margaret C. Inman was about to foreclose a'mortgage upon certain property,…

<p>Upon Exceptions to Report of Master as to Intervening Petition of Levi P. Doud.</p>

<p>On Motion to Remand.</p>

This is a suit in equity to enjoin the enforcement of an ordinance of the city of Atlanta relating to the sale of liquor.

This was one of a number of suits brought by W. K. Sullivan, as receiver of the American Building, Loan & Investment Society, to enforce securities executed to such society.

Suit by Nathaniel H. Ricker, Francis L. Lee, and Joseph A. Owens, co-partners and contractors as Ricker, Lee & Co., against the Sanitary District of Chicago, to cancel a certain contract and bond. The contract was for the construction by Ricker, Lee & Co. of a part of tbe drainage channel in course of construction by the sanitary district, and the bond was given by said firm conditioned for the due execution of the contract.

<p>1. Pleading — Amendment—Discretion of Court.</p> <p>Leave to file an amended complaint will not be granted after a case has been long at issue, and testimony has been taken, where it is clear that the proposed amendments present matter which is immaterial, and cannot aid the plaintiff.</p> <p>2. Custom and Usage — Creating Contract.</p> <p>In an action to recover money alleged to have been expended by plaintiff for and on behalf of defendants, at their instance and request, in relation to certain bonds owned by defendants, an amended complaint alleging that plaintiff was a dealer in bonds in London, and that it was the custom and usage among all there engaged in that business to look after and protect the interests of customers purchasing bonds from them, and to expend money, when necessary, in that behalf, which money was refunded by the customers, does not state any matter which aids plaintiff’s case, as no contract with defendants to so expend money in their behalf is alleged, and a contract liability cannot be based on usage alone.</p> <p>3. Same — Effect and Validity.</p> <p>A usage authorizing a dealer in bonds or securities, after an absolute sale and delivery to a customer, to retain .a right to represent snch customer, and to expend money for him in relation to such securities, without an express contract thereto, would be unreasonable and unlawful, as in contravention of the right of dominion of the purchaser over his own property.</p>

<p>' 1. Equity — Jurisdiction of Federal Court — Adequate Remedy at Law.</p> <p>A federal court is not deprived of jurisdiction to grant equitable relief on the ground of the existence of an adequate remedy at law because there may be a remedy under a state statute. To bar a complainant of his right to relief in equity, he must have an equally efficient remedy at law enforceable in the same court.</p> <p>2. Same — Trust Fund — Tax Collected for Special Purpose.</p> <p>Where a tax expressly authorized by a valid statute for the payment of interest on county bonds has been levied and collected, the fund so created is dedicated to a special purpose, or impressed with a trust, the enforcement of which is a proper subject of equity jurisdiction; and, upon a, refusal of the county authorities to apply the fund to the purpose for which It was raised, the holders of the bonds are entitled to an injunct ion to prevent: its appropriation to other purposes pending a determination of their rights therein.</p> <p>3. Rus Judicata — Validity of County Bonds — Judgment in Suit between County Officers.</p> <p>A judgment holding that bonds issued by a county are void, rendered in a suit brought by the county commissioners against the county treasurer to restrain him from paying the interest on such bonds, is not an adjudication binding upon the bondholders, who were not parties nor represented in the suit.</p> <p>4. Federal Courts — Following State Decisions — Validity of Municipal Bonds.</p> <p>The rule that a federal court is bound by the decision of the court of last resort of a state holding a state statute void because not constitutionally enacted does not apply as to a statute authorizing the issuance of municipal bonds, in an action by a holder of such bonds who purchased before the decision was made, nor when at the date of such purchase the decisions of the stale court sustained the validity of the bonds.</p> <p>5. Same — Effect of Prior Decisions of State Court.</p> <p>Where the decisions of the court of last resort of a state, up to the time when bonds of a county were issued and sold in the market, all tended to establish the doctrine that a state statute which had received the signature of the presiding officers of the two houses of the legislature was conclusively presumed to have been legally enacted, and could not be collaterally impeached in that regard, a federal court, in a suit involving the rights of a purchaser of such bonds, is not bound by a state decision, subsequently rendered, holding the statute under which the bonds were issued void as not having been constitutionally enacted, which decision was based upon the evidence of the legislative journals, received to impeach the statute, though it was duly attested by the signal tires of the presiding officers.</p> <p>6. Statute — Validity of Enactment — Constitutional Provisions.</p> <p>Under the requirement of Const N. C. art. 2, § 14, that no law shall be passed allowing a municipality io impose any tax upon the people, unless the yeas and nays on the second and third readings of the bill for that purpose shall be recorded on the journal of each house, to sustain the power of a county to issue bonds and levy a tax for their payment it must be affirmatively shown that the legislative journals contain the record of the yeas and nays on the passage of the bill authorizing such action: and the journals are, by virtue of the constitutional provision itself, the evidence of such fact.</p> <p>7. Railroads — Subscription of Stock by County — Construction of Statute</p> <p>Code N. G. § 1996, provides that -‘the boards of commissioners of the-several counties shall have power to subscribe stock to any railroad company or companies when necessary to aid in the completion of any railroad in which the citizens of the county may have an interest.” The following sections prescribe the mode of making the subscription, taking a vote, and levying the tax. Held, that the words, “when necessary to the completion of any railroad,” do not limit the power of a county- to make a subscription to' such roads as were partially completed at the time the Oode was enacted, nor does the section require the citizens to have a direct pecuniary interest in the road, but a public interest, such as is created by the building of a railroad into the county, and the fixing of one of the termini therein, is sufficient to fulfill the condition and authorize a subscription to its stock by the county, and the issuance of bonds and levying of taxes to carry out the same.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>In the month of .Tune, 1890, the following correspondence passed between Mr. Dye, counsel for the appellee railway company, and Mr. Theodore P. Haughey, then president, of the Indianapolis National Bank:</p> <p>“Indianapolis, Ind., Tune 24, 1890.</p> <p>“T. P. Haughey, Prest. Indianapolis Nat Bank, City — Dear Sir: If the local deposits of the C., C., C. & St. D. Ry. Co. are transferred to your bank, will you arrange to furnish surety from time to time upon such appeal and other bonds as may he required by the company, the company undertaking to protect you from loss or harm by reason of the execution of such bonds ?</p> <p>“Very truly, Tohn T. Dye, G. Cl.”</p> <p>“With the above understanding, I will agree to 'furnish bonds.</p> <p>“Tune 24, 1890. Theo. P. Haughey.”</p> <p>The local deposits of the appellee were thereupon made in the Indianapolis National Bank. What bonds were furnished by Mr. Haughey within the scope of the foregoing agreement, apart from what follows in this statement, does not appear and is perhaps immaterial. On the 8th of March, 1892, appellee railway company had on deposit to its credit in the Indianapolis National Bank something over $50,000. On the 7th of March, 1892, the treasurer-of the railway company made and subscribed the following document:</p> <p>“The Cleveland, Cincinnati, Chicago & St. Louis Railway Go.</p> <p>“$18,000.00. No. A 2,339.</p> <p>“$18,000.00. .</p> <p>“Cleveland, O., March 7, 1892.</p> <p>“Pay to the order of Indianapolis Nat’l Bank, Indianapolis, Ind., eighteen thousand and no hundredths dollars. G. S. Russell, Treasurer.</p> <p>“To IndianapoliS National Bank, Indianapolis, Ind.”</p> <p>This check was delivered by an agent of appellee on the 8th of March, 1892, to Mr. Haughey at his room or desk in the banking house of the bank. Said agent thereupon, and as part of the transaction, wrote or filled out on a blank the following instrument, which Haughey subscribed as shown, and at once returned or delivered to said agent:</p> <p>“Indianapolis, March 8, 1892.</p> <p>“The G, C., O. & St. L. Ry. Go. has this day made a special deposit of eighteen thousand dollars in the Indianapolis National Bank in the name of T. P. Haughey, trustee, to secure him as surety on a bond given under an order of the ü. S. circuit court for the payment of C., W. & M. It. It. Oo bonds of the issue of 1871, numbered 441), 80(5 to 870, inclusive, 902, í,4(¡o’ 1,402 to 1,471, inclusive, according to the terms of said order; in all, lg’bonds’</p> <p>“The Indianapolis National Bank,</p> <p>“By Theo. P. Haughey, President.”</p> <p>Haughey then filled out and delivered to the bank, together with the check (but whether this was done in the presence and with the knowledge of said agent does not clearly appear), a deposit ticket, and the hank thereupon charged the $18,000 in the account of appellee, and credited that sum to Haughey, trustee, in a new account then opened with the latter. The deposit slip was as follows:</p> <p>“The Indianapolis National Bank.</p> <p>“Deposited by Theodore P. Haughey, Trustee, March 8, 1892.</p> <p>Dollars. Cents.</p> <p>Currency ............................................... . .</p> <p>Gold .....................................................</p> <p>Silver ................................................... .</p> <p>Checks on .............................................. 18,000 00”</p> <p>On the 11th of March, 1892, the appellee railway company filed its bill against Barnard and Wells in the circuit court of the United States for the district of Indiana. The showing of the bill was, in brief, that the Cincinnati, Wabash & Michigan Railroad Company had mortgaged a line of railroad belonging to that company in Indiana to Wade and Stone, trustees, to secure 2,000 $1,000 bonds. By a series'of transactions not material to be detailed on the questions involved in this appeal, Barnard and Wells became substituted as trustees for "Wade and Stone; appellee succeeded to a proprietorship over said line of railroad; bondholders having 1,982 of said bonds surrendered the same in exchange for other securities; and 18 of the bonds were still outstanding in the hands of unknown owners. The purpose of appellee’s bill was to have the mortgage canceled and satisfied of record upon its “giving security for the payment to the holders of said eighteen missing bonds, when they shall be produced to the clerk of the United States circuit court, of the sums to which they are legally entitled under said mortgage.” Afterwards, and on the 7th of November, 1893, the appellee filed its supplemental bill, setting forth that the Indianapolis National Bank was a banking corporation organized under the national banking laws of the United States; that said bank had become insolvent, and that Hawkins had been duly appointed its receiver; that he had qualified and was acting in that capacity; also that, pursuant to appellee’s original bill, an interlocutory decree had been made finding that 1,9S2 of the bonds had been surrendered, and that 18 remained outstanding in the hands of unknown owners, and directing that Barnard and Wells cause the said 1,982 bonds to be canceled “upon the execution of a bond, to be approved by this court, for the payment to the holders of the eighteen missing bonds above described, of the sums to which they shall be entitled under said mortgage of record,” — said decree containing also the further recital; “Thereupon the complainant herein submits to the court its bond and obligation providing for the payment to the holders of said eighteen bonds above numbered and specified, when they shall be produced to the clerk of the United States circuit court, of the sums which said holders shall be legally entitled to receive under said mortgage from the proceeds of said mortgaged property as their pro rata share of the proceeds thereof, which bond is executed by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, with T. P. Haughey of Indianapolis as surety, and produces to the clerk the certificate of the Indianapolis National Bank showing that it has made a deposit in said bank to the credit of said Haughey as trustee for the sum of $18,000 to secure him as such surety, which bond and surety is now approved by the court; and the said trustees, J. Alfred Barnard and Arthur G. Wells, are ordered and directed to satisfy of record the mortgage hereinabove described upon the surrender and cancellation of the 1,982 bonds hold by the Cincinnati, Wabash & Michigan Railway Company.” 79 Fed. 29.</p> <p>The supplemental bill goes on to aver that Haughey was the security on the bond mentioned in the order. Then follows an averment of the transaction which the check, already recited above, and the certificate, were put in evidence to prove. The theory of the supplemental bill is that the bank became trustee of the $18,000; that it converted said trust fund by mingling it with its own property; and that the assets of the bank, as the same went into the hands of the receiver, were chargeable with the trust to pay said $18,000 in full. It isp averred that the receiver had in his hands “sufiieient funds wherewith to pay the said special deposit of $18,000”; that the receiver disavowed said trust, and claimed that appellee and any other person interested in said fund of $18,000 were mere creditors; that Haughey was wholly insolvent; and that appellee was ready, able, and willing to execute a new bond, with sufficient security, in accordance with the original decree. The prayer was that the hank he decreed a trustee of the $18,090; that appellee he decreed owner of such money, “subject only to the rights of persons numed'’ in the original order; that appellee be permitted to give a new bond if the court deemed such bond necessary; that the receiver be enjoined from treating the $18,000 as a general deposit or part of the general assets for the creditors; that he be required to pay the whole of it to appellee, etc.</p> <p>The bank, the receiver Hawkins, and Haughey were specially named as deíendams ¡o ihe supplemental bill. Barnard and Wells were apparently treated as defendants. They and Haughey were defaulted. The receiver answered for himself and for the bank, and appellee put in a replication. In addition to the matters already indicated, it appeared that when the receiver took possession the trustee account for the $18,000 showed on the face of it a credit balance of §9,000, the remaining $9,000 having been withdrawn by the cheeks of T. P. Haughey, trustee. The court decreed that §9,000 be paid to appellee as a preferred claim, and that the remaining $9,000 be allowed as an unpreferred claim “pari passu with” the claims of “the general creditors.” or that ihe receiver certify the same to the comptroller of the currency of die I'nitcd diales io be paid in due course of administration. From this decree the receiver apxieals to this court.</p>

This is a suit in equity by the Consolidated Water Company, as a holder of the bonds of the San Diego Water Company, against the city of San Diego and others, to have declared unconstitutional and void an ordinance of the defendant city fixing the rates to be charged by the San Diego Water Company. Heard on demurrer to the bill.

This is a suit in equity by the San Diego Land & Town Company, as the owner of an irrigation system, for the amendment of rates of •charges to its consumers, fixed by the board of supervisors. of San Diego county. Heard on exceptions ánd demurrer to the bill. Works, Works & Ingle and Works & Lee, for complainant.

<p>This was an action by plaintiff, as receiver, to enforce defendant’s statutory liability as a stockholder of a Minnesota corporation.</p>

<p>On petition for rehearing. Overruled.</p>

<p>1. Building and Associations — Stockholders—Withdrawal.</p> <p>A stockholder who exercises tlie right to withdraw can only do so In accordance with the terms of the by-laws.</p> <p>2. Same — Notice of Withdrawal.</p> <p>Where 00 days’ notice of withdrawal is required by the by-laws, the stockholder remains a member of the corporation, sharing its iirofits or losses, until the expiration of that time, when his rights as a creditor become fixed, in so far that his demand is liquidated, and is payable in the mode and at the time prescribed in the by-laws.</p> <p>3. Same — Withdrawal Value of Shares.</p> <p>The by-laws of an association fixed the withdrawal value of shares at the amount paid in and the profits as shown by the last preceding apportionment of profits, which apportionments were required to be made each six months. A shareholder gave the required notice of withdrawal at a time when an apportionment of profits was due, but had not been made owing to the illness of the secretary. Held, that the withdrawal value of liis stock was determined by such apportionment when made, and not by the one preceding, but that the amount did not become due and payable so as to draw interest until there was a sufficient amount to pay it in its proper order in the fund applicable to its payment, under the by-laws.</p>

<p>Wateh Rights — Imito a tion Companies — Rights of Consumers.</p> <p>A corporation which appropriates water under the laws of the state, and furnishes the same to consumers for domestic and irrigation purposes, cannot, by a private contract with a consumer owning land within its distributing system, limit the time during which it is required to furnish him water so that, at the expiration of such time, it may withdraw the water from his land which has been improved by its use, and sell it to a new consumer, though, by reason of more favorable location, a larger area may thereby be brought into cultivation.</p>

This appeal is from a decree of the circuit court of the United States for the Northern district' of Illinois, dismissing the bill of the above-named complainants against the above-named defendant for the infringement of claims 1, 2, 3, 5, and C of letters patent No. 258,144, issued May 16, 1882, to Robert D. O. Smith for certain alleged improvements in water-closets.

<p>1. Patents — Suit for Infringement.</p> <p>A complainant in a suit to enjoin a threatened infringement cannot make a preliminary injunction the sole object of hi,s bill, and will not be permitted to hold such order in force, and rest upon that and a decree pro confesso, when a timely motion for dissolution is made by the defendant.</p> <p>2. Same — Estoppel to Deny Validity of Patent.</p> <p>One sued for infringement is not estopped to deny the validity of the patent by a contract by which he became agent for the sale of the patented article, where such contract was terminable at will, and he repudiated the agency before the alleged infringement.</p> <p>3. Contract — Who may Enforce.</p> <p>A contract between the principal stockholders in a corporation by which each agreed that, so long as he retained his stock, he should work, in the business to which the corporation related, only in the name of the corporation, and for the benefit of all the parties, cannot be enforced or taken advantage of by the corporation, which was not a party to it, in a suit against one of the parties, to which the others are not parties.</p> <p>4. Patents — Suit fob Infringement — Estoppel.</p> <p>A defendant is not estopped to deny the validity of the patent by the fact that he is a stockholder in the complainant corporation.</p> <p>5. Same — Validity—Aggregation of Parts.</p> <p>The doctrine of aggregation applies, not alone to a machine, but to an article of manufacture.</p> <p>6. Same — Invention.</p> <p>A device, to be patentable, must be novel, whether a manufacture or a machine, within the meaning of the patent law; and the test of novelty is the same in both cases.</p> <p>7. Same — Hotel Cabinet.</p> <p>The Manly & Daily patent, No. 486,113, for an hotel cabinet, is void for want of invention.</p>

This was a suit in equity brought by J. E. Griffith against Samuel E. Shaw and another tor infringement of a patent. Heard on the pleadings and proofs.

<p>1. Patents — Infringe*!but—Rotj/eb Coastees.</p> <p>A claim for a roller-coasting structure with parallel tracks, and having the starting and terminal stations “at the same elevation,” and switching tracks for transferring the ear from the outgoing to the return track, is not infringed by a structure in which the two stations are at different elevations, and the car is transferred by transfer tables.</p> <p>8. Same.</p> <p>The Thompson patent, No. 310,966, for a roller-coasting structure, construed, and Jield not infringed.</p>

<p>.1. Patents — Invention—Crushing Mills.</p> <p>Mills for crusMng oros and other substances were in use, constructed with a pan, inside of which was a circular die with vertical sides, against which the ore was crushed by rollers revolving inside of the die. These rollers rested upon the floor of the pan, and, when rotated at high speed, the friction induced excessive wear. In this state of the art, the Huntington patent, No. 277,184, was issued for a machine in which the same pan, die, and rollers were used; but the rollers were suspended from a central revolving frame by shafts having horizontal journals above, so that, when the frame was rapidly revolved, the rollers were swung outward by centrifugal force, and rotated against the interior surface of the die. Held, that such combination involved the application of a new principle not anticipated by the prior inventions, and that, as to such principle, the inventor’s claim is entitled to a liberal construction.</p> <p>2. Same — Infringement—Different Means of Applying Same Prinoiple.</p> <p>The essential feature of the invention being the suspension of the rollers in such manner as to leave them free to swing to and from the center of the pan, and to rotate against the die by centrifugal force, a machine is an infringement which embodies such feature, though different mechanism is used.</p> <p>8. Same — Construction of Claims.</p> <p>It is the duty of a court, where it will not do violence to the language, to construe a claim so ns to give the patentee what he actually invented, in view of the prior state of the art.</p> <p>4. Same — When Plural Includes Singular.</p> <p>A patent for a machine described in the claim and specifications as being made with “rollers,” and as having a “series of rollers,” and having two rollers as shown in the drawings, where no function is assigned to the plurality of rollers, and the number does not affect the value of the invention, and it does not appear that the inventor intended to limit himself to any particular number, is infringed by a similar machine, though having but a single roller.</p> <p>5. Same — Infringement.</p> <p>A patent for a combination in a machine which embodies the first application to the art of a new principle is infringed by any subsequent combination of the same devices embodying the same principle to accomplish the same result.</p> <p>6. Same — Different Application of Power.</p> <p>A different application of power to a patented machine, so that the parts in combination are set in motion in inverse order, but when in motion perform the same functions and accomplish the same result in the same way, Is not a material change in the machine, and will not avoid infringement.</p>

This was a suit in equity by the Moline Plow Company against: the Purlin & Orendorff Company and others,for alleged infringement of a patent for an improvement in corn planters. The circuit court rendered a decree for the complainant (84 Fed. 349), from which the defendants have appealed.

<p>1. Patents -Appeals from Preliminary Injunctions — Effect of Prior Decisions.</p> <p>A circuit court of appeals, when reviewing a preliminary injunction granted on the strength of a prior decision by a circuit court of appeals of another circuit, is not precluded, by such prior decision, from inquiring into the validity of the patent, on the merits.</p> <p>2. Same — Scope of Review.</p> <p>On appeal from an order, made on ex parte affidavits, granting a preliminary injunction, the court may, if of opinion that the bill has no equity to support it, reverse the order and direct the dismissal of the bill. 8. Same — Invention.</p> <p>The substitution of an internal for an external toothed spur wheel, in connection with the driving shaft of a windmill, producing only improved effects long known to mechanics to be the result of using that form instead of the others, involved no invention, where internal gearing was already in use in another part of the same machine.</p> <p>4 Same — Windmills.</p> <p>The Martin patent, No. 433,531, for an improvement in windmills, is void for want of invention. 85 Fed. 782, reversed.</p>

T'hc-se were two suits by Francis H. Hill, one against James C. Curtis, and the other against Louis Hornthal and H. J. Millhauser, to enjoin an alleged infringement of letters patent No. 482,557, issued September 13,1802, to complainant, for a metallic casket. The novelty claimed by the patentee was in the top of the casket, which is tiras described in the specifications: The top of the casket is cut out of sheet metal In substantially the form shown in Fig. 7.

<p>1. Patents — Processes—Mistaken Theory Embodied in Specification.</p> <p>If tlie patentee of a process fully describes the invention itself and its practical results, and gives sufficient directions for putting it into practical use, the validity of the patent is not affected by the fact that lie has also expressed, in tlie specification, an erroneous scientific theory as to the action of one of the substances employed in the process.</p> <p>2. Same — Interpretation—Infringement.</p> <p>A patent for an improvement in the process “of manufacturing castings from wrought iron and steel,” by adding a slight amount of aluminium to the molten metal, stated in the specifications that “the iron or steel is melted in crucibles or metal-smelting furnaces of any suitable description.” Held, that this did not confine the patent to a remelting process, starting with the wrought iron or steel in a solid state, but that it applied as well to molten metal taken direct from the smelting furnace and used in casting.</p> <p>3. Same.</p> <p>In a claim for a described process “of manufacturing castings” from wrought iron or steel by adding a small quantity of aluminium to the molten metal, held, that “castings” was not limited to articles to which ultimate form is given in the mold, hut included also steel ingots, which are subject to further treatment, Involving change of form.</p> <p>4. Same.</p> <p>in a patent for a process of manufacturing iron or steel castings, the claim stated the process as consisting “in the admixture with the molten iron or steel of aluminium In about the proportions specified, and then easting.” Tlie specification stated that the aluminium should be added “preferably just before the pouring Is commenced.” Held, that tlie claim was infringed by putting the aluminium in the mold itself after it was about one-third full, and then pouring in the rest of the metal.</p> <p>5. Same.</p> <p>The patent specified the proportion of aluminium to be added as preferably from V5 to t/io 1 I)er cont., and never exceeding 1 per cent., and further stated that “even a much smaller percentage has an appreciable influence.” Ile.hl, that the patent was infringed by using 35/ioooo of I per cent., where the results designed by the patent were thereby secured.</p> <p>6. Same.</p> <p>The Wittenstrom patent, No. 333,373, for an Improvement In the process of manufacturing castings from wrought iron and steel, construed, and hdd to cover an invention of a primary character; and also held infringed.</p>

<p>1. Prize — Hearing on Evidence in Preparatorio.</p> <p>At the first hearing in prize proceedings, only the evidence afforded by the examination of the captured crew, taken on standing interrogatories, the ship’s papers, and other evidence of a documentary character, found upon the ship by the captors, is to be considered.</p> <p>2. Sami; — Ship of Neutral Chartered to Enemy.</p> <p>When a vessel owned by a subject of a neutral power is chartered to a subject of the enemy, with full power to control her voyages a.nd employ her in illicit trade, she is to be treated, when found attempting to violate the blockade, as if she were enemy’s property.</p> <p>3. Same — Evidence in Preparatorio — Subsequent Contradiction.</p> <p>Where the charterer of a vessel taken as prize stated in his testimony in preparatorio that he was a loyal subject of the enemy’s government, he cannot thereafter be permitted to contradict the same by showing that he had cast in his lot with insurgents against that government.</p> <p>4. Same — Violation op Blockade — Intent.</p> <p>Sailing from a neutral port with intent to enter a blockaded port, with knowledge of the existence of the blockade, subjects the vessel and generally its cargo to capturo and condemnation; nor does it matter that the vessel is merely in ballast, and her purpose ivas ostensibly to take away persons who desired to escape the hardships of the blockade.</p> <p>5. Same.</p> <p>Neutral ships, though not ostensibly destined to a blockaded port, cannot innocently place themselves in a situation which would enable them to violate the blockade; and, where a vessel is taken while entering a blockaded port, it is no defense that, she previously approached the admiral’s ship to ask permission to take off refugees.</p>

<p>1. Public Nuisance — Private Action — Special Damages.</p> <p>The owner of vessels detained by the falling of a draw in defendant’s bridge over a navigable channel, through defendant’s negligence, can maintain an action for the recovery of special damages sustained by reason of- the delay.</p> <p>2. Navigable Waters — Obstruction by Bridge — Statute.</p> <p>A railroad company building a bridge across a navigable channel under a statute which requires it to maintain and keep in repair a draw, and to open the same when required, “so as to afford all reasonable and proper accommodation for vessels having occasion to pass through the samé,” owes a special duty to an owner of vessels having occasion to pass through such draw, and is liable for a breach of such duty, where, through its negligence, the draw fails, and such vessels are detained.</p>

<p>1. Contract — Substitution of Parol for Written Agreement — Agreement of Minds.</p> <p>In order to supersede a written contract by a subsequent parol agreement between the parties, there must have been tlie same agreement of minds to the abandonment of the old contract as was required to make it; both parties must have understood the matter alike, and assented to the terms of the new agreement.</p> <p>3. Maritime Liens — Repairs—Powers of Master in Home Port.</p> <p>The master of a vessel which is out of commission, and is being repaired in the borne port under a written contract with the owner, though given a general supervision over the work, has no power to bind the vessel for work done outside the contract.</p> <p>3. Same — Extra Work — Estoppel of Owner.</p> <p>The owner- of a vessel being repaired under a written contract is not estopped by acquiescence from contesting liability for work done outside the contract, where he did not know of it until completed, and the bill for the same was iiresented for payment.</p> <p>4 Same — Freedom of Contract — Government Inspection.</p> <p>Rev. St. §§ 4445-4454, do not give a United States Inspector of hulls authority to interfere with the freedom of contract for repairing vessels; and where a written contract for repairs provided that no extra work should be done, unless agreed to by the owner in writing, the vessel cannot be held for extra work done without the owner’s knowledge, though necessary to render the vessel safe and sound, and done on the requirement of the inspector, under whose supervision the repairs were made.</p> <p>5. Admiralty Courts — Powers—Enforcement of Contracts.</p> <p>Though courts of admiralty exercise equitable powers, and determine cases on equitable principles, they have no power to set aside contracts voluntarily entered into, because of hardships resulting from their enforcement.</p> <p>6. Maritime Irens — State Statuses — Enforcement by Courts of Admiralty.</p> <p>In enforcing liens given by state laws for repairs and supplies furnished vessels in their home ports, courts of admiralty are governed by the principles and restrained by the limitations which ordinarily attach to liens in admiralty in a foreign port under the general maritime law. which rest upon the presumption that credit was given the vessel; and, where it clearly appears that materials furnished a contractor were furnished either on the credit' of the contractor or owner, no lien will be-enforced therefor.</p> <p>7. Same — Materials Furnished on Credit of Contractor.</p> <p>One furnishing materials to a contractor for the repair of a vessel, with knowledge that by tbe terms of the contract there was to be no lien on the vessel for such repairs, Is not entitled to a lien.</p> <p>8. Same — Evidence—Entries in Books of Libelant.</p> <p>An entry in the books of one furnishing materials to a contractor for the repair of a vessel, showing that such materials were furnished to the vessel, is in the nature of a self-serving declaration, and without weight in determining the right to a lien.</p>

<p>1. Shipping — Liability of Ship Owners — Injury to Cargo by Fire.</p> <p>Sugar in baskets, placed on plank on the iron floor of the between-decks of a steamship, was ignited by the heat of the flue of the donkey boiler -in the stokehole bulkhead immediately beneath it. The top of the flue was 18 inches from the floor of the between-decks, and Intervening was a system of baffle plates. The ship and her machinery were constructed by competent builders, under the survey of Lloyds’ Register, from whom she had received the highest rank for hull and machinery. She had been for three and one-half years in active and varied service, had been repeatedly surveyed, and numerous experts testified that her plan was In accordance with the known and practiced devices for safety, while there was no evidence of other or better systems of protection against fire. Meld, that the fire was not caused by the design or neglect of the ship owners, and that, under Rev. St. § 4282, such owners were not liable for the cargo injured or destroyed by the fire.</p> <p>8. Same — Proximate Cause of Injury.</p> <p>During the flooding of the hold to extinguish the fire, the ship grounded in the Suez Canal, and listed, so as to allow water to flow through a pipe without a stop valve, leading from the bathroom of the captain’s cabin, and to find its way into one of the holds. Meld, that the fire was the proximate cause of the injury to the cargo in such hold, and that the ship owners were not liable therefor.</p> <p>8. Same — Delay of Vessel for Repairs — Decline in Market Value of Cargo.</p> <p>The ship was delayed necessarily for six months for repairs, during which time the cargo owners and underwriters, to whom abandonment was made, although fully apprised of the condition of the ship, made no demand for the transshipment and forwarding of the sound portion of the cargo, and the cargo owners apparently acquiesced in the delivery of the goods by the ship, while the underwriters simply stated that they should hold the ship responsible for the delay, but declined all propositions of the carrier for exxiediting the delivery. Held, that the cargo owners, or their successors in title, were not entitled to recover damages for decline in the market value of sueh cargo on account of the alleged unreasonable delay in delivery.</p> <p>4. Same — Action for Loss by Fire — Burden of Proof.</p> <p>Ship owners are not liable under Rev. St. § 4282, for injury to the cargo by fire, unless the cargo owners prove by a preponderance of evidence that the fire was caused by the design or neglect of the ship owners personally.</p> <p>6. Same — Delay of Vessel for Repairs — Detention of Cargo — Notice to Owners.</p> <p>When a ship becomes unfit for navigation from a cause which does not involve a breach of duty on the part of the carrier, and it is necessary to interrupt the voyage for the purpose of repairs, the master may detain the cargo until such repairs shall have been effected, but, if reparation be impossible or impracticable within a reasonable time, it may be the duty of the master to use suitable effort to find and employ facilities for transshipping and forwarding the cargo to its destination; hut if the owner of the cargo has means of information of the nature of the injury to the ship, and of the opportunities for repair, and of the probable delay, he may lie estopped by his acts or acquiescence from claiming damages to the market value of the goods arising from such delay.</p>

<p>Maritime Lien — Repairs—Implied Consent op Master.</p> <p>Libelant performed work upon tbe engine and boilers of a steamer at the request of tbe engineer, to whom be bad been recommended by tbe master as a suitable person to do any sucb work required. Tbe master knew of tbe doing of tbe work, and made no objection. Ecld that, in legal effect, tbe work was done by direction of tbe master, and tbe vessel was liable therefor.</p>

<p>.■Jurisdiction or Federad Courts — Suits in Rem.</p> <p>A suit by heirs against trastees under a will to recover a residue in the hands of defendants is not one to enforce a lien or claim on property, within tlie act of March 3, 1875, giving the circuit court of the district where the property is situated jurisdiction in such cases, with power to bring in nonresident defendants.</p>

<p>On Application for Continuance of Restraining Order.</p>

Ia this suit a trust deed executed by defendant company was foreclosed and its road sold. The present hearing is upon demurrer to a petition of intervention filed by Owens and others, general judgment creditors of defendant company, asking payment of their judgments from the earnings of the road during the receivership, in preference to the deficiency judgment in favor of the mortgage bondholders.

This is a suit in equity by the Fairfield Floral Company against W. J. Bradbury, postmaster at Fairfield, Me., to enjoin the enforcement of a “fraud order” issued against complainant by the postmaster general. The facts are stated in a former report of the case, on the hearing for a preliminary injunction. 87 Fed. 415.

This was a bill in equity by Thomas F. Ryan against the Seaboard & Roanoke Railroad Company and others to establish the plaintiff's rights as a stockholder in defendant company.

<p>1. Mortgage — Mistake in Description — Ratification.</p> <p>Where, by mistake, a different description of land from that intended was written in a mortgage, but the mortgagors, who were the owners of both tracts, afterwards, with knowledge of the mistake,' sold and convoyed the tract intended to be included, such act operated as a ratification upon their part of the mortgage as written.</p> <p>3. Acknowledgment — Separate Examination of Wife — Sufficiency of Certificate.</p> <p>Under a statute requiring the separate examination of a married woman by the officer taking an acknowledgment, and that the certificate shall be “substantially” in the form prescribed, a certificate which shows clearly that it was the desire and will of the wife to make the conveyance, and that it was done without the exercise of any undue influence of her husband upon her, is sufficient.</p>

<p>1. Railroad Mortgage — Property Included — Evidence of Ownership.</p> <p>The fact that a railroad company entered into possession of terminal property, the title to which was in another, and made improvements thereon, does not tend to prove ownership of the property in fee by the'Company in favor of its bondholders without proof of a contract for the trans-for of the title, and where the possession is as readily attributable to a lease or license.</p> <p>2. Degree — Validity—Amendment aeter Term.</p> <p>St. 111. (1 Starr & C. Ann. St. p. 109) c. 22, § 37, providing for the amendment of pleadings by leave of court, gives no authority for amendment after the term at which a final decree has been entered; and a second decree, entered on the petition of a stranger to the first, setting aside the decree entered at the previous term, no notice to the other parties of such proceeding- bring- shown by the record, is void on its face.</p>

Action by the Southern Development Company of Nevada against one Silva. There was a decree for defendant, and complainant applies for a rehearing. Application denied.

This is a suit in equity to enjoin tbe diversion of water from a dam and irrigating ditcb of which, complainant is a part owner. Heard on motion for a temporary injunction.

Proceedings for contempt against W. G. Pitt, for violating an injunction.

<p>1. Bill of Review — Questions in Issue.</p> <p>The decisions of the court upon issues of fact, so fax as they depend upon the proofs, are conclusive on a bill of review, and the only questions open for examination are such as arose upon the pleadings, proceedings, and decree, without reference to the evidence.</p> <p>2. Same — Grounds to Support — Fraud.</p> <p>A fraud which will sustain a bill of review must be one extrinsic or collateral to the matters tried, and not one which was in issue in the former suit.</p> <p>3. Same — Time por Filing.</p> <p>By analogy to the statutes governing appeals and writs of error, the United States courts have adopted the rule that a bill of review must be brought within the time allowed for taking an appeal.</p> <p>4. Same — Limitation.</p> <p>Where the only ground upon which an appeal could have been taken from a decree direct to the supreme court was that the jurisdiction of the court was in issue, in which case an appeal does not lie unless the question is certified during the term at which the decree was rendered (Act March 3, 1891; 20 Stat. 826); and, inasmuch as no such certificate was obtained, no right of appeal to that court existed.</p>

<p>Exceptions to Marshal’s Return of Sale.</p>

<p>1. Corporations — Contracts by Managing Officers — Validity.</p> <p>The president of a New York corporation owning mines in Idaho, who was authorized by the by-laws to sign obligations of the company, with another stockholder, the two owning nearly all the stock, took full charge and management of the business in Idaho, which they conducted Cor four years, during which time no meeting of either directors or stockholders was held. During his management the president at different times executed notes, in the name of the corporation, which were paid wilhout objection. Ilehl, that notes so executed to a bank for borrowed money, which was placed to the credit of the corporation, and drawn out upon its cheeks, which notes were recognized by the successors in interest of the managers for two years, during which time payments were made thereon, were valid and binding obligations of the corporation.</p> <p>2. Sauk — Estoppel to Deny Authority of Officers.</p> <p>Where the chief officers of a corporation are in reality its owners, holding nearly all of its stock, and are permitted to manage the business by the directors, who are only interested nominally or to a small extent, and are controlled entirely by tbe officers, tbe acts of sneb officers are binding on tbe corporation, which cannot escape liability as to third persons dealing with it in good faith on the pretense that such acts were ultra vires.</p> <p>3. Banks — Loan to Corporation — Diversion of Proceeds.</p> <p>A bank which discounts notes of a corporation depositor, and places the proceeds'to the credit of the corporation, upon whose checks they are drawn out in the regular course of business, cannot be required to know that such proceeds are properly applied to the uses of the corporation; and the fact that a portion of such proceeds is not so applied will not invalidate the notes where the bank was not in collusion as to the diversion.</p> <p>4 Corporation — Mortgage—Estopped to Deny Validity.</p> <p>Where the property and "business of a New York corporation was in Idaho, and was there managed for a number of years by the president, without interference or objection by the directors, a mortgage executed during such time by the president on property of the corporation in Idaho, to secure an indebtedness there created in the conduct of the business, is valid and binding on the corporation.</p> <p>5. Same — Seal.</p> <p>It is not essential to the validity of a mortgage given by a corporation that the corporate seal should be affixed.</p> <p>6. Same — Consent of Stockholders.</p> <p>Under the New York statute which, to authorize the mortgage of realty by a corporation, requires that the written consent of the stockholders owning at least two-thirds of the stock should be filed with the clerk of the county where the realty is situated, the essential thing is the assent of the owners of two-thirds of the stock; and, where that'is shown, the validity of a mortgage of .which the corporation has had the benefit will be upheld, though such assent was not manifested in the statutory way.</p>

On demurrers to pleas in intervention filed by Arthur Brown and Henry Aplington, eacli claiming the product of the mortgaged mining property during the receivership.

<p>Carriers — Injury to Passenger — Liability eor Negligence oe Agent.</p> <p>A railroad company selling a ticket for the carriage of a passenger between two points is liable in tort for an injury resulting to such passenger through the negligence of those operating the train, though such train was owned a.nd operated by a different company, the ticket being receivable i'or passage thereon through an arrangement between the two companies.1</p>

<p>1. Municipal Corporations — Taxation of Tele&raph Company.</p> <p>A city may lawfully irnpose a license tax upon the poles and wires of a telegraph company maintained within its limits to cover the expense to which it is put in the enforcement of its police regulations by reason of the'existence of such poles and wires, though the company is a corporation of another state, and engaged in interstate commerce.</p> <p>3. Same — Reasonableness of Tax — Review by Courts.</p> <p>Whether a license tax imposed by a city on the poles and wires of a telegraph company is reasonable in amount may be the subject of judicial inquiry, and is a proper question to be determined by a jury where it arises in an action at law.</p> <p>8. Same — Scope of Inquiry — Evidence.</p> <p>A court, however, is authorized to set aside an ordinance imposing such a tax only when the discretion vested in the -legislative department of the city has been manifestly abused; and, in determining that question, a ■wide latitude should be allowed in the introduction of evidence. In addition to the cost of inspection required by the ordinances, testimony tending to show that an increase in the force and apparatus of the fire department had been rendered necessary by the maintenance of such •poles and wires is proper to be considered, as well as evidence that extra meeting's of the councils have been required for the purpose of regulating their erection and maintenance.</p>

<p>Insuhance — Limitation of Action — Estoppel.</p> <p>A court will not enforce tlie short private limitation fixed by an insurance policy for the bringing of an action (hereon, where there was at no time a. denial of liability, and the delay resulted from the expectation of the insured, induced by the insurer, that the loss would be paid without suit as soon as funds could be provided. 1</p>

This is a suit on an instrument given to secure payment for goods furnished by plaintiff upon a written contract or order. The following are copies of the order, and the instrument securing the same, referred to in the opinion as Exhibits A and B. Exhibit A. Cleveland, Dec. 6, 1895. The Mclntosh-Huntington Co., Cleveland, O. — Gentlemen: Please enter my order for one hundred Crawford bicycles, at the following prices: #23, §30; #25, §33; #27, §37.

Tliis is an action by plaintiff, as a judgment creditor of the Western Farm Mortgage Trust Company, a Kansas corporation, to recover of defendant as a stockholder therein. Heard on demurrer to the answer.

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

<p>Sur Rules for Attachment.</p>

<p>Interest — Money Received — Construction of Statute.</p> <p>St. Nev. 1887, § 1, properly punctuated, allows the recovery of legal interest on money received to tbe use of another from the time of demand.</p>

<p>Attachment — Grounds—-Sufficiency of Affidavit.</p> <p>Under tlie statutes of New York, an affidavit sworn to on tile same date the complaint was verified, and averring that plaintiff has performed labor and services for defendant from a time stated “down to the present time,” does not show a breach of contract or a cause of action accrued which will support an attachment.</p>

This was a libel in admiralty by N. K. and M. Connolly against John R. Read, collector of customs for the district of Philadelphia, to recover possession of the steam dredge International and two scows used in connection therewith. . There was a decree for libelants (88 Fed. 840), and the collector appeals.

<p>' This is a suit in equity to enjoin the use by defendant of an alleged trade-mark.</p>

<p>This is a suit in equity for infringement of a trade-mark.</p>

<p>Rui I: in equity for the infringement of a patent. On motion for a preliminary injunction.</p>

This appeal is from a decree for an accounting and for an injunction against infringement of claims 1 and 4 of letters patent No. 32!,726, claim 3 of letters patent No. 306,209, and claims 2 and 3 of letters patenl No. 400,682,, all granted to Albert L. Ide, who died pending the suit. The suit was revived and prosecuted to a, decree by his executors, the appellees.

<p>Patents — Feed-Water Heaters.</p> <p>In the improved feed-water heater and purifier described in the Ferreira patent, No. 400,319, the separation of the oil from the exhaust steam used for heating purposes by means of the steam chamber, which permits the expansion of the steam in its passage, is an incidental function only, and not covered by the patent, being performed in a similar manner by the heaters described in earlier patents, notably that of Crighton, Wills, and Rastetter, No. 65,547.</p>

<p>1. Patents — Priority—Presumption from Numbers.</p> <p>Where two patents are issued to tke same person on the same date, covering practically the same invention, there is no presumption from the numbers as to which was issued first, and neither will he held an anticipation of the other; hut the patentee or owner may elect upon which he will rest, and the other will he declared inoperative.</p> <p>2. Same — Anticipation—Covering for Steam Pipes.</p> <p>The Pierce reissue, No. 10,376, as to claim 1, for “a covering for pipes, boilers, etc., consisting of layers of paper so secured together at intervals as to form air spaces,” was not anticipated by prior inventions in which porous or fibrous materials were used, nor by the Reed patent, No. 171,425, for a paper covering, but without air spaces.</p> <p>8. Same — Cancellation of Patent.</p> <p>The Pierce reissue, No. 10,375, for a covering for steam pipes, being for practically the same invention as No. 10,376, issued on the same date to the same patentee, and which is herein sustained, held inoperative, and its assignment or sale prohibited.</p>

<p>Shipping — Carriage of Passengeks — Accommodations.</p> <p>Passengers on a sailing vessel testified that the food was of bad quality and the water brackish. A few other cabin and some steerage passengers stated that the food was “excellent,” as did also the captain’s wife. The latter testimony was contradicted by a witness who stated that during the voyage the captain’s wife had said she would die if she did not get better food, and spoke of growing thin because of it, and that other witnesses for the claimant had frequently complained of the food. Complaints were made during the entire voyage, and all the cabin passengers left the boat at an intermediate port, but there was no. survey then called on her remaining stores. There was evidence that most of the beef and pork was bad and the other stores inferior. The rice sometimes had weevils in it. Held, that this was sufficient, in the absence of a survey, to show that the food was unsuitable, in view of the payment of J>125 for passage when first-class passage by steamer was only $200.</p>

This was a proceeding by the United States for the condemnation of the steam vessel Newfoundland and her cargo as prize for having attempted to run the blockade of the port of Havana.

<p>1. Evidence — Testimony on Former Trial — Change of Parties.</p> <p>After a vessel libeled for collision had been released on stipulation, intervening libels were filed, on which a trial was had, and a judgment rendered for interveners, which was reversed on appeal, on the ground that the liability of the claimant on the stipulation could not be increased by the subsequent filing of new claims, and that, as the vessel had been discharged, the court could not adjudicate such claims. Held, that under such'decision, which, in effect, determined that the vessel was not a party to the judgment, after new process had been issued on the intervening petitions, and the vessel again taken into custody, the parties were not the same, so as to render testimony taken on the former trial admissible on a second trial.</p> <p>2. Collision — Evidence of Negligence — Insufficient Watch.</p> <p>The facts that a steamer was running down the Columbia river from Portland on a dark night, at a speed of 15 miles an hour, over a course where it was the custom for sailing vessels to, anchor at night, with only one watch and no officer on deck, are evidence of negligence contributing to a collision with a ship at anchor.</p> <p>3. Same — Damages—Computation, of Interest.</p> <p>Where intervening petitions claiming damages growing out of a collision were filed after the vessel had been discharged on stipulation, but were subsequently treated as original libels, and process ordered issued thereon, the date of such order will be considered the time of commencement oí the suit, for the purpose of computing interest on damages recovered.</p> <p>4 Same — Kate of Interest.</p> <p>In collision cases interest will be allowed on damages recovered at the rate of 6 per cent.</p>

<p>Jettison — Crankness of New Ship — Top-Heavy Loadino — Ballasting^— Harter Act.</p> <p>On claim to damages for jettison of part of a cargo of case oil, made necessary by top-beavy loading of a new ship and insufficient ballasting, held (1) that tbe risks of loading for a first voyage fall on the owner, and not on the charterer or shipper, who are guarantied seaworthiness in all respects at the time the ship sails; (2) that the Harter act does not release the owner’s previous liability in this regard, but by its first section, confirms it; since the proper ballasting of a light cargo is a necessary part and incident of the “proper loading and storage” of cargo.</p>

<p>Motion to Strike Out Testimony.</p>

<p>This is a suit for an injunction. Heard on application for a temporary injunction.</p>

<p>This is a suit in equity to enforce a contract and for an injunction. Heard on demurrers to the bill.</p>

Opinion of the court on demurrer to the amended bill of complaint, motion that parts of said bill be made more certain, and application for receiver.

This is a bill to enjoin the diversion of the water oi a stream to which the complainant claims the right by prior appropriation. Heard on demurrer to the bill.

On exceptions to the report of the master fixing the liability, as between the defendant railroad companies, for losses growing out of a collision between trains. •

<p>1. Railroads — Joint Management by Lessees — Rights of Parties.</p> <p>The purchasers at forced sale of the interest of one of two lessees of a railroad system which, was managed by a joint commission created by the lessees afterwards became indebted to the managing agency. Held, that they could not withhold payment of one-half of such indebtedness, on the ground that they were entitled to half the earnings of the system, without showing that at the time the indebtedness was due there were net earnings to be divided, against their share of which the indebtedness could be set off.</p> <p>2. Same — Purchaser of Part Interest.</p> <p>In such case the purchasers could not repudiate expenditures by the commission made necessary by contracts entered into before their purchase with the approval of their predecessor in interest.</p> <p>3. Same — Unauthorized Improvements.</p> <p>The agreement between the original owners of the lease by which the managing commission was created provided for the election of the commissioners annually, but after the sale of the interest of one of such lessees a disputo arose as to its ownership, during which no election for commissioners was held, the old members continuing to act. Scli, that expenditures made by the commissioners while so acting, for permanent improvements, were unauthorized, and not binding as against the purchasers whose title to the interest in dispute was afterwards established.</p> <p>4. Same — Beceivership—Contracts by Becbiver.</p> <p>A receiver operating- a railroad is not required to come to the court for special authority to enter into contracts for supplies or accommodations necessary to the operation of the road; such matters being necessarily left to his discretion, which will only be leviewed on a showing of bad faith, or that the contracts are so extravagant as to be unconscionable.</p> <p>5. Same — Accounts against Receiver — Interest.</p> <p>In South Carolina, where interest is allowed on open accounts only by positive stipulation, or by agreement established by a course of dealing, it is not recoverable on a running account in favor of one railroad against the receiver of another, which had never been stated, and on which payments were made from time to time.</p>

<p>1. Former Adjudication — Pleading—At,legations of Privity.</p> <p>A pleading setting up a former judgment between plaintiff and a third party as binding on defendant need not allege, in terms, that defendant had such control of the former action as to be bound by the judgment, but is sufficient if the facts pica ded warrant such conclusion by the court.</p> <p>2. Same — What Constitutes Privity — Contributing to Defense.</p> <p>One who, being interested in the subject-matter of an action for infringement of a patent, contributes towards tlie defense of such action, and agrees to pay a share of tlie expenses and costs, becomes privy thereto, and is bound by the judgment.</p> <p>3. Same — Pleading—Finality of Judgment.</p> <p>A supplemental bill setting up a former judgment as conclusive of tlie question of the infringement of a patent is not demurrable because it does not allege that such judgment is final, as, if not final, tlie trial should be continued until it becomes so.</p>

<p>This is an action to recover a tax paid under protest, heard on cross motions for judgment on the pleadings.</p>

Assumpsit. First count, money had and received; second, a special promise to pay for planks and timber sold by the plaintiffs to Bryan, in consideration that the plaintiffs would forbear to sue him; third, indebitatus assumpsit for planks, etc., sold to the defendant himself. The case in evidence was that Bryan had contracted with Mr. Law to build stables and furnish materials; that Bryan purchased of the plaintiffs planks, etc., to the amount of $135.97.

<p>Suit in Equity for the Infringement of a Patent.</p>

<p>This is a suit for infringement of a patent and for an accounting.</p>

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

<p>Motion for Leave to Take Proofs in Sur Bebuttal.</p>

This is a suit in equity to enjoin defendant from pasturing sheep on uninclosed lands of complainant. Heard on exceptions to answer.

<p>TMs cause comes up for final hearing in equity upon pleadings and proofs.</p> <p>The complainants are co-partners in business, and residents of St. Gall, Switzerland, their firm name being Huber & Kellet. The defendants, Meyer, Isaac, Daniel, Morris, and Solomon Guggenheim, are eo-partnors carrying on business in the city of New York under the firm name of M. Guggenheim’s Sons. On May 16, 1889, as the testimony shows, — the complaint erroneously gives the date as May 18th, — complainants and defendants entered into a contract in writing at St. Gall. This contract recited that defendants were the owners of United States letters patent No. 260,525, issued October 24. 1882, to Albert L. Rice, “for and relating to and under which they are and have been doing up embroideries in the manner known as, and to which they have applied the trade-name, ‘Automatic,’ * * * [and that complainants] are desirous of acquiring a license under the said Rice patent, that they may be permitted to do up embroideries in the manner known as ‘Automatic,’ and to import and sell the same in the United States of America, without incurring liability under or by reason of the said Rice patent.” The embroideries referred to are what are known as “Hamburg edgings,” and the contract defines the manner of doing them up known as “Automatic” as being the manner “in which the parallel rows of embroidery are perforated, punctured, or indented so as to permit the rows being readily separated.” The contract provided that in consideration of $1,000 per annum such license is granted during the remainder of the term of the patent, “or until the same shall have been decreed invalid by the supreme court of the U. S.”; that defendants should furnish complainants 50,000 license stamps during each year, one stamp to be placed on each piece of embroidery so done up and imported or sold in the United States; said 50,000 stamps to be used by complainants within the year for which they are issued, and not to be sold or otherwise disposed of by others, being intended for use solely upon embroideries done up by complainants. In case complainants did not use the 50,000 furnished to them in any one year, they were to deliver up the balance to be destroyed. If they required additional stamps for any year, defendants agreed to furnish them at the same rate, two cents for each stamp. Defendants covenanted to protect and defend complainants against any suit or suits brought against them for infringement of any United States letters patent by reason of their doing up any embroideries in the manner specified, and further covenanted “to protect and defend them in the use of the invention specified in the said Rice patent.” This suit was brought in Ifebruary, 1892, complainants praying for a decree that the contract “was from the beginning, and is, wholly void,” that the same should be delivered up to be canceled, and that all moneys paid under it should be repaid, for the reason that complainants were induced to enter into the contract by certain false representations made by defendants with intent to deceive and induce complainants to make the contract, which false representations, it is averred, complainants relied upon, and but for which they would not have entered into the contract. The facts are set forth in the opinion.</p>

This suit was brought by a judgment creditor to obtain a marshaling of assets and a sale of the property of the Baltimore & Ohio Railroad Company, an insolvent corporation. Receivers of the railroad company’s property were appointed on February 29, 1896, and have since been in possession and operation of the road. The so-called “main stem” of the railroad is incumbered by three mortgages, and there are issues of first and second preferred stock arid of common stock.

<p>1. Mortgages — Suit for Foreclosure — Receiver.</p> <p>A court of equity, under its general powers, may appoint a receiver for mortgaged property pending foreclosure, where.it appears that the property is insufficient security for the debt, that the debtor is insolvent, and that the rents are not being apiilied to keeping- up the taxes, rexiairs, or insurance.1</p> <p>2. Save — Rents of Mortgaged Property — Effect of Statute.</p> <p>The fact that, under the provisions of the Colorado statute, a mortgagee is not entitled to possession of the mortgaged property, nor the rents and profits thereof, until foreclosure and sale, does not render it illegal for a court to collect the rents pending foreclosure by a receiver, and axqily the same to the payment of taxes, insurance, -and for repairs on the proiierty, which the mortgagor had covenanted to keei> up, nor to apply any balance remaining in the receiver’s hands to the repayment of money advanced by the mortgagee for the same purposes.</p> <p>3. Same — Extent of Lien — Advances by Mortgagee to Pay Assessments.</p> <p>The streets adjacent to mortgaged property had been paved, the cost assessed against the property, the property sold, and the time for redemption had nearly expired when the mortgagee redeemed from the sale. No steps had been taken by the mortgagor to contest the validity of the assessment. The mortgage provided that any tax or assessment paid by the mortgagee should be included in the debt secured. Held, that the court should not refuse to include it on a claim by the mortgagor that the sale of the property was not authorized, nor that because of a defect in the proceedings it could have been defeated.</p>

<p>Upon the petition of the Chippewa Valley & Electric Railway Company for an order authorizing it to construct its electric railway across the track of the Chippewa Falls & Western Railway Company, operated by the receivers of the defendant company.</p>

<p>1. Jurisdiction of Federal Courts — Action on Municipal Bonds.</p> <p>The fact that a circuit court of the United States has no jurisdiction of an original proceeding for a writ of mandamus to compel municipal officers to levy a tax to pay bonds, does not affect its jurisdiction of an action at law by a citizen of another state to recover judgment on such bonds, though any judgment recovered can be enforced only by mandamus proceedings against such officers.</p> <p>3. Statutes — Special or Local Laws — Classification of Cities.</p> <p>A statute authorizing the issuance of bonds by cities or towns, except those of the first class, is not a local or special law, within Const. Cal. art. 4, § 25, subd. 33, prohibiting the passage' of such laws “in any case where a general law can he matle applicable.” Such constitution, by authorizing the organization and “classification in proportion to population” of cities, in effect authorizes different charters for different classes.</p> <p>3. Municipal Bonds — Validity—Acts of Officep.s Dm Facto.</p> <p>In the signing and delivery to a purchaser of municipal bonds the acts of officers de facto are, as to third persons, equally as binding on the city as though they had been officers de jure.</p> <p>4. Officers De Facto — Holding Over Term.</p> <p>Whei'e a mayor and council of a city were elected and qualified, but did not actually enter upon their duties as officers for some four weeks thereafter, the outgoing officers, who continued ,to act during such time publicly and without objection, were the officers de facto, and their acts were, as to third persons, binding on the city.</p> <p>' 5. Municipal Bonds — Refunding Indebtedness — Legality.</p> <p>Tinder a statute authorizing cities to issue bonds for the purpose of refunding their bonded indebtedness, a city has no power to refund bonds issued,by-a water company, and secured by mortgage on its property, which the city has since bought, subject to the mortgage.</p> <p>6. Principal and Agent — Notice to Agent.</p> <p>A purchaser of bonds through an agent is not chargeable with the knowledge of his agent as to defects where the agent in reality acted in the transaction for his own benefit, receiving a share of the profits realized by the seller. :</p> <p>7. Municipal Bonds — Effect of Recitals.</p> <p>Recitals in municipal bonds that such bonds are issued in conformity with the provisions of a statute authorizing cities to refund their indebtedness, -with the constitution of the state, and an ordinance of the city, import that the ordinance is in conformity with the statute, and do not ■ charge a holder with notice of the contents of such ordinance.</p> <p>8. Same — Powers of City — Construction of Statute.</p> <p>A statute authorizing cities to issue refunding bonds must be construed as giving authority to issue negotiable bonds in the usual form.</p> <p>9. Same — Estoppel to Deny Recitals.</p> <p>Where there was a statute authorizing cities to issue bonds to refund their bonded indebtedness, and bonds issued by a city contain recitals that they were issued in conformity with such statute for the purpose of refunding the city’s bonded debt, and that every act required by the statute as a condition precedent to their issuance was performed, the city cannot defeat a recovery on such bonds as against an innocent purchaser on the ground that such recitals were false, and that a portion of the debt refunded was that of a private corporation.</p> <p>10. Same — Effect of Recitals.</p> <p>It may be laid down as a general rule that when municipal bonds recite facts which, if true, show that they were issued upon the conditions and for a imrpose authorized by law, a bona Me purchaser, without notice of any infirmity therein, may safely rely upon such recitals.</p>

<p>Heard on Demurrers to Pleas of Ees Judicata.</p>

This hearing was on exceptions to the report of a master on the intervening petition of 1lie Dewey Stave Company and the Dayton Insurance Company against the receiver to recover for the loss of property by fire caused in the operation of defendant’s road by the receiver.

<p>Motion to Strike Out Portions of Amended Complaint.</p>

This is an action at law by George R. Brown as a judgment creditor of the Western Farm-Mortgage Trust Company, a Kansas corporation, to charge the defendant, Charles E. Trail, as a stockholder in said company, under the statutes of Kansas. Heard on demurrer to pleas.

<p>1. Trial — Direction of Verdict.</p> <p>Where, in an action for a personal injury, the undisputed facts establish contributory negligence on the part of the plaintiff, it is the duty of the court to direct a verdict for defendant.</p> <p>2. Contributory Negligence — Action for Personal Injury — Direction of Verdict.</p> <p>In an action for a personal injury by falling through an open hatchway in the deck of a vessel, it was not error to direct a verdict for defendant on the ground of contributory negligence, where plaintiff’s own testimony showed that he was engaged in making repairs on the vessel, as were other workmen; that on the day before the accident he walked over the hatchway, which was then closed, but noticed that other hatchways were open, and that workmen were repairing the deck; that on the night in question, after dark, in returning from a different part of the vessel, where he had been employed, he again attempted to walk over the hatchway, though there was a clear space of 10 feet by the side of it, and, it being then open, he fell in, and received the injury complained of.</p>

From tiie record in this case it appears that in the year 1880 the plaintiff in error was incorporated under the laws of the state of Missouri, under the name of the St. Joseph Union Depot Company, for the purpose of constructing and maintaining a union railway depot at the city of St. Joseph, Mo., tlie corporation being in fact organized by the railway companies then operating lines of railway to St. Josepili.

<p>1. Public Lands — Rights Acquired by Occupancy.</p> <p>One who settles upon and improves unsurveyed public land, but dies before its survey, or without having taken any steps to procure title, no intention to acquire the title, upon its survey, being shown, has no right in the land which could pass by devise or inheritance.</p> <p>2. Samp, — Lands Withdrawn under Railroad Grant.</p> <p>A settler upon unsurveyed public land, which is afterwards withdrawn from the market on account of a proposed railroad, until he lias taken the steps required by Rev. St. it 2281, to give notice of his claim and obtain title, has no right in the land which can be conveyed or which will pass on his death.</p> <p>3. Same — Pacific Land Grants — Withdrawal of Land from Entry.</p> <p>Under the Pacific Railroad grant of July 2, 18G-1, lands remained subject to disposal by tlie government to settlers, under the laws of congress, until the filing of the map of tlie definite location of the railroad identified the particular lands passing.</p> <p>4. Same — Right of Homestead Entryman — Relation of Patent.</p> <p>Under the statutory provision that the rights of one making entry under the homestead law's shall relate to tlie date of liis settlement, one who settled upon laud included within tlie limits of the Pacific Railroad grant, before the filing of the map of definite location of the road showing that such land was included, and immediately on the survey of the land followed his settlement by an entry under the homestead law, acquired title as against the railroad company.</p> <p>5. Same — Settlement and Improvement — Effect of Finding by Land Department.</p> <p>A finding by the land department that a homestead entryman has complied with the requirements of the law as to settlement and improvements is conclusive upon the courts.</p>

This was an application to review a decision of the hoard of general appraisers affirming a decision of the collector of the port of New York in regard to the classification for duties under the act of October 1, 1890, of certain merchandise.

On Demurrer to Bill. This is a suit for the infringement of a trade-mark. The bill of complaint alleges: That complainants are citizens of the republic of France. That the respondent is a California corporation, having its principal place of business in the city and county of San Francisco.

<p>1. Jurisdiction of Federal Court — Amount in Controversy — Trade-Mark Burrs.</p> <p>In a suit to enjoin the further infringement of a trade-mark, and for an accounting, the amount in controversy is the value of the trade-mark to be protected, and not the amount of damages ■which may have been sustained.</p> <p>2. Trade-Marks — Infringement—Sale of Counterfeit Labels.</p> <p>Tiu- keeping for sale and selling of labels made in imitation of complainant's, with intent that, they shall be used, and which are used, by tiie purchaser in palming off on the public, as complainant’s, goods not made by him, gives a right of action for infringement.1</p>

<p>This is a suit in equity for infringement of a patent.</p>

This is an original bill in the nature of a supplemental bill, filed by "Walter Baker & Co., Limited, a new corporation, as assignee of the original complainant, Walter Baker & Co., Limited. To such bill the defendant demurs.

» This was an action by Charles Johnson against F. C. Austin Manufacturing Company to recover for personal injuries sustained by plaintiff while in the employ of defendant. There was a verdict and a judgment for plaintiff! in the circuit court, and the defendant brings error.

This was an action, upon a policy of insurance against accidents, to recover for a death caused by drinking poison under the mistaken belief that it was a harmless medicine.

<p>On Motion to Dissolve Restraining Order.</p> <p>This hill is brought to obtain an injunction against the sheriff of the city and county of San Francisco, the Donohoe-Kelley Banking Company, and other creditors of "the Francis-Valentine Company, from selling, disposing, or interfering with the property of the Francis-Valentine Company until after proceedings can he brought in the bankruptcy court to have the ■ Francis-Valentine Company adjudged a bankrupt The hill, among other things, alleges that on August 31, 1898, the Francis-Valentine Company was, and still is, insolvent; that on said date it caused its property to be attached by the Donohoe-Kelley Banking Company, with intent to prefer said company, in violation of the national bankruptcy act, and to defraud, binder, and delay complainants and other creditors; that no defense was made to said suit; that judgment has been obtained therein, execution issued thereon, and property advertised for sale on October 10, 1898; that said proceedings wore instituted by fraud, collusion, and conspiracy, with the intent and purpose to secure a sale of the property before any petition could be filed in the bankruptcy court by the creditors, and to deprive said creditors of their just rights in the premises under the provisions of the bankruptcy law; that voluntary proceedings in bankruptcy could not be instituted by said Francis-Valentine Company, it being a corporation. Upon the filing of the hill complainants obtained an order requiring the respondents to show cause on October 20, 1898, why an injunction should not issue, and that in the meantime the respondents, and each of them, be restrained, etc. On October 12, 1898, the respondent the Donohoe-Kelley Banking -OomxJany filed an answer denying all the allegations of the complainants’ bill, charging fraud, conspiracy, and collusion, or that the attachment suit was instituted for the purpose of hindering, delaying, or defrauding any of the creditors of the Francis-Valentine Company, or with the intent, understanding, or design of giving to any creditor an unlawful xR’eference; “that said suit was commenced and said attachment was issued and levied upon the xiroperty of said Francis-Valentine Company by said Donohoe-Kelley Banking Company for the sole and only purpose of obtaining the amount due from said Francis-Valentine Company to said Donohoe-Kelley Banking Company in the manner and by the means and methods x>i*ovided by law,” etc. Upon the filing of this answer the Donohoe-Kelley Banking Company moved to dismiss the restraining order. The motion was heard upon the bill of- complaint and answer.</p> <p>The following are the provisions of the bankruptcy act relating to the jurisdiction of the district court, referred to in the opinion:</p> <p>“Sec. 2. That the courts of hankrux>tcy as hereinbefore defined, viz. the district courts of the United States in the'several states, * * * are hereby ■made courts of bankruptcy, and are hereby invested, within their respective territorial limits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable tliem to exercise original jurisdiction in bankruptcy proceedings, in vacation in chambers and during their respective terms, as they axe now ox may be hereafter held, to 4 4 4 (2) allow claims, disallow claims, reconsider allowed or disallowed Claims, and allow or disallow them against bankrupt (‘states; (3) appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it absolutely necessary, for tlie preservation of estates, to take charge of the property of bankrupts after tlie filing of the petition and until it is dismissed or the trustee is qualified; 4 4 4 tí) cause The estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided; 4 4 4 (15) make such orders, issue such process, and enter su'cii judgments in addition to those spo( ideally provided for ns may be necessary for tlie enforcement of the provisions of tills act. 4 4 4</p> <p>“8oe. 23 — c. The United States circuit courts shall have concurrent jurisdiction with th(‘-courts of bankruptcy, within their respective territorial limits, of the offenses enumerated in this act. 4 4 4</p> <p>“Sec. (>7. Lions. — f. That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any rime within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and \oid in ease he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall bo deemed wholly discharged and released from the same, and shall pass to tlie trustee its a part of the estate of the bankrupt, unless the court shall, on duo notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved Cor the benefit of tlie (‘State; and thereupon the same may pass to and shall be preserved by tlie trustee for the benefit of the estate as aforesaid.”</p>

<p>This is a proceeding by the United States against Henry Campe & Co. to recover a fine for a violation of the internal revenue law. Heard on demurrer to the complaint.</p>

This is a petition by the United States to review the action of the board of general appraisers in sustaining a protest of importers, the question involved being tbe precise time when tbe Dinglcy law went into effect.

This is a suit in equity by Myer M. Kann and others, partners under the name of the Pittsburgh Crushed-Steel Company, Limited, against the Diamond Steel Company, to restrain the defendants from imitating complainant^’ trade-mark. From a decree dismissing the suit, complainants appeal.

<p>1. Patents — Validity—Maoiune for Manufacture of Axes.</p> <p>The Taylor patent, No. 500,084, for an improvement in the manufacture of axes, which covers a new form of machine for making the body of the ax, consisting of a die with a yielding bumper or plunger, which acts as an anvil against the head of the ax in forging, preserving its form while preventing the formation of fins, is valid, the invention being novel, not anticipated, and of great utility, as attested by its general use.</p> <p>2. Same — Suit foe Infringement — Defense.</p> <p>The fact that an infringing machine does not perform its work as well as the one infringed is not a defense.</p>

Final hearing on bill in equity for infringement, of letters patent of the United States lío. 342,941, issued June 1, 1886, to William A. Thrall, for an improvement in railway tickets, the claims of the patent being as follows: “(1) A railway ticket, B, consisting of a continuous strip or ribbon divided into a series of consecutive numbered parallel spaces, and arranged in alternate folds -within a flexible folding cover, A, provided -with a metal straightedge, substantially…

This is a suit in equity for the infringement of a patent for a process used in the manufacture of Bessemer steel by the direct method.

This was a libel by William T. Donnell against the Boston Towboat Company for the sinldng of the schooner Josiah R. Smith in a collision. From the decree of the circuit court, both parties appeal.

<p>In the Matter of the Distribution of Prize Money.</p>

This is an appeal from a decree sustaining a demurrer to and dismissing a MU to restrain the appellees from diverting from their natural channel any of the waters of the Culebra river, in the state of Colorado, other than such as they may show themselves lawfully entitled to for irrigation and domestic purposes.

<p>1. Fraudulent Conveyances — Deeds to Children — Consideration.</p> <p>Deeds executed by an insolvent debtor, who was largely liable as indorser of the notes of a corporation in which he was a large stockholder, conveying property to his children for an inadequate consideration, which was not paid, hut was to be paid as might thereafter seem best calculated to delay action by the creditors until the company could pay, were fraudulent as against existing creditors.</p> <p>2. Same — Withholding Deeds from Record — Effect on Subsequent Creditors.</p> <p>Where deeds executed by an insolvent debtor to his children for the purpose of protecting the property from creditors holding notes on which he was an indorser were withheld from record, that renewals and new loans might be made, and in the hope that payment might eventually be made by the principal debtor, such concealment was fraudulent, and rendered the conveyances fraudulent as to all debts made or renewed after the execution of the deeds, and before they were recorded.</p> <p>8. Same — Subsequent Mortgagee — Bona Fide Purchaser.</p> <p>One who in good faith makes a loan on the security of a mortgage of real estate, as against others having a right to set aside the conveyance of such real estate to the mortgagor as fraudulent, occupies the position of a bona fide purchaser, although the proceeds of the loan were paid to him in satisfaction of an obligation of third parties, which was fully satisfied and surrendered. In such case the consideration for the mortgage was not the pre-existing indebtedness, but there was a complete novation of indebtedness.</p> <p>4. Same — Rights of Creditors and Subsequent Purchasers — Marshaling of Assets.</p> <p>Where a fraudulent grantee made a valid mortgage on the property conveyed, with other property, on a finding by a court of equity that the creditors of the grantor are entitled to set the conveyance aside, the mortgagee will be required to first exhaust the other property covered by his mortgage.</p>

<p>1. Corporations — Suit by Shareholder— Equity Rule 94.</p> <p>A suit in equity by a shareholder against a corporation and its directors asking for an accounting by other shareholders for shares illegally paid, for an inspection of the books, for an examination into the condition of the association, for an injunction against proceedings by the directors to wind up the association, and for the appointment of a receiver, is within equity rule ill.</p> <p>2. Equity Practice — Inspection op Books.</p> <p>On a bill for an accounting, when the cause is at issue, a motion to inspect the books will not be granted if equivalent relief can be obtained by a subpoena duces tecum requiring the production of the books before the examiner.</p>

<p>National Bank in Charge of Examiner — Lf.vy of Executions.</p> <p>The fact tbat a national bank, for whicli no receiver has yet been appointed, is in charge of an examiner appointed by the comptroller to investigate its affairs, does not exempt its tangible assets from levy under execution upon final judgment.</p>

This is an appeal from a decree sustaining the defendants’ demurrer and dismissing the bill of complaint. The complainants are James Q. Barcus, Henry A. Horton, Richard A. Edwards, and John M. Thompson, citizens of Indiana, and the defendants are Erasmus W. Gates, Joseph P. Hubbard, Robert E. Craig, the Virginia Marl Phosphate Company, and the American Plant-Food Company, all citizens of Virginia.

<p>Submitted on issues presented by the bill filed by the interveners, and the answers thereto.</p>

This is an appeal from a judgment which sustained a demurrer to a bill brought to devest the title to certain land in section 30, township 63 N., of range 11 W. of the fourth P. M., in the state of Minnesota, from the appellees, Houghton E. James and others, and to vest it in the appellant, on the ground that through an error in law the secretary of the iuterior caused a patent to this land to be issued to one Craig, from whom the appellees derived their claim, when, in the…

<p>Motion for a rule upon a witness to require him to produce certain documents, and to answer questions relating thereto.</p>

<p>1. Trial — Submission to Jury of Special Issues.</p> <p>It is not reversible error, under the practice in North Carolina, to refuse 1o submit to the jury an obscurely worded snecial issue tendered, where.' such issue is fairly submitted, and more fully and clearly staled In the general charge of the court.</p> <p>2. Same — Instii uctions — Construction.</p> <p>An expression used in an instruction, or a, special issue submitted, though in itself susceptible of two meanings, is not misleading when, as applied to the evidence, its meaning is plain.</p> <p>3. Same — Special Findings — Construction.</p> <p>Though a special issue submitted to a. jury may be somewhat ambiguous, the validity of a judgment based thereon is not affected where the answer to a second issue, submitted with it, makes the actual finding of the jury under the former plain.</p> <p>4. Fidelity Insurance — Liability of Surety — Concealment of Facts by Employer.</p> <p>Wlille under a bond insuring the fidelity of an employs, which requires the employer to make disclosure of any dishonesty of the employe known to him, the employer is not bound to use diligence to discover such dishonesty, yet where, in the exorcise of ordinary and reasonable care and prudence in giving attention to facts known to him, he could not have failed to draw the inference that the employs was a defaulter, he may properly be charged with knowledge of such J'act.1</p> <p>5. Same — Suit on Bond — Fraud in Obtaining Renewal.</p> <p>The cashier of a bank, who had furnished a bond signed by a fidelity insurance company, which had from time to time been renewed, on the occasion of one expiration refused to renew. Two months afterwards, he left the city without notice to the hank, taking- with him $5,000 of the hank’s money. Two or three days later the president of the hank, with knowledge of such facts, but without disclosing them to the company, caused the renewal premium to he paid, and the bond renewed. Held, in an action by the hank to recover on the bond for the $5,000 defalcation, a finding by the jury that such facts were suppressed by plaintiff’s officer for the purpose of defrauding the defendant by inducing it to make the renewal justified a judgment for defendant.</p> <p>6. Witnesses — Evidence Affecting Credibility — Prior Statements.</p> <p>Where a witness testified positively to a certain conversation with a second witness, which the latter denied, it was competent to show a prior statement made by the first witness, in which he claimed to have had the conversation with either the second witness or his partner.</p> <p>7. Fidelity Insurance — Action on Bond — Waiver of Defense.</p> <p>The fact that a surety company which was surety on the bond of a bank cashier, after notice of his defalcation, sent an agent to examine the books of the bank, and also took steps for the arrest of the defaulter, does not estop it to deny the validity of the bond on discovering that its renewal was procured by the hank after the defalcation took place, and the cashier had absconded, where the bank was placed in no worse position by such acts.</p>

<p>1. Kelease of Surety — Alteration of Instrument.</p> <p>Sureties on a bond conditioned for the payment of royalties called for by a contract of license are not released by an alteration of such contract which can in no way affect the obligation of the bond, though made without their knowledge.</p> <p>2. Same — Alteration or Collateral Agreement.</p> <p>After the execution of a contract of license for the use of certain patented machines, which provided that the licensor should furnish additional machines if called for, by agreement between the parties a typewritten slip was pasted on the margin opposite the provision relating to the additional machines, which read: “Said machines to' be shipped said licensee within 30 days after written notice is 'given to licensor.” Held, that such slip did not constitute an alteration of the original contract affecting a surety, but was simply a memorandum of a subsequent and collateral agreement. 81 Fed. 993, reversed.</p>

<p>1. Evidence — Negotiations Preceding Written Contract.</p> <p>The circumstances out of which a written contract arose, and which surrounded its execution, may be shown for the purpose of ascertaining its .subject-matter, and the standpoint of the parties in relation to it, but not to vary the contract by addition or substitution.</p> <p>3. Federal Courts — Separate Jurisdiction at Law and in Equity.</p> <p>By the constitution and statutes of the United States the jurisdiction of the federal courts at law and in equity is separate and distinct, the equity jurisdiction being limited, however, to cases where there is not a plain, adequate, and complete remedy at law; and a suitor must proceed in that forum which is appropriate to the ease. If the remedy at law is plain, adequate, and complete, whether the right to be enforced is legal or equitable; the defendant has the right to trial by jury, and the action must be at law; while, if the object and nature of the remedy sought are equitable, he has the right to have the case determined by a court of equity, in which he can set up an equitable defense, which he cannot do in an action at law, and of this right he cannot be deprived' at the opition of the plaintiff.</p> <p>8. Action — Legal or Equitable — Grounds of Equitable Jurisdiction.</p> <p>A case' may be sustained in equity on a legal right if the object and nature of the remedy sought are equitable, or where, though the right may be clear at law, a court of law is not able to afford so complete, adequate, or efficient and practical a remedy as a court of equity.</p> <p>4. Same — Violation of Trust — Following Trust Property.</p> <p>The owner of certain bonds and mortgages delivered them, indorsed in blank by the payee, to a trust company, taking in return a certificate of deposit for a certain sum, and a contract providing that full title to the securities, with full power of disposition, should vest in the trust company', but by7 which it undertook for itself, its successors and assigns, to judiciously handle the same, and to account to the other party for a share of the proceeds above the amount of the certificate of deposit. The trust comjiany, in violation of this trust, transferred the securities to a bank as collateral security for a past-due indebtedness of its own; the bank, however, having no knowledge of the trust. IMA, that the bank took the legal title, and the only Interest remaining in the cestui que trust under the contract was an equitable one to enforce the right to the accounting therein provided for against the bank as a transferee without consideration, which interest would not support an action at law against the bank for conversion.</p>

This action was brought in the United States circuit court for the Western district of Missouri, by W. A. Latimer, receiver of the First National Bank of Sedalia, to recover from George H. Scott an assessment made by the comptroller of the currency upon the capital stock of the named bank, it being claimed that Scott owned and held 50 shares of the stock.

These were suits in equity by the Ailing ton & Curtis Manufacturing Company and the Knickerbocker Company against the Globe Company and Thomas Lee, respectively, for tlie infringement of certain patents.

<p>This is a suit in equity by George Allen against George W. Grimes for the infringement of a patent.</p>

<p>Cargo-Damage — Seaworthiness—Leak in Ballast Tank — Heavy Weather —Sluice-Valve in Bulkhead not Watertight — Inattention to Pumps —Harter Act — Management of the Ship.</p> <p>Chemicals and rags being damaged by sea water from leaks in a steamer’s ballast tank, which was found sprung and the rivets started and broken after heavy weather; held, upon evidence of first-class construction, careful inspection and good stowage, that the leak was sufficiently explained' by the heavy weather that preceded it, and that the vessel was seaworthy; also held (2) that lack of proper attention to the pumps, which might have earlier disclosed the leak and prevented the damage, was negligence in the “management of the ship,” for which the ship was not liable under the Harter act; also Jteld (8) upon proof- that the sluice-valve in the bilges connecting- compartments 4 and 5 was not watertight, that this fact did not constitute unseaworthiness, even if it existed at tho commencement of the voyage, because not a failure in any necessary requirement, and because any leak therefrom would be sufficiently guarded against by proper attention to the pumps. The eomifiaint was therefore dismissed.</p>

<p>Anchorage Ground — Wrecking Operations — Aot of May 10, 1888 — Application for Permit within 24 Hours Sufficient under Requirement of Immediate Notice.</p> <p>Upon the sinking of the steamer Oatskill by collision in the middle of the Harlem river, the wrecking derricks Monarch and Will went to her assistance and made fast to her. Though touching bottom the Oat-skill drifted with the tide, raking the M. and W. with her, and on the following morning she was towed by them to the flats on the west side 'of the river. In an action to recover a penalty for anchoring outside of anchorage ground (1 Supp. Rev. St. p. 580), it appearing that the claimants had received permission from the department to go to the assistance of wrecks, provided immediate notice thereof was given; held, that notice mailed the same day to the department and an actual permit Issued within 24 hours, wore sufficient, to relieve the vessel from any penalty, without reference to the question whether the act of congress embraced anchoring for the purpose of wrecking operations or not.</p>

<p>1. Tug and Tow — Tow in Control of Navigation.</p> <p>The, steamer O. in coming to her wharf under her own steam and in charge of her pilot, but with the assistance of several tugs, pressed against Float No. 4 in a high wind, so as to cause the float to break away partly from her mooring; held that the tug R.. one of the helpers, was not liable for the consequent damage, it not appearing that the R. was chargeable with any independent act of negligence of her own, but was acting wholly under the direction of the si earner and her pilot.</p> <p>3. Saul — Duty to Carry Spark Lines.</p> <p>It further appearing that after the tug had partly broken loose, she was held by one line for a considerable time, and might have been held fast had other spare lines been on board to make good the broken ones, held that the float was also in fault for not having spare lines, and was therefore liable for the subsequent damage done by her breaking completely adrift.</p>

<p>Tug and Tow — Stranding on Unknown Rook — -New Channel — Govebnment Deedo ing — Tug Exonerated.</p> <p>The libelant's barge was run upon an unknown rock, which was somewhat to the westward oí the old channel way in the Harlem river and about opposite Morris dock. Upon proof that during four years preceding there had been considerable government dredging in widening and deepening the channel way; that In the consequent changes of customary navigation, the old channel way was partly occupied by boats moored to the dock, and that the ordinary practice of the boatmen in recent years had be,on to go still further to the westward than whore this rock was; held that the tug was not chargeable with negligence.</p>

<p>1. Appral — Final Order.</p> <p>An order setting aside a sale of the property of a corporation made in disregard of an injunction issued in the same suit is a final order, from which an appeal lies.</p> <p>2. Corporations — Suit by Stockholder for Dissolution — Fraudulent Conveyance by Corporation Pendente Lite.</p> <p>In a, suit by a stockholder against the corporation and other stockholders and directors to wind up and liquidate the affairs of the corporation on the ground of its insolvency, an injunction was issued restraining the corporation from making a threatened sale of its property. Notwithstanding such injunction, the corporation sold and conveyed Its property to other defendants, who were stockholders and In control of its affairs, for an inadequate consideration. On a showing of such fact, the court set aside the sale, and ordered the property reconveyed. The grantee reconveyed the property, but on the same day took a mortgage from the corporation thereon. Held, that such facts justified the court iu finding that, the action of the defendants was in pursuance of a fraudulent scheme to give a preference, and to defeat the distribution of the property by the court according to law in the pending suit, and In setting-aside the mortgage, and refusing to decree a lien on the property in favor of the mortgagee for the amount paid by him on the previous sale.</p>

Cross Appeals from the Circuit Court of the United Slab's for the Western District of North Carolina. Tins wtis a suit in equity by Voorheis, Miller & Co. against William M. Blanton and others to set aside certain conveyances alleged to have been made in fraud of creditors. From the decree entered by the circuit court both parlies appeal.

<p>1. Vendor’s Lien — Principle Governing Enforcement — Inequitable Conduct of Vendor.</p> <p>The principle on which a vendor’s lien in equity rests is one of natural justice, — that one who gets possession of the estate of another ought not, in conscience, to be allowed to keep it without paying the consideration; and the same principle equally precludes the creation of such a lien on behalf of one who, after transferring the estate, forcibly takes it back and appropriates it to his own use, thereby largely depreciating it in value.</p> <p>B. Same — Joint Suit by Several Vendors.</p> <p>Where a contract for the sale of property for a gross sum Is made by a number of owners, who hold different portions of it in severalty, and a suit is afterwards brought by them jointly to establish and enforce a vendor’s lien on all the property, the contract must be treated as joint, for all purposes of the suit; and a defense as to one complainant will defeat the suit as to all.</p> <p>8. Same — Bulks Applied.</p> <p>Several owners of mining properties entered into a single contract for its sale to a foreign corporation for a gross price, to be paid in part in the stock of the corporation; agreeing to convey a good and indefeasible title. In accordance with the contract, and on receiving part payment, they executed conveyances covenanting for perfect title. A portion of the property, which was the most valuable, was held as claims under mining locations, the title remaining in the United States. Afterwards, having become dissatisfied with the management of the property, and claiming that it was not in accordance with the contract, the grantor of the undeeded claims made a relocation thereof, ejected the company’s representative, and took possession of and worked the same for his own benefit until ousted by ejectment proceedings brought by the company. Held, that a court of equity would not, at the joint suit of the Yendors» establish and enforce a vendor’s lien for the unpaid purchase money,</p>

<p>1. Appeal and Error — Procedure in Trial Court after Reversal.</p> <p>Whore a judgment is reversed by the circuit court of appeals, and by its mandate the circuit court is directed to order a new trial, it is proper for such court to refuse to make the order conditional on the payment of the costs of the former trial.</p> <p>2. Pleading — Amendment—Discretion of Court.</p> <p>The refusal of a trial court to permit the amendment of pleadings is within its discretion, and will not bo reviewed unless clearly unreasonable.</p> <p>3. Review — Harmless Error.</p> <p>Rulings on the admission of evidence, though erroneous, are without prejudice, and immaterial to be considered on appeal, where the court subsequently, and properly, directed a verdict, because of matters not controlled or affected by such evidence.</p> <p>4. Trial — Direction of Verdict.</p> <p>Where it is clear to a trial court that, as a matter of law, no recovery can be had by the plaintiff upon any view winch can properly be taken of the facts the evidence tends to establish, a verdict should be directed for the defendant.</p>

<p>1. Contracts — Construction—Statement op Quantity.</p> <p>In the construction of a contract, of sale which specifies the quantity of the article or thing sold, such specification will be regarded as material and determinative, notwithstanding its qualification by “more or less” or “about,” unless it is apparent or fairly Inferable from other parts of the contract that a particular lot of goods was intended to bo sold, or' enough thereof to satisfy a particular need, without, regard to the precise quantity, and that the specification is merely an estimate of the probable-quantity thereof.</p> <p>2. Indians — Timber on Reservations — Right to Cut and Remove.</p> <p>The title to the timber growing or standing on Tndjan reservations Is in the United States, and, in the absence of legislative" authority, Indians have no right to cut or dispose of it.</p> <p>3. Same — Contract por Sale op Timber from Reservation — Limitation as to Quantity.</p> <p>It was not tlie purpose of congress, by the act of February ICS, 1889 (25 Stat. p. 673, c. 172), empowering the president, in his discretion, from year to year, to authorize the Indians on a reservation to cut and sell or dispose of the dead timber thereon, to permit a few to monopolize the privilege; nor can it be supposed that such has heretofore, been the purpose of the president, in granting such authority; and where a contract made by an Indian to cut and deliver to a purchaser a certain quantity of timber, “more or less” or “about,” to be taken from the (lead timber'on a reservation, is approved by the president, the quantity stated limits the amount, which can be sold, or to which the purchaser can obtain title thereunder, • allowance being made only for small and accidental variation.</p> <p>4. Same — Suit by United States — Recovery op Timber Illegally Sold by Indians.</p> <p>The fact that the purchaser had paid for (under such contract.) a large quantity delivered and received in excess of that stated in the contract, does not give him title thereto, and is no defense to a suit for its recovery by the government.</p> <p>5. Same — Powers of Government Agents.</p> <p>An agent of the government charged with the duty of superintending the cutting and removal of timber under such contracts cannot, by his acquiescence in the delivery of quantities in excess of those called for by the contracts, bind the government, the provisions of the contract being obligatory upon him, as well as the parties thereto.</p> <p>6. Same — Construction of Statute — Dead Timber.</p> <p>The act of February 16, 1889 (25 Stat. p. 078, e. 172), empowering the president to authorize the cutting and removal by Indians from their reservations of “dead timber, standing or fallen,” includes in such designation, not only standing trees that are entirely dead, but also those which are so vitally injured that a prudent landowner would cause them to be forthwith cut to preserve their value. It does not include living and uninjured trees merely because they stand among trees a large proportion of which are dead.</p> <p>7. Custom and Usage — Affecting Construction of Statute — Generality and Uniformity.</p> <p>A custom or usage, if ever admissible to affect the construction of an act of' congress, by altering the ordinary meaning of ordinary words or phrases, must be shown to have been so prevalent in all sections whore the law was to become operative, and so universal in such sections, as to leave no room for doubt that it was known to the lawmakers, and that the statute was enacted with reference thereto.</p> <p>8. United States — Estoppel by Acts of Agent — Scope of Authority to Bind the Government.1</p> <p>An agent of the United States charged with the duty of superintending the cutting and removal of dead timber from an Indian reservation under certain contracts, to the end that no green or growing timber should be cut, is vested with a discretion to determine whether injured trees are so badly hurt that they ought to be classified as dead timber within the statute; and the government is bound by his decision, if made in good faith, while exercising proper care and diligence in the performance of his duties. But the parties to such contracts cannot found rights upon his derelictions of duty, nor obtain a title to living and uninjured trees, the cutting of which was prohibited by law, because he assented to the cutting or was cognizant thereof.</p> <p>9. Same — Power of Agent to Legalize Trespass.</p> <p>Such superintendent could not legalize a trespass committed by the cutting of living trees in violation of the statute by agreeing, after they were cut and had thus become “dead timber,” that they might pass under the contract; and such agreement cannot estop the government from recovering the value of such trees.</p> <p>10. Indians — Cutting Dead Timber — Rights under Approved Contracts.</p> <p>It is not unlawful for an Indian having a contract, approved by the president, to cut and deliver a certain quantity of dead timber from a reservation, to employ other Indians to cut and deliver timber thereunder in his name. ></p> <p>11. Trover — Damages Recoverable — Expenses.</p> <p>Expenses of a plaintiff in trover are only recoverable where he actually recovers the property, which fact is pleaded in mitigation of damages. Where the property is not recovered, his recovery is limited to its market value at the time and place of conversion, with interest.</p> <p>12. Indians — Sale of Timber — Payment on Contract.</p> <p>Under the regulations established by the president for the cutting of dead timber on Indian reservations, pursuant to the act of February 1G, 1889, 10 per cent, of the proceeds of such timber when sold is required to be paid into the poor fund of the tribe. Held, that such a payment made directly into such fund by a purchaser, under the terms of his contract, was not a payment to the United States, for which such purchaser was entilled to «-edit on a recovery by the government against him for a wrongful conversion of a part of rho Umber received and paid for under such contract.</p>

<p>Tried before the court without a jury.</p>

<p>1. Suretyship — Construction of Contract.</p> <p>A contract of suretyship should be strictly construed, and not extended by implication.</p> <p>2. Same — Varying Terms of Conteaot.</p> <p>Defendant became surety on the bond of a government contractor, which under the statute was conditioned for full payment by the contractor to all persons supplying lumber or materials for the work. Plaintiffs furnished materials to the contractor, and during the progress of the work were paid by him, from its proceeds, sums in excess of the value of such materials; but plaintiffs (though having knowledge of the suretyship), without notice to defendant, applied such payments upon a prior indebtedness of the contractor, and took notes from him which extended the time of payment for the materials beyond the time for completion of the contract, and until after the contractor became insolvent. Held that, as to defendant, plaintiffs were bound to apply such payments on the indebtedness arising under the government contract, and defendant was released from liability therefor..</p>

<p>In Error to the Circuit Court of the United States for the District of Washington.</p> <p>On February 12, 1894, the defendant in error, Robert Abrams, entered into a contract with one E. E. Bulson, by the terms whereof the said Bulson was to take possession of the farm of the defendant in error for a period of two years, the defendant in error to furnish all seed, teams, farming utensils, and the labor of one man, and the said Bulson to pay for all the other labor necessary for putting in, harvesting, and threshing the crops, and for all other labor performed on the farm, and certain other expenses, in consideration whereof he was to receive one-third of all the crops raised on the premises, and one-third of the increase of the stock. In 1895, Bulson, having exhausted his means, became unable to perform his part of the agreement. A now and verbal agreement was then entered Into, by the terms whereof the defendant in error was to pay all the men and- all the expenses of operating the farm, and was to have the possession of the crops, and sell the same, and was to charge Bnlson with the expenses so assumed, and was to credit Mm with the proceeds of one-third of the crop. What Bnlson was to receive is succinctly expressed in the following question and answer: ‘‘Q. What was he to receive out of the crop, if anything? A. Ho was to receive one-third of wliat was left,- if there was anything left.” The same arrangement was, by agreement, subsequently extended over the year .1890. In pursuance of this verbal contract, the defendant in error went upon the promises with his sons, to assist in the harvesting and haying, employed a large number of men, and furnished all thé supplies required for conducting the farm. Having advanced, as he believed, an amount which exceeded the value of one-third of the crop, he took out insurance on GOO tons of the hay which had been made under the agreement, and which had been stored in a barn. He made an oral application for insurance to the agents of the plaintiff in error, and iruly answered all questions which they asked him. Iso question was asked concerning his title to the property. On August 19, 1S9G, the policy was issued and delivered to the defendant in error, insuring the hay against loss by fire in the amount of ¡52,30(1 On October 10, 1896, the barn and its contents were destroyed by The loss of the hay was adjusted at the sum of §2,412. The policy contained the usual stipulation in regard to the ownership of the property by the insured, as follows: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * * * the interest of the assured be other than unconditional and sole ownership.” To the action brought by the defendant in error to recover upon the policy, the insurance company made three defenses: First. That the policy was void because the interest of the insured in the property was other than that of unconditional and sole ownership. -Second. That, in making- his proofs of loss, the insured had made oath that the hay belonged exclusively to him, and that no ocher person had any interest therein, and that thereby he avoided the policy by violating the condition following: “This entire policy shall be void if the insured has concealed or misrepresented, in writing- or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated therein, or in case' of any fraud or false swearing by the insured touching any matter relating 1o this insurance or the subject thereof, whether before or after loss.” Third. That, as the insured was the owner of only an undivided two-thirds of the hay, his loss was only two-thirds of the value thereof.</p>

<p>In Error to the Circuit Court of the United. States for the District of Maryland.</p> <p>This was an action by Rachel S. W. Gootee against the Supreme Council American Legion of Honor to recover on a benefit certificate. Prom a verdict and judgment in favor of the plaintiff, defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>This was a suit by Penumbra Kelly against the United States to recover for fees and disbursements as United States marshal, which were disallowed by the treasury department. From a judg mend for plaintiff, defendant brings error.</p>

This was a prosecution for entering into a conspiracy to counterfeit and utter counterfeit coins of the United States. From a judgment of conviction, Emmett Taylor, one of the defendants, brings error.

This was a libel for damages for a collision, by Joseph Prada against the steamer Captain Weber, — the Union Transportation Company, claimant. From a judgment for libelant, the claimant appeals.

<p>Inteknal Revenue — Construction oe Act oe 1898 — Stamps on Receipts I’iiom Carriers.</p> <p>The provision of the revenue act of 1898 requiring carriers to affix stamps to receipts given to shippers contains no express language prohibiting a carrier from requiring* payment for snch stamp from the shipper, in the absence of which such requirement is lawful.</p>

This was au action brought, in 1886, .by the firm of Meyer & Dickenson, in Hie court.of common pleas of the county of Philadelphia, and subsequently removed to tlie circuit court of the United States, against .John Oadwalader, collector of customs, to recover an alleged excess of duties exacted by the said collector, filie importations in question consisted of velvets, laces, and gauzes, composed of silk, or of which silk was the component material of chief value.

<p>Bankruptcy — Claim in Litigation — Fraudulent Assignments — Assignee’s ' Claims upon the Fund Recovered — Charges Thereon — Statute of Limitations.</p> <p>Upon D.’s bankruptcy in 1878, a large claim in a suit brought by the bankrupt 15 years before and then pending had been assigned some time previously to his son C. Shortly after D.’s discharge, he took a reassignment of the claim to himself from C.’s administratrix. Both transfers were without any pecuniary consideration. D., and after his death, his representatives, continued the litigation until 1895 when the fund was recovered by D.’s administrator. Upon a bill filed by D.’s assignee in bankruptcy, hold, that both transfers of the claim were without consideration and void as to creditors; that the assignee was entitled to the fund remaining, subject to the payment of tte proper claims and allowanees In favor of those who had prosecuted, preserved and collected the fund. Hdd (2) that the two-years statute of limitation did not begin to run until the fund was realized.</p>

The bill alleged that in 1892 the defendant, Ellis, was a general agent for complainant, Noel, for the sale of a medicinal preparation in the form of a powder, pnt up in envelopes, and extensively advertised and known to the public by the name of “Vitae-Ore,” or the initial letters “V-O.” In 1895, while agent, Ellis began to advertise and sell a preparation of Ms own, similarly dressed, and called “Vitalizing Ore,” or “Vitalizing T Ore.” Ellis sold his preparation generally,…

<p>1. Patents — Duplicity—Separate Machines Used Together.</p> <p>Separate machines may he included in the same patent, though distinct and independent, where each is the complement of the other, in the accomxilishment of the same general end.</p> <p>2. Same — Infringement.</p> <p>Where two machines, both new and which co-operate to accomplish a single result, are included in the same patent, the wrongful use of either, though disconnected from the other, is an infringement.</p> <p>8. Same — Suit for Infringement — Multifariousnbss of Bill.</p> <p>Where the manufacture, vending, and use of articles in the form in which they are made and sold by defendant are each infringements of two separate patents owned by plaintiff, one covering the articles themselves and the other the package in which they are put up, which conduces to their convenient use and adds largely to their market value, the plaintiff may, and should, join the causes of action for the infringement of the two patents in the same bill.</p> <p>4. Same — Validity—Evidence.</p> <p>A patent is itself prima facie evidence of its validity, and a defendant, to successfully attack it, must produce proof leaving no fair doubt as to its invalidity.</p> <p>5. Same — Invention—Simplicity of Device.</p> <p>In determining whether an article which appears simple embodies invention, the fact that it supersedes all other apxiliances, or that a useful and successful commercial result has been attained through its recognition by the public in extensive use, has a controlling, if not a conclusive, effect.</p> <p>6. Same — Button Fasteners..</p> <p>The Wilkins patent, No. 266,941, for a button fastener, is not invalid for want of invention, and not anticipated.</p> <p>7. Same — Holder for Button Fasteners.</p> <p>The Wilkins patent, No. 429,82S, for a holder for button fasteners, is valid, and not anticipated.</p>

<p>Shipping — -Right of Passenger to Rescind Contract — Reported UnseaWORTHINESS OF VESSEL.</p> <p>Passengers wbo have paid their passage on a vessel cannot be held to their contract, but are entitled to rescind and recover their passage money, where, before sailing, the vessel was reported in the press as rotten and unsafe-, and they were justified by their information and her appearance in believing her so, though she may in fact have been staunch and seaworthy.</p>

<p>Salvage — Santiago de Cuba — Stranding—Wear and Tear to Salving Ship —Sanding of Machinery.</p> <p>Tbe steamship N. having stranded on Colorado Skoals in tbe harbor of Santiago de Cuba, after several attempts to pull her off by the large steamer Mamaluke and the tug Colon, was got off on the fourth day. A large claim of several thousand dollars was interposed by the steamer for injuries to the machinery by sanding, the wear of bearings and the necessary' expense of docking and repair, besides payment for salvage service; but the amount of injury during the service not being definite or clearly separable, field that the latter should be treated as among the incidents and risks of the service; and that the Mamaluke, considering her risks, and the danger and value of the N. ($125,000) should be allowed, including $400.82 for coal and broken hawsers, the sum of $7,-100.84; and the Colon the sum of $815.1</p>

<p>Collision — Signals Misunderstood — Delay in Backing — Inspectors’ Rule 3.</p> <p>Tlie steamship Alvena outward bound through the Swash and Gedney channels, and the British Queen inward bound through the Gedney and Main channels, came in collision near the junction of the Swasli and Main channels; this was caused, as found upon very conflicting evidencio, by a misunderstanding of the signals given and heard, in consequence of which each vessel was navigated contrary to what was expected by the other; field upon a review of all the evidence and circumstances, that the failure by each vessel to navigate as expected by (he other and in accordance with the signal as understood, ought to have been seen by each steamer and recognized before the danger became; imminent, and a considerable time before either steamer reversed; and that each vessel was in fault, therefore, for not reversing until they had come within one-fourth of a mile of each other, instead of when one-half a mile apart, a,s required by rule 3 of the supervising inspectors, which requires in such circumstances that vessels when within one-half a mile of each other shall immediately reduce their speed to bare steerage way.</p>

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

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

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

<p>Appeal from the 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 District of Colorado.</p>

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

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

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

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

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

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

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

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

<p>Appeal from Lie Circuit Court of 1lie United States for the Southern District of Illinois.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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