Volume 9 — Federal Reporter

Petition by the receivers of the Philadelphia & Reading Railroad Company, setting forth that the rolling stock which passed into their possession at the time of their appointment was not sufficient to transact the increased business of tlie road, and that they had caused to be constructed, in the shops of the company and at the shops of other parties, a number of cars and locomotives, and had given orders for the construction of an additional number, and that they would…

<p>1. Mortgages — Foreclosure.</p> <p>Where the single defence to a bill, brought to foreclose a trust deed with con- . dition broken, is an alleged sale by the trustee of a portion of the mortgaged - property at public auction, a decree of foreclosure will be allowed, in the absence of any memorandum in writing of the sale, and where the testimony on the point of the acceptance of the bid by the auctioneer is conflicting.</p> <p>Same — Same—Parties.</p>

Rule to show cause why case should not be remanded to state court. This was an action at law, brought in a stale court of Pennsylvania by Caroline Johnson against the Philadelphia, Wilmington & Baltimore Railroad Company.

<p>1. Procedure — Writs oe Sequestration in the Nature oe Attachment— ' • Liens.</p> <p>Under its rules, this court bas tbe power to issue writs oí sequestration in the nature oí attachment; and such writs, when duly served, create valid liens upon real property in this state so attached, as against a grantee with knowledge of the attachment to whom the property was conveyed pendente lite.</p> <p>2. Same — Service.</p> <p>Due service is service in the manner provided by the state statutes.</p> <p>3. Semble that the knowledge or ignorance of the-grantee does not ali'ect the validity of the levy.</p>

<p>1. Supervisors — Representative Organizations.</p> <p>The rule, in case a question arises in respect to what political organization should be recognized by the court in appointing supervisors under the Revised Statutes, is that the organization which, was recognized by the last state convention of tlie'party is entitled to be considered as its representative organization ; subject, however, to modification by a change of circumstances. Held, therefore, that in the light of events that have occurred since the last state convention of the democratic party, the organization known as “The New York County Democracy’? will be regarded as now representing the democratic party in the city and county of New York.</p>

<p>1. Act of March 3, 1877 — Effect to be Given to the Decision of the Com- , missioners. '</p> <p>The decision of the commissioners, appointed under the provisions of the act of’Congress of March 3, 1877, entitled “An act in relation to the Hot Springs reservation in Arkansas,” is in the nature of a final adjudication, and one binding upon the parties, so far as it pertains to matters specified in the act.</p>

This -was an action at law brought by Logan P. Kennedy, a citizen of Kentucky, against John P. Hartranet, collector of customs of the district of Philadelphia, to recover an excess of duty claimed to have been exacted on about 9,000 bundles of cotton ties imported by plaintiff into the port of Philadelphia in August, 1880. The articles imported were bands of iron, each 11 feet long, painted and accompanied by a buckle.

<p>1. Inmates of Soldiers’ Home’s — Not in Military Service of United States —Indictment for Appropriating Clothing of Inmates — Rev. St. §$ 5438, 5439.</p> <p>Inmates of the National Military Home at Dayton, Ohio, are not in the military service of the United States, and clothing issued to them is not used in such service. So held, on demurrer to an indictment under section 5439, Rev. St., charging the defendant with applying to his own use an overcoat which had been issued to an inmate of such home.</p>

Petition by the assignee in bankruptcy stating that, at the date of the petition in bankruptcy, the wife of the bankrupt was the owner of certain lands of which she and the bankrupt were then in possession ; that children were born of the marriage, and pending the proceedings in bankruptcy the wife had died; that the bankrupt had not put into his schedule his interest in this land, and was now in possession, claiming his life estate by the curtesy, and in enjoyment of the…

<p>1. Letters Patent — New Evidence — Motion to Reopen.</p> <p>A case will not be reopened for the introduction of new evidence, unless the new evidence would vary the case, and probably lead to a different result.</p>

<p>1. Letters Patent — Licensors—Their, Right to Maintain Actions against Infringers.</p> <p>A pateatee, who has sold the exclusive right to use his invention for a term of years short of the full life of the patent, can maintain an action for an infringement.</p> <p>2. Same — Pleading.</p> <p>The petition, however, is demurrable, unless it affirmatively appears that the alleged infringer is not using the invention under the authority of the licensee.</p>

<p>1. Patent — Uniformity of Decision — Weight to be Given to Previous Decision in Other Circuit.</p> <p>A proper regard for uniformity of decision requires that where ono circuit court has, after a full discussion of the evidence, sustained a patent, another circuit court should, unless plain mistake he shown, follow such decision in a snit upon the same patent in which the same evidence is relied on.</p> <p>2. Same — Improvement in Waxing Paper — Injunction.</p> <p>Deissued patent No. 8,460, for improvement in waxing paper, sustained, and injunction against infringement granted, on final hearing; following a decision in Hammerschlag v. Scamoni, 7 Fed. Eep. 584, rendered upon a motion for a preliminary injunction.</p>

<p>1. Letters Patent — Pill Machine — Infringement.</p> <p>Letters patent for an improvement in pill machines, granted January 3, 1871, to Pierre Cauhapé, are not anticipated by either the Newton, Goward, or Murdoch & Haynes patents, nor by the Cordey apparatus; but infringed as to claim 2, by the apparatus used by Carnick.</p> <p>2. Formal Changes.</p> <p>The use of the same combination is none the less an infringement for some changes in form.</p> <p>3. Same — Claim 2 Construed.</p> <p>By “ the moulds, A,” in the second claim is meant any suitable holder of the pills, whether they are formed therein or elsewhere.</p> <p>4. Claim 2 — Validity.</p> <p>The second claim is good though the mould will not form a pill; provided, it will act as a holder for pills.</p> <p>5. Same — Same—Combination.</p> <p>The comb-bar, needles, and pill-holders form a combination; they are not a mere aggregation of parts.</p> <p>6. Specification — Surplusage.</p> <p>The word “ glycerine ” used in the specification may he rejected as surplus-age.</p> <p>7. Same — Claims.</p> <p>Where the claims are clear and distinct they will govern, rather than an ambiguous specification.</p>

<p>1. Admiralty — J urisdiction— Co-Salvors.</p> <p>Courts of admiralty have jurisdiction of an action to compel distribution by one co-salvor, who has obtained the entire salvage compensation, among the other co-salvors entitled.</p> <p>2. Salvage and Towage Services.</p> <p>The steam-ship Colon, bound from Aspinwall to New Tort, became disabled in her machinery in the Bahamas. She had a full set of sails, but was “ at the mercy of the winds,” and a hurricane, which was not unusual in those waters, “ would have put the ship in jeopardy.” Being nearly becalmed, she employed the Pomona, bound for Jamaica, to tow her to the nearest anchorage, 57 miles distant, for repairs.</p> <p>Held, that the service rendered was in the nature of salvage, and not a “ mere towage service.” Semble it is not within the proper discretion of a master to deviate from his voyage to render a mere towage service for the simple convenience of another vessel in expediting her passage, unattended by any circumstances of danger; and if such circumstances exist the service is salvage, for which officers and crew are entitled to share in the compensation.</p> <p>3. Salvage — Arbitration—Award—Binding on Parties Only.</p> <p>The owner and captain of the Pomona having filed a libel against the Colon, claiming salvage “in behalf of all entitled,” the respective owners, after answer and before hearing, submitted to arbitration the question whether the service was salvage, and the amount of compensation. The arbitrator decided that the service was not salvage, and awarded $3,000 to the owner of the Pomona as for a towage service, which amount was paid to him, and the suit discontinued. Thereupon the present libel was filed by three of the crew to compel distribution of. that money among the co-salvors.</p> <p>Held, that as the $3,000 was awarded on the basis of a towage service only, and not as salvage, and received by the owner as for towage, he was entitled to retain it to Ms own use. The officers and crew not having been parties to the former suit, nor to the award and the settlement under it, their rights and remedies against the Colon are in no way affected by it.</p> <p>4. Estoppel.</p> <p>Senile, upon a libel filed “ in behalf of all entitled,” the libellant, so long as no others have become actual parties and no decree had, is not estopped from settling the suit for his own interest and retaining the proceeds, according to the practice in analogous suits in equity. 2 Sim. & fitu. 196, note. See Stevens v. The Railroads, 4 Fed. Rep. 97, and note, p. 110.</p>

In Admiralty. This was a libel for towing the barge Robert Gaskin from Bay City to Lake Erie, August 12,1873; amount-claimed, $150; defence, stale claim. The testimony showed that the present- owners bought the Gaskin, which was a foreign vessel, March 12,1880, for a valuable consideration, and without notice of libellant’s claim. At the time the services were rendered she was owned in Kingston, Ontario, and was generally engaged in the Canadian trade.

<p>1. Contract of Sale Construed — Lex Loci Contractus — Evidence, Inadmissibility of Parol, to Add to a Written Contract — Burden of Proof —Expert Testimony — Measure of Damages.</p> <p>Where a contract oí sale was entered into in St. Louis, whereby the vendors agreed to ship the vendee 500 tons of “ No. 1 Shott’s Scotch pig-iron * * * from Glasgow, as soon as possible,” and deliver it to him in bond at New Orleans, for $26 per ton; and they shipped that amount of iron from Leith, and tendered it to the vendee, who refused to accept it, and the vendors thereupon had it sold by a broker for all it would bring, and sued the vendee for damages, — held,</p> <p>(1) That the burden of proof was upon the vendors to show that they had fully complied with the terms of the contract on their part.</p> <p>(2) That the fact that the iron was shipped from Leith instead of Glasgow was immaterial.</p> <p>(3) That it was necessary for the vendors to show a compliance with the contract as to time of shipment, but that “ shipment * * * as soon as possible ” meant as soon as possible by any ordinary mode of transportation.</p> <p>(4) That parol evidence was inadmissible to show that, by the custom of merchants, shipment should be by sail, unless it is specified that it shall be by steam.</p> <p>(5) That the term “No. 1 Shott’s Scotch pig-iron,” as used in said contract, should be understood as having the meaning usually given it by persons engaged in the iron trade in St. Louis.</p> <p>(6) That evidence was inadmissible to show what, in the opinion of merchants and business men in Glasgow, the contract moans.</p> <p>(7) That the vendors could not recover unless they proved a tender of iron of the quality called for by the contract.</p> <p>(8) That the only persons who were competent to testify as experts concerning the quality of the iron were those who had given the subject of manufacturing and testing iron special attention, and had experience in the art, and had examined the iron in question.</p> <p>(9) That evidence of the manner in which “No. 1 Shott’s Scotch pig-iron” is examined and marked at the foundry, was inadmissible for the purpose of showing the quality of tlio iron tendered.</p> <p>(10) That in case the vendors showed a compliance on their part with the terms of the contract, and a refusal on the part of the vendee to accept the iron, the measure of damages would be the difference between the contract price, together with interest thereon from the date of the tender, and the price for jvhicli the iron was sold, less the ordinary and usual commission paid brokers for negotiating such sales.</p>

<p>1. Municipal Corporation — Judgments—Mandamus.</p> <p>The statute of a state provided, among other things, that when upon the recovery of a judgment against a municipal-corporation and the levy of an execution thereunder sufficient property is not found to satisfy the same, a copy of such process shall be served on the collector and assessor, who shall then make an assessment and levy the required amount. Held that a writ of mandamus, commanding the city council to provide for the payment of the judgment, will not be granted in the absence of proof that the requirements of the statute have been complied with.</p>

<p>1. Equity — Jurisdiction—Trusts Under a Will.</p> <p>A court of equity has jurisdiction over a bill by a cestui que trust, to have the will construed; the directions of the court to the trustees and executors in regard to the proper method of executing the trust; and, as auxiliary to this, to have an account rendered to enable it to ascertain what is the residue of the estate available for the purposes of the trust.</p>

<p>1.. Minors — Notary. Public.</p> <p>There is nothing in the constitution or statutes of the state of Indiana making minors ineligible to the office of notary: such office is not a county office within the meaning of the constitution, wherein it provides that none but electors shall hold county offices.</p> <p>2. Same — Offices.</p> <p>At common law minors are eligible to offices which are ministerial in their character, and call for the exercise of skill and diligence only, and they are not eligible to office^ which concern the administration of justice. The office of notary is purely ministerial.</p>

<p>1 Preventing Citizen from Voting — Indictment under Section 5511, Kev. St. — Necessary Averments.</p> <p>An indictment designed to charge an offence under section 5511 of the Kevised Statutes of the United States, for unlawfully preventing a qualified voter from exercising the right of suffrage, should charge the offender with interfering “ at a congressional election ” with a voter qualified to vote, and offering to vote, for a representative in congress.</p> <p>2. Same — Same.</p> <p>Such an indictment need not set out the facts on which depend the right of the person interfered with to vote.</p>

<p>1. Frauds — Voluntary Conveyance by a Husband to His Wipe — Creditors.</p> <p>A voluntary conveyance by a husband to his wife of a valuable estate is, ,by the law of the state, prima facie fraudulent as to then existing creditors.</p> <p>2. Husband and Wipe — Void Agreements.</p> <p>An understanding between a husband and wife that on his death she should have all of his estate for the use of herself and children imposes no legal liability on the husband. Therefore, where a husband, a ship-master, on proceeding to sea makes a conveyance of his property to his wife by way of carrying out such an understanding, the conveyance is without consideration.</p> <p>3. Same — Voluntary Conveyance-Creditors.</p> <p>At the time such conveyance was made it appeared that the husband was indebted to the amount of $3,000 only; that he retained of personal property more than fourfold that amount; that for at least four years the creditors could have received their full pay at any moment, he having offered to pay them and they having refused it; and that, subsequently, by extraordinary misfortunes, he lost nearly the entire amount of his personal property. Meld, that the conveyance could not be set aside by these creditors as being fraudulent and void under the statutes of Elizabeth.</p> <p>4. Rev. St. Maine, c. 61, § 1.</p> <p>Nor can the conveyance be attacked under the provisions of chapter 61, § 1, of the Revised Statutes of Maine, which declares “that when property is conveyed by the husband to his wife without a valuable consideration made therefor, it may be taken as the property of the husband, to pay his debts contracted before such purchase.”</p>

<p>In Bankruptcy. Demurrer to amended bill of complaint for want of equity.</p>

<p>1. Letters Patent — Reissues—Invalidity.</p> <p>A reissue that covers more than the original, (apparently so as to embrace intervening inventions of others,) is invalid.</p> <p>2. Same — Wire Ca&es.</p> <p>Reissued letters patent No. 8,594, for an improvement in wire cages, consisting of an invention of a cage held in shape by the fitting of crimps in the wires to holes in the cross bands, while that in the original is of a cage held in shape by the locking of loops on the wires through slots in the cross bands, are invalid, the inventions being essentially different.</p>

<p>1. Letters Patent — Sere-Closing Faucets — Infringement—Anticipation,</p> <p>Letters patent for an improvement in self-closing faucets, granted June 27, 1865, to Nathaniel Jenkins, are infringed by a lancet differing from the device used by D’Este & Co. only in the particular that what was in that device a swivel, is in this an extension of the screw follower; but not anticipated by the French patent granted to Sarny and Lenormand, in 1861, in whose device the valve can be aided in being drawn to its seat by turning the screw in the opposite direction from that required to throw the valve from its seat, while the complainant’s patent has a loose joint, i. e., a joint in which the parts act upon each other by a pushing motion, and not by pulling, between the swivel and the valve.</p> <p>2. Evidence.</p> <p>The proof must be clear to show that an old patent upon an article used in every-day life, and which has long been in demand by the public, was anticipated by an article made in the city o f New York 23 years before the knowledge of such anticipation was ascertained.</p>

<p>1. Letters Patent — Lemon Squeezers — Infringement.</p> <p>Letters patent No. 217,519, granted to Josephine P. Panning and Isaac Williams, for an improvement in lemon squeezers, being a patent for a combination, one of whose essential elements is a bed on which the lemon is to rest while subjected to pressure, with holes in it to allow the juice of the lemon to pass through into a concentrator below, are not infringed by a machine of which the bed on which the- lemon rests while subjected to pressure is solid, with a grooved or corrugated surface so constructed that the juice is conducted to the edge of the bed, where it passes into the concentrator around the bed by running between the edge of the bed and the rim of the concentrator. .</p>

<p>1. Admiralty — Cross-Libels — Collision — Two Sail-Vessels on Crossing Courses, One with Wind on Port Side — Seventeenth Rule — Lookout— Duty of Officer of Peck — Twenty-Fourth Rule — Keeping Course under Seventeenth Rule — Changing Course before Collision.</p> <p>Where the schooners P. and Y.’ D. collided below Barnegat light, off the. Jersey coast, about half past 6 A. m., April 6, 1878,(the former striking the latter on the starboard side, staving it in, and causing the loss of her mainmast, while the P. had her bowsprit broken, and was otherwise injured, and the Y. D. claimed that when she sighted the P., while she was heading S. W., the wind being W. by N., she first saw her green light half a point on her port bow, and thereupon luffed to S. W. by W., which course she steadily kept to let the P. pass on her port side, but the other’s green light drew across her bow, and kept on till it appeared on her starboard bow, whereupon, the vessels being by this time quite near, she kept off-to let the P. pass on that side, but both the P.’s lights then appeared, when, hy keeping oft', she had brought the P. about abeam, showing that the P. had also kept, off, and was heading directly for her, and the P. after thus keeping off luffed just before the collision in order to go under the stem of the Y. D.; and the P. claimed that she first saw the other’s red light about a mile distant, half a point on her port bow,; that this light broadened on her port although the P. had ported a point and a half, changing her course to-JM. J5., but that both lights of the Y. D. then appeared two to three points off her port how, showing that she was'heading-towards the P., when the P. put her tiller hard a-port and so hold it qntil the'Gollision:</p> <p>Held, on the evidence, that the Y. D. first saw the other’s green light on her port how when she luffed to N. W. by N., and kept steadily on that course until the P. ’s green light appeared on hor starboard bow, and therefore that the P, could not have made and held the red light of the other on hor port bow, as she claims, but that she must have had the Y. D. on her starboard bow, ,</p> <p>That the appearance of the Y. D.’s two lights on the P.’s port bów indicated, or should have indicated, to the latter that she was crossing the course of'the other vessel, and was not caused by the Y. D. changing her course and keeping off, as claimed by the P.</p> <p>That on the evidence the. crossing of the course of the Y. D. by the P., indicated to the Y. D. by the [green light of the P. showing on her starboard bow, and to the P. by her seeing the two lights of the Y. D., led both vessels to keep off; that the Y. D. was the first to make the change, and that this was immediately followed by the change on the part of the P.</p> <p>Also field, the courses of the two vessels crossing so as to involve the risk’of - collision, that the P,, having the wind on her port side and not being close-hauled, .was bound, under the seventeenth rule of navigation, to keep out of the other’s way.</p> <p>That hoi- obligation so to do Was not affected by the Y. D. luffing one point when she first made the P., and that this was not a fault on the part of the Y. D. which contributed to cause the collision'. -</p> <p>That the P. was in fault in not keeping a good lookout, and especially in this: that the mate, who was the officer of the deck and who was at the wheel, was not where he could keep the light of the Y. D. in view after it was sighted and reported by the lookout, his view of it being obstructed by the deck load, and that this fault directly tended to cause the collision.</p> <p>Also held, that the Y. D! was in fault in not keeping her course, under the seventeenth rule, instead of keeping -oft' when she observed that the P. had crossed her bows, which maneuver was not rendered necessary to avoid immediate danger,- under rule -24, but, on the contrary, was admitted by her master to have been made in order to aid the P. in her supposed intention to pass on the starboard side, and actually embarrassed the movements of the P. and contributed to cause the collision.</p> <p>That each vessel being thus brought into immediate danger by the fault of the other, the collision could not be attributed solely to the luffing by the P. just before the collision.</p>

In Admiralty. In February, 1880, Pardessus & Anthony, who were then residents of New York city, commenced the building of a steam-dredge at Astoria, in New York harbor. Her hull and flooring were completed there, and in the endmf April the hull was launched and was towed to Greenpoint, in Kings county, New York, a place near Brooklyn.

Appeal by the steam-ship Belgenland from the decree of the district court (reported in 5 Fed. Rep. 86) awarding damages against her upon a libel for collision. The facts are sufficiently stated in the opinion.

On Demurrer. Plaintiff’s declaration, in its first count, claims damages for a failure to deliver in the city of New York 32 bales of cotton which the defendant corporation undertook to deliver by its bill of lading.

<p>1. State Court — Process.</p> <p>A state court cannot reach funds which have been made by an officer of a federal court on execution.</p>

This was a motion to quash the indictment found against the defendant, as president of the First National Bank of Hackensack, under section 5209 of the Bevised Statutes. The first count charges that the defendant did embezzle, abstract, and wilfully misapply certain funds and credits of the bank of the value of $5,000. The second is in the same form, except that it specifies the particular stocks abstracted. Neither count alleges any intent.

<p>1. Foreign Attachment — Collector of Customs — Goods Held for Duties.</p> <p>A United States collector of customs cannot, in a foreign attachment proceeding in a state court, be made garnishee with respect to goods of the defendant held for duties; and if he is served witli a writ of attachment in such proceeding the service will be sot aside.</p> <p>2. Removal of Causes — Collector of Customs Served with Attachment.</p> <p>The collector may, if served with such attachment, remove the suit to the United States circuit court, under section 643 of tho Revised Statutes.</p>

<p>1. Bankruptcy — Application for a Discharge — When Seasonable.</p> <p>The application of a bankrupt for a discharge is seasonable if made before the final disposition of the case.</p> <p>2. Case Stated.</p> <p>Order denying a bankrupt his discharge for want of timely application reversed, where the application was made before a final order closing the case, though after an order permitting a creditor to move for a final order.</p>

<p>1. Bankruptcy — Preferences—When Valid.</p> <p>Preferential payments, made more than three months before bankruptcy, cannot be set aside in favor of the assignee in bankruptcy.</p> <p>2. Assignees.</p> <p>Assignees in bankruptcy do not succeed to the rights of assignees in insolvency whose assignment they have had set aside.</p>

<p>Hearing on Bill, Answer, and Proofs.</p> <p>This was a bill for an injunction against the infringement by defendants of letters patent No. 55,598, issued to John Ashcroft, under date of June 19, 1866, for an “ improved mode of covering steam-boilers or pipes.” Defendants denied the infringement. Plaintiff’s invention consisted in covering steam-boilers with a covering of felt, supported on a frame-work of wire or small iron bars, forming an open frame-work removed a short distance from the boiler and supported by studs or struts. Defendants’ invention consisted of a covering of felt, supported on a sheet-iron metal jacket, so punched that it was full of V-shaped points, which touched the surface of the boiler and held the jacket equidistant from the surface.</p>

<p>1. .Letters Patent — Preliminary Injunction.</p> <p>A preliminary injunction 'will not be granted where the defendant’s affidavits make out a case of reasonable doubt as to the novelty of the complainant’s patent.</p> <p>2. Sake — Same.</p> <p>Semble that the same rule applies as to its .validity.</p>

<p>1. Letters Patent — Assignment—Estoppel.</p> <p>An assignor of a patent, who bad agreed to stop manufacturing the patented machinas and bad paid a license fee, agreed upon, to his assignee for the privilege of selling machines he had on hand, is estopped from denying its validity, in a suit against him by the assignee for its infringement, by manufacture and sale under letters patent issued subsequently to the assignment.</p> <p>2. Same — Middlings Purifiers.</p> <p>Reissue No. 8,386, and letters patent No. 225,218, are substantially for the same machine.</p>

<p>1. Admiralty — Consular Agents — Consuls.</p> <p>Under tlie provisions of the statutes and established regulations, a consular agent is the representative of the consul to whom ho is subordinate.</p> <p>2. Same — Rev. St. § 4309.</p> <p>An arrival at a foreign port from another foreign port is within the purview of section 4309 of the Revised Statutes.</p> <p>3. Same — Consular Regulations of May 1,1881.</p> <p>SemMe, that Hieres is not within such reasonable distance of the port of Toulon, and the communication between the two points so free from difficulty, as to require a master, under the provisions of paragraph 179 of the consular regulations of May 1,1881, on arriving there, to deposit his ship’s papers at the Toulon consulate.</p>

In Admiralty. Hearing on libel and answer. This was a libel by Kobert O. Chambers, pilot, against the steamship Clymene, setting forth that in June, 1881, the steamship being at the entrance of Delaware bay, libellant boarded her and offered Ms services as pilot to conduct her to Philadelphia, her port of destination; that Ms services were accepted, and that he did pilot the steamship to Philadelphia.

<p>Appeal from the Decree of the District Court.</p> <p>This was a libel by the owners of the schooner Marietta Tilton against the steamship Harrisburgh to recover damages for the loss of the schooner by a collision. The facts are sufficiently set forth in the opinion. The district court, in an opinion reported 36 Leg. Int. 66, dismissed the libel, and from that decree the present appeal was taken.</p>

In Admiralty. This was a libel in personam by Charles Bewick et al., owners of the propeller Alcona, against the Detroit Pire & Marine Insurance Company, to recover for a general average contribution. The policy insured the propeller against total loss and general average only in the sum of $10,000. The answer denied that the libel set up a proper claim for general average.

<p>1. Res Adjudicata — Estoppel.</p> <p>Two mortgages of different properties were at the same time assigned to a. bank by a wife as security for one note discounted for her husband. After-wards, in a proceeding in a state court for the foreclosure of one of the mortgages, the wife disputed the validity of the assignment, and resisted the claim of tlie bank to receive the money arising from a sale of the mortgaged property. The issue thus raised was decided by the state court in favor of the bank, and the validity of the assignment to it was sustained. Subsequently a proceeding to foreclose the other of the two mortgages was instituted in the federal court, and the wife raised the same objection to the validity of the assignment to the bank. The bank pleaded that the question of the validity of its assignment was res adjndicata. Held, on the authority of Campbell v. Rankin, 99 U. S. 263 ; Cromwell v. County of Sac, 94 U. 8. 351 ; and Davis v. Brown, id. 423, that although the subject-matter of the casein the federal court was not the same as that of the case in the state court, yet the matter put in issue having been the same, and tlie parties to the controversy the same, that the wife was estopped from again contesting the validity of the assignment upon tho same ground as she had set up in the first case.</p>

<p>Summons. Action on the case. Motion to strike off a judgment by default for want of an appearance, or to open the same, so as to let the parties in to a trial on the merits of the case.</p>

<p>1. Jurisdiction of United States Courts — Suits to Enforce Liens — NonResident Defendants — Section 738, Rev. St. — Conflict of Jurisdictions —Assignments for Benefit of Creditors — Probate Courts.</p> <p>Bill in equity in United States circuit court by complainants,- citizens of states otter than Ohio, to foreclose a mortgage upon real estate in Ohio. Before the suit was begun the mortgagor had made an assignment for the benefit of his creditors of all his property, real and personal. The bill made the mortgagor, his assignee, (who was a resident of Ohio,) and others, defendants. The mortgagor and assignee filed pleas to the jurisdiction — the former alleging that he was not a citizen of Ohio, and by reason thereof the court had no jurisdiction.; and the latter setting up that he had accepted the trust as assignee, and qualified ; that the probate court of Athens county, having exclusive jurisdiction of the trust, had, before the bringing of the suit, ordered him to sell the real estate of the assignor, including that described in the bill ; that said order is still in full force, and that he is engaged in executing it; that the real estate is of greater value than complainant’s claim, and that the property is insufficient to pay all the indebtedness of said mortgagor; that said real estate was, at the commencement of this suit, in the custody of the law, and subject to the order of said probate court; wherefore the court has no jurisdiction thereof, or of this suit. On demurrer to pleas, held :</p> <p>(1) The plea of the mortgagor is insufficient. Under section 738, Rev. St., he may be served out of the state, or brought in by publication.</p> <p>(2) The plea of the assignee is also insufficient. The court has jurisdiction to determine the amount due upon the mortgage, and fix the rights of the parties. Q uaire, as to whether it can proceed to sell the property.</p>

<p>1. Removal, of Causes — Act of 1875, § 2.</p> <p>Where the plaintiff, in a suit commenced in a state court, has united controversies between herself and citizens of the same state, with others, which can be fully determined as between the parties to them, between herself and citizens of a different state, the latter may have the cause removed under section 2 of the act of 1875.</p> <p>2. Notice — Same.</p> <p>No notice prior to the order of removal need be given to the other party.</p> <p>3. Bond — Subetibs.</p> <p>■ The bond need not be executed by the petitioners, hut is sufficient if executed by others who are named in it- as obligors; if conditioned that the petitioners shall comply with the provisions of the statute; and if it recites that the petitioners have petitioned for the removal; though the obligors are not otherwise called in the bond sureties for the petitioners.</p> <p>4. Yoluntaby Abpbabance.</p> <p>A party does not lose the right to insist on the removal of the suit by a voluntary appearance.</p>

<p>1. Involuntary Bankruptcy — Action for Recovery of Debt — Bar.</p> <p>A proceeding in involuntary bankruptcy is not one for the recovery of tbe creditor’s debt, but to secure a distribution of tbe debtor’s property among all his creditors; and therefore the prosecution of an action by the creditor for the recovery of his debt is not a bar to his proceeding against the debtor in bankruptcy.</p> <p>2. Same — Amendment to Petition — New Act of Bankruptcy.</p> <p>An amendment to the petition charging that the conveyances, which were specifically set forth in the petition, and which were therein alleged to be fraudulent and without consideration, were also made, if there was any consideration, with intent' to prefer certain persons to whom the conveyances were made, does not charge a new act of bankruptcy, and should be allowed.</p> <p>3. Same — Jurisdiction—Number and Amount.</p> <p>That the petitioning creditors constitute one-fourth in number and one-third in amount of the debtor’s creditors and indebtedness is not, in the proper sense of the term, a jurisdictional fact.</p> <p>Ex parte Jewett, 2 Lowell, 393, followed.</p> <p>4. Same — Same—Same—Repeal of Bankrupt Law — “Pending” Case.</p> <p>A proceeding in involuntary bankruptcy was “ pending,” within the meaning of the act of June 7, 1878, repealing the bankrupt law, when that act went into force, although the required number and amount had not then joined as petitioning creditors; and the court(has power thereafter to permit other creditors to join as petitioning creditors.</p>

<p>1. Reissue — Too Bboad — Invalid.</p> <p>Whore the original patent is for a particular form of wooden bushing in an iron one, a reissue for any form is broader than the original, and invalid.</p> <p>2. Lettebs Patent — Bushings fob Faucet-Holes.</p> <p>Reissued letters patent No. 8,483, for an improvement in bushings for faucet-holes, is invalid.</p>

<p>1. Letters Patent — Horseshoes..</p> <p>The distinctive feature of patent No. 170,809, granted to Nelson J. Blatherwick, December 7,1875, for an improvement in horseshoes, being a projection beyond the wall of the hoof, made by curving the shoe almost at a right angle from the natural toe, or point of the hoof, to a point nearly as far inward as the widest part of the hoof, so that the inner fore-quarter of the shoe was nearly a right angle, is not infringed by a shoe in which the projection is lacking.</p> <p>2. Estoppel.</p> <p>Defendants are not estopped from denying infringement by reason of having at one time acted under a license from the complainant.</p>

<p>1. Letters Patent — Paper-Holders—Infringement.</p> <p>Letters patent No. 217,909, issued July 29, 1879, to Frederick W. Smith and James S. Shannon, for an improvement in paper-holders, are valid and infringed, as to claims, 1, 2, 3, 4, and 7, by the defendant’s device.</p>

<p>1. (Repairs to Vessel — Contract—Performance:</p> <p>L. & Co., shipwrights, made an. offer, by letter, to the JM. Steam-boat Oo. to repair one of their steam-boats, which was accepted, and L. & Co. proceeded to do the work. Payments on áccount were made while the work was in progress, and a note for the .-balancé of the bill given. Payment of the note at maturity was refused on the ground that the contract had not been fully performed. L. & Co. filed a libel to recover the balance claimed to be due, and the company in their answer set up a special agreement to make the boat stiff and strong as new, and remedy, the defect which made her “cranky,” apd nonperformance thereof. Held, that the special agreement was not found by the testimony;. that the written contract in the letter was the only one by which to determine the right of the parties; and, the terms of that having been performed, the libellants were entitled to be paid the balance due.'</p>

<p>1. Maritime Liens.</p> <p>Upon the arrival of the vessel the phosphates in question were seized by the marshal, by virtue of process issued against tiie property in a possessory action, and sold at auction as it lay. IIelcl, that the purchaser had a reasonable time for unloading, but that for any longer detention the master was entitled to demurrage; and that the claim for demurrage constituted a lien upon the property.</p>

<p>1. Salvage.</p> <p>Salvors cannot force themselves on a vessel against the will of the master.</p>

<p>1. Collision — Libel by Owner of Vessel for Loss of Cargo — Libel by Owner of Cargo — Petition to be Made Co-Libellant — Order Consolidating Actions — Costs—Two Sail-Vessels on Crossing Courses, One of Them with the Wind Aft — Changing Course before Collision — Lights —Lookout—Vessel to "Windward — Seventeenth Rule of Navigation.</p> <p>A vessel, arrested upon the libel of the master and owners of another vessel, who, with the crew, libelled her for loss, by collision, of vessel, cargo, pending freight, and personal effects, having been released, on giving bail for the full amount claimed, is not liable to be again arrested on a libel by the owner of cargo, setting forth the same cause of action as to loss of cargo contained in the first suit. The proper and usual course in such a case for the owner of cargo, if lie desires to be made personally a party, is to petition to bo made a co-libellant in the first suit. Although an order upon the trial, consolidating the actions, in effect produces the same result, still, the commencement of the second action being improper, the second libellant should be charged with the costs of his action, and the bond given therein should be cancelled without regard to the result of the first suit.</p> <p>Where the bark N. collided with the libellant’s schooner P., about 75 miles south-east of Sandy Hook, about half past 5 o’clock a. m. in November, 1879, striking her on the stern a little to the port of the stern post and causing her to sink, and the P. was sailing on a north-east course, wing and wing, the wind being south-west, and the P. claimed that she did not see the N. until just before the collision, when, to diminish the force of the blow, or possibly to avoid the collision, she immediately changed her course, but not more than two points to port, and that the collision was caused by the N. having no lights, and not luffing to avoid it, and not keeping out of the way of the P.; and the N. claimed her course had been N. W. by N. and not N. by W., as claimed by the P., and that she kept that course and did not change to a more northerly course, as claimed by the P., but that the P. changed her course as much as four or five points, and that the collision was caused by the fault of the P. in bringing- herself on a line with the N. instead of keeping out of her way, and in not sooner seeing the N., — held, on the evidence, that the P.’s green light was first seen by the N. distant about a mile, and from two and a half to three points on her port bow, and that the N. was heading at the time N. W. by N. and not N. by W-, as claimed by the P. Also held, the evidence showing that at the instant of the collision the courses of the vessels diverged about two or two and a half points, that the P. must have changed her course just before the collision more than two points to the port, and as much as lour and a half to five points; that the disappearance of,the P.’s light from the view of those on the N. after it was first seen was due, not to the alleged change in the course of the N., but to the fact that the P. was- not kept steady in her course; that the N.’s port light was kept burning brightly, and could have been seen by the P. as soon as the N, saw her green light; that the collision was due 1o the fault of the P. in not keeping a good lookout, and in not sooner seeing Hie N.’s light, and, being to the windward of the N., in not keeping out of her way, as required by the seventeenth rule of navigation; that the N. was not in fault, liut kept lier course, as slie had a right and was bound to do under the seventeenth rule.</p>

<p>1. Disrating Cook — Rescission on Contract.</p> <p>By disrating the cook and steward, and placing him before the mast, the master rescinds his contract; and, if the rescission is accepted by the steward, he is entitled to his discharge.</p>

<p>1. Practice — Circuit Court — Security bob Costs.</p> <p>Security for costs, otlier than required by the rules, will not be required of a plaintiff in this court where the motion is made before answer, and the moving papers neither show any item of taxable costs or disbursements yet incurred, nor any steps taken which involved any disbursements, nor any itemized statement of extraordinary disbursements which are to be made at once in proceedings already taken. «</p>

<p>1. Process — Act of 1875, § 1 — Equity Bulé 13.</p> <p>A subposna or notice, issued on the filing of a bill in equity to enjoin an action at law, is not regarded as an original process or proceeding within the meaning of section 1 of the act of March 3, 1875, nor as within the terms of rule 13 in equity.</p> <p>2. Same — Service of.</p> <p>A bill brought by a defendant to enjoin the suit at law is only ancillary to such suit; but the court may, in its discretion, order personal service of the subpoena on the plaintiff, if he can be found, in addition to substituted service on his attorney.</p>

<p>1. Judgments — Collateral Attack.</p> <p>The general rule, in the language of the court, Is that a question of fact once determined and adjudged, by a court having authority to make the inquiry and adjudication, is conclusively determined, unless the judgment is set aside on appeal to some higher court, or upon some direct proceeding within the recognized rales of law to annul it. Honcc, where the statute of the state provided that the administration of the estate of an intestate shall be granted by the county court 'when the intestate, “ at or immediately before his death, was an inhabitant of the county,” etc., the decision of the court on the question of inhabitancy, properly presented for its adjudication, is not open to examination in a subsequent proceeding in a federal court.</p>

<p>1. Ejectment — New or Second Trial as a Matter of Right under the State Civil Code.</p> <p>In proceedings to recover possession of real property under the Civil Code of Indiana, no one not concluded by the judgment is entitled, under the Code, (section 601,) to liave the judgment vacated, and a new trial granted as matter of right, upon payment of costs, etc. Such right is limited to the party against whom the judgment is entered, his heirs, assigns, or representatives.</p> <p>2. Pleadings — Lapsus Calami — Judgment—Test of — Record.</p> <p>Where an amended complaint is filed, before answer, against a single defendant in substitution of a complaint originally filed against several defendants, upon which amended complaint trial and judgment are had, the mere mistaken or careless use of the .plural “ defendants ” in the subsequent pleadings, and in the judgment for costs, does not conclude any one save the single defendant to the amended complaint. The judgment is to he tested by the whole record.</p>

<p>1. Life Insurance — “ Sorer and Temperate.”</p> <p>The answers in the application, when made the basis of the agreement, are a material part of the contract, and, if untrue, the policy is void. But the burden of proof- is on the company. The answers alleged that the applicant was sober and temperate, and had always been so.</p> <p>Held, that the words “sober and temperate” are to be understood in their ordinary sense. They do not imply total abstinence. A moderate and temperate use of alcoholic stimulants is consistent with sobriety, but if used to such an extent as to produce frequent intoxication, the applicant is not sober and temperate.</p> <p>2. Evidence — Negative—Positive.</p> <p>Testimony of positive witnesses that they have seen the party intoxicated is not to be rejected on account of the negative testimony of others who have not.</p> <p>3. Insurable Interests.</p> <p>No one can procure valid insurance on a life unless lie lias an interest in that life.</p> <p>4. Same.</p> <p>A policy taken out nominally in the name of the assured, and for his benefit, but in reality as a cover for the benefit and in the interest of one having no insurable interest, is void.</p> <p>5. Same — Creditors.</p> <p>A creditor, however, has an insurable interest in the life of his debtor, and may take out a policy upon the life of the latter, or the policy may be taken out in the name of the debtor and assigned to the creditor.</p>

<p>1 Bankruptcy — Illegal Preferences.</p> <p>Proof of the existence of a desire on the part of the debtor that a particular creditor may succeed by the usual proceedings in a suit in obtaining a preference over other creditors, so that such preference may be maintained even as against-proceedings in bankruptcy which may be subsequently commenced, is insufficient to establish that the debtor procured or suffered his property to be taken on legal process with intent to prefer such creditor.</p> <p>2. Same — Same—Agent—Notice.</p> <p>A national bank, having reasonable cause for believing that a party whose paper it had discounted was insolvent, instructed a firm of attorneys, who were its debtors’ attorneys, though of this it was not aware, to proceed to collect its debt. By the collusion of the debtors they were enabled in due course of judicial proceedings to obtain judgments and levy executions before the institution of proceedings in involuntary bankruptcy by the other creditors. Held, that the knowledge of the attorneys, though unknown to their principals they had peculiar facilities for obtaining information, so long as it was obtained about their employment was the knowledge of the bank, since disclosure would involve no breach of professional confidence; and that the judgments and levies were void as against an assignee in bankruptcy.</p>

<p>In Equity. Exceptions to master’s report upon accounting.</p>

In Equity. This was a suit upon reissued letters patent Nos. 8,867 and 8,127, for improvements in brick machines. Of reissue No. 8,867 defendants were charged with having infringed the following claims: (1) A horizontal brick or tile machine, constructed with a tub supported at its ends in the standards; and with a nose-piece or die-holder on the front extension.

<p>1. Letters Patent — Improved Lubricators — Anticipation.</p> <p>A mere drawing, not followed by construction and actual use of the machine, does not amount to anticipation. Held, therefore, that the letters patent granted May 22, 1877, to Charles H. Parshall, for an improvement in. lubricators, is not anticipated by the drawing of J. V. Rerchard, which bears date August 10, 1876.</p> <p>2. Same — Same,</p> <p>A lubricator, with metal oil cup, glass indicator, and a tube shaped like an inverted syphon, whereby the condensed water can drop into the oil cup through the indicator, not admitting of the passage of the oil into the condenser, but forcing it into the engine it is needed to lubricate, which is effected by an arrangement of the parts by which the condenser and the oil cup are brought into immediate contact, so that the water-soal tube may conduct the condensed water into the body of the oil, and thence upward again so as to discharge directly into the indicator, while it may not effect any new result, does attain the same result in' a better mode than was known before, and is therefore a valid subject for a patent.</p>

<p>1. Letters Patent — Tucker Bronze.</p> <p>Tucker bronze is made by cleaning a piece of cast-iron, of the desired pattern, from the sand and scale which adheres to it when it comes from the mould, then coating it with a very thin film of oil, and, finally, subjecting it to a high degree of heat one or moro times, whereby various colors may be produced upon the surface of the iron arid rendered permanent. Reid, that bright cast iron oxidized, and covered with a coat of oxidized oil, varnish, ,or size, may be, but is not necessarily, Tucker bronze; and that, in the present case, there is no infringement.</p>

<p>1. Letters Patent — Saw-Mill Dogs — Anticipation.</p> <p>Selden’s device, known, as a saw-mill dog, held to kave been anticipated, and , therefore to be invalid.</p>

Hearing on Bill, Answer, and Proof. Bill for injunction against infringement of reissues of patents issued to complainant for improvements in baling-presses. The answer denied novelty, alleged that the reissues contained “new matter,” and denied infringement. The facts are sufficiently stated in the opinion.

<p>1. Injunction — Contempt of Court.</p> <p>Disobedience to an injunction is none the less a contempt of court because the act is done in good faith, as not prohibited by the order, or under advice to that effect.</p> <p>2. Clukodine.</p> <p>Grlukodine is a mechanical mixture, not a new chemical compound</p>

<p>1. Inevitable Accident — Damages.</p> <p>Damages resulting from an inevitable accident must be borne by the party on whom they fall. Hence, where a steamer that was safely moored for all ordinary emergencies broke loose in a storm and inflicted damage on other shipping, her owners cannot be compelled to make good the loss.</p>

<p>1. Bill of Lading — Unloading Cargo.</p> <p>The ship-owners can recover from the consignees the expense incurred by them in unloading the vessel, where the bill of lading provides that the cargo should be delivered from the ship’s deck, when the ship’s responsibility should cease. ,</p>

<p>1. Penalties and Forfeitures — Act of February 8,1881.</p> <p>The word “seizure,” used in the act of February 8, 1881, embraces seizures by the marshal under legal process for the enforcement of a penalty pursuant to section 3088 of the Revised Statutes, as well as seizures by revenue officers for the purposes of forfeitures.</p>

<p>1. Towage' Services — Liens.</p> <p>Towage service must be rendered to carry alien; an unexecuted contract to perform towage service is not enough.</p>

<p>1. Contracts — Evidence.</p> <p>Parol evidence is inadmissible to vary the terms of a written contract.</p> <p>2. Common Carrier — Delay in Delivery — Damages.</p> <p>In the ordinary case of delay by a common carrier in delivering goods, the measure of damages is the difference in their market value at the time when actually delivered and when they should have been delivered.</p>

<p>1. Admiralty — Acts Causing Death — Action in Bem fob Damages — Lien UNDEB THE STATUTE OF NlSW YORK.</p> <p>A row-boat containing two men and a woman, which was crossing the East river at New York just at dusk, was struck and capsized by a steam-boat of a regular line plying to Harlem, and while the men were saved the woman was drowned. An action in rem for damages being brought by the husband of the deceased woman as administrator, held, that the statute of the state of New York created no maritime lien for such damages, and no right of action to the libellant arose therefrom.</p>

The plaintiff avers in his petition that, at the time of the accident therein referred to, he was a brakeman in the employment of defendant'; that .while, in the performance of his duties as such, he was coupling a car, used and operated by defendant at the time, to a certain engine of the defendant, his hand and arm were caught between the car and engine, and crushed and lacerated so that it was necessary to amputate it between the elbow and wrist, and that it was…

<p>1. Pleading — Answer—Demurrer.</p> <p>By putting in. an answer to tbo whole bill, a defendant overrules his demurrer which is also to the whole bill.</p>

<p>1. Practice — Consolidation—Discontinuance.</p> <p>•The consolidation of several actions into one will not defeat the right to dismiss as to one or more of the original causes of actions.</p>

<p>Motion at chambers, by William Sturges, to file a transcript of the state court and to docket the cause in this court.</p>

<p>1. CORPORATIONS — CHARTER—CONTROLLING EFFECT.</p> <p>The charter of a corporation empowered the board of directors to appoint the corporate officers. Held, that mere verbal understandings between individual members of the board prior to the incorporation of the company as to the choice of such' officers, would be controlled by this provision.</p> <p>2. Dissolution of the Corporation — When Justifiable.</p> <p>The conveyance, under the authority of the board of directors whose action is ratified subsequently by all the stock represented at a meeting of the stockholders, of the total assets of a private corporation in payment of its sole debt, operates as a valid conveyance of the property as against other stockholders, in the absence of fraud and when a longer continuance of the corporate business would be ruinous to all parties.</p>

<p>1. Removal of Causes — First Term.</p> <p>After the expiration of a term of the state court at which the suit could be legally tried, it is too late to Ale a petition for its removal to this court.</p> <p>2. Same — Jurisdiction—State Court.</p> <p>The circuit court is not precluded by the decision of the stale court from determining for itself whether or not the removal was made in time.</p>

<p>1. State Comity — Service of Process.</p> <p>A party to a suit which has been brought in a circuit court of the United States is protected from the service of process and papers in another suit between the same parties for the same cause of action, which has been commenced in a circuit court in another state, while attending there a regular examination of witnesses in the former suit.</p>

Tn Chancery. On demurrer to cross-bill for injunction. Complainant filed a bill in equity to foreclose his mortgage upon the plantation of defendant, and, under the statutes of Louisiana, prayed for a writ of seizure and sale, directed to the marshal to seize and sell the same to pay his debt, which writ duly issued, and the plantation was seized and advertised for sale.

<p>1. Swamp Lands — Act op Congress — When to Take Effect.</p> <p>Title to swamp land was not vested by the act of congress of September 28, 1850, until the admission of a territory into the Union. Hence, the state of Minnesota not having been admitted into the Union at the date of the passage of the act granting lands to the territory or future state of Minnesota for the construction of railroads, approved March 3,1857, a grantee of the state, by virtue of the acts of the legislature approved March 8,1861, and March 4,186'4, has a good title as against one whose title depends upon the proper construction of the acts of congress approved September 28, 1850, and March 12, 1860.</p>

This was an action against the master of a vessel to recover the penalty prescribed by section 4549, Rev. St., for the discharge of a seaman without going before a shipping commissioner.

<p>1. Proving Claim in Bankruptcy — Liens—Waiver.</p> <p>A creditor waives any lien lie may have upon the property of his debtor, by proving up his debt as an unsecured claim.</p>

<p>1. Bankruptcy — Discharge of the Bankrupt.</p> <p>Where there are no assets, the bankrupt is entitled to his discharge on making application after the expiration of 60 days from the adjudication of bankruptcy, and before the estate has been settled and the assignee discharged.</p> <p>2. Same — Same.</p> <p>The right of a bankrupt to a discharge depends upon his own acts. Unless a party thereto, he is not bound by the acts of commission or omission of his former partner.</p>

<p>In Bankruptcy. Final hearing upon specifications and proofs in opposition to bankrupts’ discharge.</p>

In Bankruptcy. Petition for counsel fees. The question here arose upon two petitions of the firm of Taylor & Pollard, attorneys at law, asking for the allowance of certain fees, and the report of the register in bankruptcy, to whom the matter was referred.

<p>1. Letters Patent — Preserving Meats.</p> <p>Letters patent No. 197,314, granted November 20, 1877, for improvement in processes for preserving meats during transportation and storage, consisting- in enveloping the meat in a covering of fibrous or woven material, and subjecting- it to a continuous current of air of a suitable temperature, are not invalid 1'or want of novelty.</p>

<p>1. Letters Patent — Pocket-Lighting Device.</p> <p>The first five claims of reissue No. 8,490, granted to George Selden, November 12,1878, for an improvement in pocket-lighting devices, held to he infringed by the structure of the defendant, the differences between the two structures being merely formal.</p> <p>2. Same — Assignments.</p> <p>Section 4895 of the Eevised Statutes, which provides that patents may be granted and issued or reissued to the assignee of the inventor or discoverer, does not require that the assignee shall be the immediate assignee of the inventor.</p> <p>3. Same — Same.</p> <p>If tlie assignment which divested the inventor of his interest in a patent was made before July 8, 1870, the case falls within the exception to section 489S of the Revised Statutes.</p> <p>4. Reissues.</p> <p>A patent is not void because it is a reissue of a reissue.</p> <p>5. Same — Commissioner.</p> <p>The commissioner’s decision upon an application which sets forth that the surrendered patent was inoperative by reason of a defective specification is conclusive.</p> <p>6. Surrenders — Reissues for Separate Parts.</p> <p>Where the original specification described a circular case for a pocket-lighting device, and an extended tube ease for lighting at a height, held that, upon the surrender of the original patent, reissues for each form of apparatus, as distinct and separate parts of the thing patented, are valid.</p>

<p>1. Letters Patent — Head-Coverings—Novelty.</p> <p>Letters patent granted to Robert Gray, September 9, 1879, for an improvement in bead-coverings, — tbe claim being for a bead-covering consisting of a support of buckram or tbe like, a top layer of flock, and a canton-flannel or other similar lining, substantially as and for tbe purpose described, — are not anticipated by tbe Kendall turban, Bracber’s frame, tbe Morse bat, or tbe bats of 1876 of tbe Novelty Company.</p>

<p>1. Letters Patent — Middlings Flour.</p> <p>Certain instruments, set out in full in the opinion delivered by the court, held not to amount to such an assignment by Downton, a patentee for a process patent, of which the claim is for manufacturing middlings flour bypassing the middlings through or between rolls, of his right as patentee, as to preclude him from suing third parties who infringe his patent.</p>

<p>1. Attachments — When Set Aside.</p> <p>An attachment will be set aside in the absence of any proper endeavor to make personal service upon the respondent.</p> <p>2. Married Women — Process.</p> <p>When the respondent is a married woman, having no place of business or of customary resort other than her home, which there is no reason to suppose she has left, an omission to seek her there, or at her usual or last known place of residence, must be held a failure of any proper endeavor to make personal service.</p> <p>3. Misuse ov Process — Practice.</p> <p>When it is clear from undisputed facts that, through the want of any proper effort to make personal service the process has been used in an unauthorized manner, such misuse will be correct ed on motion. '</p>

<p>1 Salvage — Passenger Steamer.</p> <p>Towage rendered to a vessel that is disabled, and in a situation 1o occasion reasonable apprehension of danger, is salvage service. Hence, where the Plymouth Hook, a passenger steamer of light draught and excessive “ free board ” exposure to the wind, in grade belonging to the class of river and sound steamers, and rated as A.2}£, became completely helpless as to motive power by the breaking of her steam-pipe within a short distance of the Row Jersey coast, in a north-east gale and a heavy sea, and with only two-thirds of the usual equipment in anchors and chains of full sea-going vessels, held, that tlio service performed in towing her into the port of New Tork is a salvage service.</p> <p>2. Same — Compensation.</p> <p>In the language of the court, the most important considerations in fixing such awards are the value of the properly rescued, the number of lives imperilled, the degree and imminence ol' the danger, the proximity of other moans of succor, the hazard, labor, and skill of the salvors, the duration and difficulty of the service rendered, the value of the vessel employed, and her danger in rendering it, and the incidental risks or responsibilities incurred by the latter oilier owners, if any, through any deviation from her voyage in rendering the service.</p> <p>In this case $2,000 was adjudged to be a just award, in view ol all the circumstances.</p>

<p>1. Agent, When Liable on a Contbact.</p> <p>A person who signs a contract as agent without disclosing the name of his principal is liable thereon as principal.</p> <p>2. Agency.</p> <p>A person authorized to act for the charterers of a vessel, as agent to procure a cargo m a foreign port, is not thereby authorized to modify or cancel the charter-party of his principal.</p> <p>S. Impossibility — When no Excuse bob Non-Pebfobmancb of a Contbact.</p> <p>The owners of a vessel chartered her to carry passengers from Hong Kong to Portland, and stipulated in the charter-party that she was “ tight, staunch, and strong, and in every way provided for said voyage; ” but upon her'arrival at Hong Kong she was found by the surveyor of the port to be “ not fit to carry passengers,” and refused permission to do so by the local authorities. Held, that the owners were not thereby excused from their contract, which was absolute and without condition, to carry passengers out of Hong Kong; and that, even in the absence of the stipulation in tho charter-party as to the character and condition of the vessel, the law would imply from the undertaking of the owner that she was in all respects “ fit ” to carry passengers out of said port.</p> <p>4. Damages. «</p> <p>The charterers procured 200 passengers to ship on said vessel out of Hong Kong at rates that would have netted them $14 apiece, or $2,800 in the aggregate, which gains they were prevented from making hy the failure of the owners to perform their contract. Held, that the prevention of these gains was a damage to the charterers which naturally arose from the breach of the contract, and must also have been in the contemplation of tho parties thereto, and therefore they are entitled to recover them in a suit for such breach.</p> <p>5. Money Paic into Ooubt.</p> <p>Money paid into court hy a defendant is an absolute admission that so much is due upon the claim of -the plaintiff and is so far a payment thereof, and tho better opinion seems to be that the defendant may receive said deposit pending the litigation; and, in any event, he may prosecute his action for the remainder of his claim, subject to the risk of paying costs if he recover no more than the tender.</p>

<p>1. Contracts — Evidence.</p> <p>Parol evidence is inadmissible to alter the terms of a written contract.</p>

<p>1. Removal of Causes — Act of 1875.</p> <p>Within the meaning of the third section of the act of 1875, the petition for removal is tiled in time, if filed at the first term at which, by the law and practice of that court, the cause could have been made ready and tried.</p> <p>2. Same — Same—Trial.</p> <p>There Inis been a trial, within the meaning of that act, if a judgment has been rendered in the state court sustaining a demurrer to the answer put in in the suit there, and dismissing a cross-petition with costs.</p>

<p>Circuit Court Jurisdiction — Citizenship.</p> <p>In a suit which has been brought in a circuit court of the United States, it is immaterial, so far as the jurisdiction of the court is concerned, of wliat one of the states the plaintiff is a citizen, provided the parties are citizens of different states.</p>

<p>1. Bankruptcy — Discharge—Application to Annul — Amendment.</p> <p>An application for leave to contest tlie validity of a discharge in bankruptcy cannot he amended, after the expiration of two years from the date of the discharge, by adding another of the acts mentioned in section 5110 of the Devised Statutes to those already specified in the application.</p>

<p>Indictment under section 5467, Eev. St. Motion for new trial.</p>

<p>1. Employment of Unlicensed Engineers — Rev. St. f 4438.</p> <p>Au indictment under Rev. St. § 4438, which provides that it shall be unlawful to employ any person, or for any person to serve, as a master, chief mate, engineer, or pilot on any steamer, who is not licensed by the inspectors, need not charge that the employment was with knowledge that the employe had not been licensed as the statute required.</p>

<p>1. Letters Patent — Pleading.</p> <p>In a suit for the infringement of a patent, a plea which sets up the single defence of non-infringement will be stricken out on motion.</p>

<p>1. Letters Patent — Measure of Damages.</p> <p>The profits of which the patentee is deprived by the manufacture or use of the device, only a single element of which is covered by his patent, constitute the measure of his damages.</p>

<p>1. Letters Patent — Horse Hay-Bares.</p> <p>Letters patent granted to George Whitcomb, October 5,1858, for an improve* ment in horse hay-rakes, are invalid because the improvement was in public use more than two years prior to the application for a patent.</p> <p>2. Comity.</p> <p>Circuit courts will follow the decisions in other circuits, only where the same questions were raised on substantially the same evidence.</p> <p>3. Disclaimer — Beissues.</p> <p>A patentee cannot claim in a reissue what he disclaimed in the original.</p> <p>4. Claims — Void for Uncertainty.</p> <p>Claims must be certain. Therefore, the claim for the arrangement of the rake-head, E, and foot-treadles, H J and G K, or either, in relation to each other, and -the axle, B, substantially as and for the purpose described, is void for uncertainty, because it does not appear whether the patentee intended to cover, by this claim, the two treadles working together for their different purposes, or whether he intended to cover each one as a separate device.</p>

<p>1. Letters Patent — Joinder oe Inventions.</p> <p>The joinder of separate inventions for the accomplishment of a single result in the same patent does not thereby invalidate it.</p> <p>2. Same — Bird Cages.</p> <p>Letters patent Nos. 162,400 and 218,758, granted April 20, 1875, and August 19, 1879, for improvements in bird cages, the result being a cage in which the cross-bands are hollow wires with holes, through which the upright wires are placed, and which are held in place on the upright wires by short bends in the latter, which are brought within the bands, which are then flattened, are infringed by a cage of similar construction, except that the bends extend in the direction of the axis of the bands, instead of radially.</p>

<p>1. Letters Patent — Paints—'Void Reissues.</p> <p>Reissues are void if broader than the original patent.</p> <p>Hence, reissued letters patent Ho. 7,031, dated April 4, 1876, and granted to Damon R. Averill, assignee, for an improvement in paints, the claim being for a mixed liquid paint composed of certain ingredients, “put up in tight vessels or cans,” is broader than the original patent, which made no claim to anjdhing to contain the paint, and void.</p>

<p>1. Letters Patent — Floating Ballast fob Vessels in Poet.</p> <p>Letters patent No. 126,938, issued May 21, 1872, to Demartini & Chertizza, for improved method of ballasting vessels in port by moans of floating logs, to be attached to each side of the vessel, held, not infringed by the use of the device for which letters patent No. 232,425 wore issued September 21, 1880, to Barnes & Gatto, consisting of a pontoon with two compartments affixed to one side of the vessel only.</p>

<p>1. Conversion — Jurisdiction oe the District Court.</p> <p>Where goods, that had been sold to be paid for on delivery, were shipped in the name of the vendors, a shipping receipt given to them, and a bill of lading subsequently given to the vendee, who then absconded, held, that upon the refusal of the master to give the vendors a bill of lading, they could recover against the vessel the value of the goods without a demand; and that, as the vessel was in navigable waters, the tort was maritime in its character, for which an action could be brought in the district court.</p>

<p>1. Coal Trade — Usages of the Port of Chicago.</p> <p>The consignee of a cargo of coal is entitled by the usage of the port of Chicago, -which this court will recognize, to a full day of 24 hours after the vessel reports, in which to furnish her with a dock and to begin unloading.</p>

<p>1. Equity — Delay.</p> <p>Delay defeats equity. So field, wliere one slept on his rights for seven years, and then invoked the aid of the court against a purchaser for value who had been in possession of the property for nearly that length of time with the knowledge of the libellant, and without objection on his part.</p>

<p>1. Dismantled Water-Craft — Salvage.</p> <p>Salvage services can be rendered to a dismantled steam-boat, moored on a navigable river, and undergoing alterations and repairs for the purpose of being fitted for use as a wharf-boat.</p>

<p>In Admiralty. On appeal.</p>

<p>Motion to Strike Cause from the Calendar.</p>

Iii Equity. This is a bill in equity brought to set aside a judgment rendered in the circuit court of Jackson county, Missouri, on the twenty-sixth day of January, 1880, in favor of respondent'Heller, and against respondents Schwed & Newhouse, for $9,512.50. The judgment was by confession, and it appears upon its face to have been upon a promissory note given by said Schwed & Newhouse to said Heller.

The register, to whom was referred the specifications against discharge, reported the testimony, the material parts of which are referred to in the opinion, and recommended the discharge of the bankrupt.

<p>1. Injunction Dissolved — Section 5057 — Limitations—Fraudulent Judgment.</p> <p>An injunction should be dissolved when it can no longer subserve any useful purpose.</p> <p>Where, prior to proceedings in bankruptcy, several executions had been levied on the bankrupt’s property, and the sheriff had advertised it for sale thereunder, when he was stayed by injunction issued in the bankruptcy proceedings, but was afterwards allowed to soli and hold the proceeds, subject to the order of the court; and after paying certain prior executions, about which there was no controversy, there remained in the sheriff’s hands $611, applicable next in order upon a judgment and execution of M.; but it was claimed by the assignee in bankruptcy, and also by certain subsequent execution creditors, that M.’s judgment was fraudulent and fictitious, and M. ’s proceedings under it had been stayed since 1874, and the assignee, though knowing the facts since 1875, had taken no steps to assail M.’s judgment, — held, that the assignee’s right to attack M.’s judgment had, under section 5057, long since expired, and that the injunction should now bo dissolved.</p>

In Bankruptcy. This was a petition filed in this court on the twenty-sixth day of June, 1877, by Frederick M. Peyser, to vacate and set aside a composition made by the above-named bankrupts with their creditors, confirmed by an order of this court on the first day of December, 1875, and to vacate and set aside the discharge of said bankrupts from their debts. The bankrupts were a firm engaged in the manufacture of blank books in the city of Yew York.

<p>1. Letters Patent — Steam Bire-Engtne Pumps.</p> <p>Letters patent No. 42,920, dated May 24, 1864, and issued to James Knibbs, assignor, for( an improvement in steam fire-engine pumps, consisting in the use, in combination with the constant power of the engine to discharge a greater or less number of streams of water, and the same number through longer or shorter lengths of hose, of a passage from the discharge to the suction side of the pump, regulated by a valve, were not anticipated by the engines made by the Amoskeag Manufacturing Company, the engine made by Beaney, Neafie & Co., nor by the patents either of B. A. Wilder, of Joseph Bramah, or of Benoit Duportail.</p> <p>2. Suits to Defeat a Patent — Measure of Proof.</p> <p>To defeat a patent the proof must be clear, beyond any fair and reasonable doubt.</p> <p>. 3. Public Use or Sale.</p> <p>It must be a public sale or use with the consent or allowance of the inventor, that will invalidate a patent.</p>

<p>1. Letters Patent — Lathes for Turning Irregular Forms.</p> <p>The machine covered by letters patent issued to Charles and Andrew Spring, May 10, 1859, for an improvement in lathes for turning irregular forms, is not anticipated by the Perno! machine.</p> <p>2. Comity.</p> <p>In patent cases a circuit court will follow a previous decision, rendered by the court of another circuit, where the same patent was a subject of controversy, only when the evidence that has been introduced in the two cases is substantially the same.</p> <p>S. Infringement — Measure of Proof.</p> <p>Very slight proof of infringement is sufficient,</p>

<p>1. Letters Patent — Plug Tobacco.</p> <p>Keissued letters patent No. 7,362, dated October 24, 1876, granted to Cliarles Siedler for an improvement- in plug tobacco, consisting in a mode of making and identifying each separate plug of tobacco as being of a particular quality, origin, or manufacture, by tin labels or tags having any desired inscription on them, and prongs extending backwards from their edges, are not anticipated by English letters patent No. 1,316, dated April 30, 1874, granted to Gibson, Kennedy & Prior, nor void for want oí novelly.</p>

<p>1. Letters Patent — Extended Term — Statute of Limitation.</p> <p>Where the statute of limitation provides that all actions shall be brought during the term for which the letters patent shall be granted or extended, or within six years after the expiration thereof, the lapse of six years after the expiration of the original term is a good defence to an action for the recovery of damages for the infringement of a patent-right during such term, though the term has been extended subsequently, and the statute has not yet run as to such extended term. The original term and the extended term are two distinct terms.</p>

In Chancery. EXTRACT OF DECISION OF JUSTICE HARLAN ON DEMURRER TO BILL. The third ground of demurrer is a question of limitation under the act of 1870. The act of 1870 contains this short provision : “All actions shall he brought during the term for which the letters patent shall he granted or extended, or within six years after the expiration thereof.” I am not referred by counsel on either side to any adjudication bearing directly upon the question.

<p>1. Letters Patent.</p> <p>Neither claims 1 and 2 of letters patent No. 209,266, nor claim 3 of letters patent No. 225,388 are infringed by the defendant’s instrument.</p>

<p>1. Evidence.</p> <p>Courts will take judicial notice of the boundaries of the different states.</p> <p>2. Contracts or Seamen.</p> <p>Seamen’s contracts to ship on a sailing-vessel for the voyage are terminable at the will of the parties, on her arrival at a port of safety, by the dismasting of tho vessel in a collision.</p>

In Admiralty. The facts in this case, briefly stated, are as follows: The steamboat Guiding Star was built in the summer of 1878 at the port of Cincinnati, entirely on credit, by Capt. W. B. Miller, who continued to be her sole owner and master up to the date of her seizure, in June, 1881.

Libel in personcmn by the- owners of two canal barges against the owners of two tugs, to recover damages for injuries to the barges alleged to have been caused by the negligence of the tugs. The facts were as follows: On October 4, 1877, the barges Mechanic and Free State, loaded with coal, were, with other barges, taken in tow by the tugs Sherman and Sawtelle, belonging to respondents, at Fairmount dam, on the river Schuylkill, for a voyage to"Bordentown, New Jersey.

<p>1. Equitable Assignments — Bill op Intebpleadek.</p> <p>An assignment of a part only of a particular fund is valid in equity.</p> <p>After a loss occurred, the holder oí a policy of insurance gave an order on the company for a specific sum, which was less than the total amount of the policy and less also than the amount due from the company to the assured on this loss. The party named in the order brought an action against the company in a state court in the name of the assured, and the assured subsequently brought a similar suit in this court. While both actions were pending, the insurance company filed a bill of interpleader against the parties to these suits, to have their rights as to the amount due on the policy ascertained. Held, that the court can determine the rights of the parties; and, further, that the order constituted an equitable assignment of the amount named in it.</p>

<p>1. Corporations — Directors—Creditors.</p> <p>The directors of a corporation stand in confidential relations to its creditors, towards whom they are bound to act with perfect fairness. They are, at least, quasi trustees for the creditors; and where the corporation is insolvent, good faith forbids that the directors-should use their position to save themselves, or one of their number, at the expense of other creditors.</p> <p>2. Same — Insolvency—Preferences.</p> <p>Where the board of directors of an insolvent corporation confessed a judgment against the corporation in favor of one of their number,' who was also the president of the corporation and principal stockholder, with a view of giving him priority of lien over another creditor, who was about to obtain a judgment in a judicial proceeding, held, that such preference could not be upheld, but that the two judgments must stand on a footing of equality in respect to the commencement of the lien, and share pro rata in the proceeds of the property available for their payment.</p> <p>-3. Payments — Application of.</p> <p>The law will apply a payment in the way most beneficial to the creditor, and therefore to the debt least secured.</p>

In Equity. This was a hill in equity by distributees against executors to compel an accounting and allotment to the complainants of their respective shares in the estate of Erank ETevin, late deceased.

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

<p>In Bankruptcy. Motion to dissolve injunction.</p>

<p>In Bankruptcy.</p>

<p>1. Letters Patent — Cooked Meats.</p> <p>Reissued letters patent No. 6,370, dated April 6, 1875, and issued to William J. Wilson, for a new and useful improvement in the process for preserving and packing cooked meats for transportation, — consisting in thoroughly cooking the meat by boiling it in water, removing the bone and gristle, then placing it, while yet warm with cooking, into a box or case and pressing it by some suitable apparatus with sufficient force to remove the air and all superfluous moisture, and make the meat form a solid cake, and, finally, closing the box or case air-tight upon the meat, — are void for want of novelty.</p> <p>2. Same — Same.</p> <p>Claim 1, of reissue No. 7,923, dated October 23, 1877, and issued to John A. Wilson, for an improvement in metallic, cases for containing cooked meats, which is for a can for packing food hermetically sealed, and constructed of pyramidal form, with rounded corners and offset ends to support the heads; and claim 3, which is a claim as an improved article of manufacture, of solid meat compressed and secured within a pyramidal case or can so that said can forms a mould for the moat, and permits its discharge as a solid cake, — are also void for want of novelty.</p> <p>3. Sales of Product of Patented Process — Evidence of Validity.</p> <p>In all doubtful eases involving the validity of a patent, the fact that the article made by the use of the process described in the patent has been extensively sold is a consideration of great weight with the court, but it is not enough y>er m to sustain the patent.</p>

<p>In Equity. Demurrer.</p>

<p>1. Letters Patent — Feather Dusters — Rev. St. § 4918 — Interfering Patents.</p> <p>Letters patent No. 177,933, dated May 30, 1876, and issued to Susan M. Hibbard, for an improvement in feather dusters, held to interfere with letters patent No. 154,985, and set aside.</p> <p>2. Estoppel.</p> <p>Under the circumstances, Susan M. Hibbard is estopped to deny that her husband was the inventor of the device in controversy.</p> <p>3. Inventor.</p> <p>One who made a valuable suggestion to the conceiver of the idea of substituting, in a feather duster, feathers of the common domestic fowls in place of ostrich feathers, while he was engaged in a series of experiments with a view to discover some means whereby such feathers might be made pliable, did not, thereby, become the inventor of the duster.</p>

<p>1. Punishment of Seamen.</p> <p>A subordinate officer is not justified in punishing a seaman for an offence which the master has condoned; and the master is liable, also, if he allows the punishment to be inflicted in his presence.</p>

<p>1. Collision — Speed oe Sailing-Vessel — Lookout—Obscuration oe Lights— Third and Eighth Rules oe Navigation.</p> <p>Where the steam-propeller V. collided with tho schooner J. J., in the evening of October 7, between Bedloc's island and Robbins’ reef, in New York harbor, striking her on the port bow, and the J. J. had been sailing at the rate of eight knots an hour, with a strong flood tide, on a N. E. course, with the wind nearly free, until just before the collision, when she for the first time saw the V., and then ported to avoid the collision, but had not seen her lights, nor those of another steamer near tho V., both being long in sight,—</p> <p>Held, that tho failure of the J. J. to see the other lights was due to her not keeping a proper lookout.</p> <p>And further held, that had. there been, as claimed, a fog so dense as to obscure the Y.’s lights, it would have been, under the circumstances, carelessness in the J. J. to sail at such speed where she was likely to meet other vessels ; that the momentary appearance and disappearance of the red light of the J. J. several times in succession, as seen from the Y. before the collision, the green light being constantly in view, was not caused by the fluctuations in the J. J.’s jib shutting out the red light, but to unsteadiness in her navigation.</p> <p>And further held, that had the J. J. been approaching head on, as claimed, and had the red light been continuously hidden by the jib, as claimed, except the momentary fluctuations just before the collision, the V. could not be charged with fault in not avoiding the J. J., and it would have been the fault or misfortune of the J. J. in not complying with rules 3 and 8, Rev. St. § 4233, regulating the lights on vessels, (Hoben v. Westover, 2 Fed. Rep. 91, distinguished ;) that the V. was not in fault, but the collision was wholly due to the J. J. changing her course in the confusion occasioned by her failure sooner to see the other’s lights, and by her careless navigation.</p>

This case had been decided upon appeal from the district court, the opinion being reported in 9 Fed. Rep. 126.

I» Equity. Motion for rule on defendant to show cause why he should not produce certain books and papers alleged to be in his possession. Complainant filed no affidavit in support of his motion.

<p>1. Equity Jurisdiction — Bill to Perpetuate Testimony.</p> <p>A bill for the taking of testimony in perpetuam rei memoriam will not be entertained, if the matter in controversy can be made the subject of immediate judicial investigation by tbe party who flies the bill.</p> <p>2. Rev. St. §) 866, 867.</p> <p>The effect of the provision of section 867 of the Revised Statutes is not to exclude testimony taken under section 866, but to permit the courts of the United States to admit in evidence testimony perpetuated according to state law.</p> <p>8. Invalid Letters Patent — Suits to Annul.</p> <p>Proceedings to annul letters patent are wholly within the control of United States attorneys. There is no absolute duty imposed upon them to commence such proceedings at the request of any party who declares a patent to be invalid.</p>

<p>Buling on Demurrer.</p>

Mr. and Mrs. Hall are a gentleman and a lady aged 85 and 76, living at Town Creek, Alabama. Last April they desired to go to Texas, and purchased three round-trip tickets to Memphis for themselves and daughter.

<p>1. Legacy Tax — Act of 1864 — Trust Deed.</p> <p>The act of 1864, (13 St. at Large, 28S, § 124,) imposing a legacy tax on certain personal property, embraces cases only where the person to whom the beneficiaries are related died possessed of the property.</p> <p>Where S. D.,' in 1864, before the passage of the act, executed to trustees a valid deed of a large amount of personal property in trust to collect the interest and pay it to himself and his wife until the death of the survivor, and, thereafter, to pay over and distribute the principal to his children, and the grantor thereafter died in 1866, and his wife in 1868, and thereupon the whole property was immediately distributed among the children, and the grantor having by the state law “ no estate in law or in equity” in the property so transferred, and not being possessed thereof at the time of his death, held,, that no tax accrued to the government, under section 124, upon the shares distributed by the trustees to the children.</p>

<p>1. Creditors’ Liens on Property op Third Parties — Release—Application op Consideration.</p> <p>Where a creditor of a bankrupt, has a lien on the property of a third party, as part of the security for his debt, he cannot release his lien for a consideration without crediting the amount of the consideration on his claim. ;</p>

<p>1. Discharge.</p> <p>A' bankrupt’s application for a discharge is seasonable if made before the discharge of the assignee.</p> <p>2. Same — Transfers.</p> <p>A year before his failure the bankrupt made a transfer of some of his property without consideration. Held, on the evidence, that it was not made in contemplation of bankruptcy</p>

<p>1. Forfeitures — Liens for Freight.</p> <p>Where freight is earned before the government makes its election whether to declare the merchandise, of which a false and fraudulent entry has been made, forfeited, or to recover its,value by suit against the parties making the entry, and the former proceeding is finally chosen and the property is sold, held, that such freight must be paid out of the proceeds of the sale, the owners of the vessel having no knowledge before it was earned of any offence, committed or premeditated.</p> <p>2. Same — Delivery.</p> <p>Manual delivery of the cargo by the ship-owners to the consignees does not, of itself, operate necessarily to discharge their lien for freight. Where the intent of the ship-owners in making such delivery is to discharge the cargo, and not to deliver it, their lien for freight remains in full force.</p>

<p>1. Trade-Masks— Accounting.</p> <p>K., who was engaged largely in the business of packing blues, on bis own account and for others in tlie trade, put up the blues covered by the infringing trade-mark for the firm of B. & Co., who sold them, paying K. for the work and labor of packing them. K. was adjudged an infringer, an injunction issued against him,.and the decree directed an accounting. On motion to strike from tlie decree the clauses directing an accounting, held, that the complainant was entitled to an accounting to enable him to ascertain what profits were made by K. by his work and labor, and what damages resulted therefrom.</p> <p>2. Costs.</p> <p>In trade-mark cases the ordinary rule is that a decree for an infringement and an injunction carries costs ; and this rule applies, though no demand was made before suit that the defendant should cease to use the infringing trademark. , '</p>

<p>1. Letters Patent — Prior Discovery and Use.</p> <p>Prior discovery and successful use of the patented process is a complete defence to a suit for infringement brought by the patentee.</p> <p>2. Same — Tobacco Plugs.</p> <p>The invention of a process for finishing and marking tobacco plugs, claimed by Miller & Worley in reissued letters patent Mo. 8,060, dated January 29, 1878, was anticipated by Ed. P. Smith.</p>

<p>In Equity. Motion for preliminary injunction.</p>

<p>1. Letters .Patent — Suit for Infringement — Defence.</p> <p>Whether a knowledge, by persons residing in this country, of a foreign use of a patent is a defence to a suit for infringement, qume.</p>

<p>1. Towing — Common Carrier.</p> <p>Semble, that a steamboat engaged in towing a barge is not a common carrier.</p> <p>2. Towing-Boat — Bound to Reasonable Skill and Cabe.</p> <p>Although not held to the responsibility of a common carrier, the towing-boat is bound to the exercise of reasonable skill and care in everything pertaining to its employment.</p> <p>3. Same — Same—Special Contract — Negligence.</p> <p>Semble, that a boat engaged in towing a barge cannot relieve itself by contract of the consequences of its own negligence.</p> <p>4. Special Contract — Burden oe Proof.</p> <p>The burden of proving a contract that the barge was to be towed at the risk of its owner, is upon the towing-boat asserting such contract. In this case, held, that there was no contract to relieve the towing-boat of the consequences of its negligence.</p> <p>5. Towing — Barge of Oil in Bulk — Negligence—Case Stated.</p> <p>A steam-boat agreed to tow a barge, loaded with oil in bulk. The barge was new, and properly adapted to the purpose for which it was used. The barge sprung a leak and a considerable quantity of oil ran out upon the water or ice. This was probably caused by negligence of the towing-boat in handling the barge; but, whether that was the fact or not, those in charge of the towing-boat knew of the leak, and without examination as to whether the surface of the water was covered by oil, a shovel of fire ashes was thrown out upon the water, which ignited the oil and blew up the boat. Held, to have been negligence, and that the towing-boat was liable for the damage.</p>

In Admiralty. Libel by the Pennsylvania Railroad Company against "William Gilhooley, setting forth that in December, 1876, respondent had filed his libel in the United States district court for the southern district of New York, against the present libellant, to recover damages for injuries to his canal-boat; that the said district court entered a decree in his favor; that this decree was after-wards, upon appeal, reversed by the circuit court for said district, and a decree…

<p>In Admiralty. On appeal.</p>

<p>1, Admiralty — Maritime Liens — Delay—Waiver.</p> <p>In the absence of any satisfactory explanation, delay in enforcing maritime liens, after a reasonable opportunity to do so, will be deemed a waiver of such liens, as against subsequent purchasers for value and without notice.</p>

The above-entitled cases were, by order of the court, tried together..

<p>Garnishee Proceedings. Motion to remand.</p>

<p>1. Corporations — Powers.</p> <p>The charter of a corporation is the measure of its powers, and the enumeration of these powers implies the exclusion of all others.</p> <p>2. Same — Particular Charter Construed.</p> <p>The Manchester Iron & Steel Company, a private corporation incorporated by an act of the legislature of Pennsylvania, has no power under its charter to lease its plant.</p> <p>3. Same — Power of the Board of Directors.</p> <p>Even if such power exists in the corporation, the board of directors cannot exercise it against the protest of the owner of a majority of the stock.</p>

Appeals by W. A. Piemen, assignee, from the orders of the district court directing the payment of judgments of Baker and Dougal, out of the proceeds of the sale .of the real estate, of the bankrupt, upon which they were -liens.

<p>1. Confiscation Act of August 6,1861.</p> <p>A sale under the confiscation act oí congress, approved August 6, 1861, (12 St. 319,) conveys to tho purchaser the fee of the property, and not the life-estate only of the owner thereof.</p> <p>2. Pardon.</p> <p>It seems, that a pardon does not remit forfeitures where the rights of third persons have intervened.</p>

<p>1 Reissue No. 8,589 — Grain Drills — Validity—Infringement.</p> <p>Reissued letters patent No. 8,589, granted February 18, 1879, to Charles F. Davis, for improvement in grain drills, held valid and infringed. Complainant’s invention being a grain drill, constructed to shift or change the seeding shoes from a straight to a zigzag line, or vice versa, and to admit of their being raised separately or all together, and consisting in connecting the shoes by means of drag-bars and yokes to a crank-shaft mounted on the forepart of the main frame, and by means of levers, one for each shoe, in such a manner to a rear shaft, actuated by a lever within reach of the operator, as to permit of all the shoes being raised simultaneously, such shoe levers having also independent levers or handles, so that each may move irrespective of any other, the lower end of the operator’s lever having connected to it a rack-bar, taking into a pinion fastened on the end of the crank-shaft, and, when actuated, shifting the shoes into a straight or zigzag line, held infringed by defendant’s device, in which every alternate shoe is connected to an immovable part of the frame, and every other alternate shoe is connected to a swinging cross-bar, actuated by a lever at the rear of the machine, to shift the shoes attached to such movable frame or cross-bar, and in which springs are arranged to hold the movable shoes normally in a straight line, and urge them into a straight line, when the power exerted upon the operator’s lever in shifting is released.</p>

<p>1. Letters Patent — Box-Loops for Carriage Tops — Reissue.</p> <p>The original patent Ho. 95,004, September 21, 1869, was for “ a box-loop, struck up or cast from one piece of thin metal, with lugs or spurs upon its edges, and applied to a carriage top by passing said lugs through the same and through a metal plate, and bending them down upon the surface of said plate.” Held, that the invention was really of the loop ready to be affixed, and that the plate was only an adjunct, making the article better, but not of the essence of the invention, and that a reissue which claimed “ the box-loop formed out of thin plato metal, with lugs or spurs projecting therefrom to affix it to a carriage top, either with or without the plate,” was good and valid.</p> <p>2. Infringement.</p> <p>Reissue Ho. 6,974, for a box-loop having a top and two sides, with lugs or spurs projecting from the edges or corners next the surface to which they are to be applied, held to be infringed by a loop having a closed bottom,.with lugs punched out of the bottom.</p> <p>3. Hovelty — Adaptation of Old Appliances.</p> <p>Almost all inventions at this day that become the subject of patents are the embodiment and adaptation of mechanical appliances that are old. In that consists the invention.</p> <p>4. Double Use.</p> <p>Where an article exists in a given form, and .applied to a given use, and is taken in substantially the same form and applied to an analogous use, so as to make a case of mere double use, there is no invention.</p> <p>5. Prior Device not Anticipating Patent.</p> <p>A device will not anticipate a subsequent patent where it cannot be used as a substitute for the device described in the patent without invention.</p>

<p>1. Collision — Lights.</p> <p>The fact that the libellants’ boat did not display the lights required by law is no defence to an action for damages by a collision, when the want of lights did not cause or contribute to it.</p> <p>2. Chicago River — Negligence.</p> <p>Semble, that it, is negligence for any craft to navigate the Chicago river, between the Main-street bridge and Allen’s slip, during the season of navigation, and when the stream is crowded with other oraft either moving or moored to the bank, at a greater rate of speed than three miles an hour.</p>

<p>1. Appeal — Costs.</p> <p>Where both parties appeal, and the decree of the ¿ower court is affirmed, neither party recovers costs of the appellate court. ’</p>

<p>1 Equity — Appeal—Amendment of Substance.</p> <p>On appeal in equity from the district court of the United States, the circuit court can permit an amendment of substance.</p> <p>2. Same — Same—Same—Practice.</p> <p>In the circuit court, there is no settled practice to allow such amendments in appeal eases in bankruptcy.</p> <p>8. Same — Same.</p> <p>It seems, that in admiralty and revenue cases brought to that court on appeal the practice is well settled to allow amendments of this nature</p>

In this ease an execution was issued upon a judgment obtained by tbe United States against tbe defendants upon a warehouse bond, and the marshal made return to this term of the court that no levy was made, as no goods and chattels, lands and tenements of the defendants could ho found in excess of the homestead and personal property exemptions allowed by the constitution and laws of the state upon execution for any debts.

<p>Motion to Remand.</p>

<p>1. Constitutional Law — Wharfage Tax — Prohibition on Municipal CORPORATIONS.</p> <p>A municipal corporation cannot exact a charge upon vessels for entering or leaving a port, or remaining therein, nor levy a tax on vessels and water-craft entering its port, and using the wharves and landings, for the general revenue of such corporation.</p> <p>2. Same — Same—Power of Municipal Corporation,</p> <p>A municipal corporation, owning improved wharves and other artificial means, which it maintains at its own cost, for the benefit of those engaged in commerce upon the public navigable waters of the United States, may charge and collect., from parties using its wharves, such reasonable fee as will fairly remunerate it for the use of its property.</p>

<p>1. Partnebsiup — Accounting.</p> <p>An accounting between partners cannot be had on affidavits on an interlocutory motion, but must be had in the orderly progress of a suit.</p> <p>2. Same — Injunction.</p> <p>A temporary injunction may be granted, pending a suit for an accounting, to prevent one partner by a sale of the partnership property from changing the status of the other partners in respect to it, where the injury resulting from such sale could not be remedied.</p>

<p>1. Government Lands — Innocent Trespasser.</p> <p>It is a good defence to an action of trover against an innocent trespasser upon government lands, for tlie value of-timber cut by him therefrom, that he afterwards entered the land, from the government, paid the price therefor and the costs up 'to the time of entry.</p> <p>2. Measure op Damages.</p> <p>When a wilful trespasser cuts and rem oves timber and converts it into logs ties, or piles, the measure of. damages is the market value of the latter, in cash, at the time and place of their sale and delivery, and not the value of the stump-age merely.</p>

<p>1. Attprney — Compensation for Services — Lien.</p> <p>Prima facie an attorney has a lien for compensation, on the papers in his 'hands where he has rendered some services.</p> <p>2. Same — Suit for Compensation — Contract.</p> <p>The question whether there was such a contract, between an attorney and his client that the former, having given up his employment, has no claim to he compensated, must be determined in a suit brought by the attorney to recover •the compensation, the lien remaining in statu quo meanwhile. If suit be no* brought within a limited time and diligently prosecuted, the court will order the papers to be given up.</p> <p>8, Same — Same—Same.</p> <p>Except by consent such a question cannot be determined by the court in u. summary way.</p>

This was an indictment, under section 3324 of tho Revised Statutes, for a failure to efface a stamp from an empty cask which had contained distilled spirits. The defendant was a duly-licensed retail dealer of distilled spirits. The business was carried on in a small room in Ms dwelling, and was under the exclusive control of Ms wife. - She kept the key of the room, and never allowed her husband, who was an intemperate man, to enter except when she was present.

<p>1. Crimes — Perjury—Match-Stamp Bond — Affidavit of Surety.</p> <p>The affidavit required by the regulations of the treasury department to be made by a surety upon an ordinary match-stamp bond, to secure the payment due to the United States for internal revenue stamps to be delivered on credit to a manufacturer of matches, setting forth the pecuniary responsibility of the surety, is an instrument authorized by law ; and if statements made therein as to his pecuniary responsibility are false to his knowledge, the surety is guilty of perjury.</p>

<p>1. Letters Patent — Destruction of Model — Mistake in Drawing — Measure of Proof.</p> <p>Where the original model which was filed in the patent-office has been destroyed, the fact that a mistake has been made in t-h'e drawings on file, on which the patent was issued, must be very clearly established before the court will allow them to be corrected.</p> <p>2. Same — Grain Separators.</p> <p>Letters patent No. 167,570, granted September 7, 1875, to complainant, for an improvement in grain separators, are not infringed by the defendants’ machine.</p>

<p>1. Letters Patent — Violation of Injunction.</p> <p>Where defendant rendered itself amenable to the jurisdiction of the court by appearing in the action, and was enjoined from manufacturing or selling articles infringing upon complainant’s patent, held, that the injunction was violated by the sale of such articles outside of the territorial jurisdiction of the court, whether they were sent within such jurisdiction or not.</p>

<p>1. Letters Patent — Fertilizing Compound.</p> <p>Patent No. 206,077, July 16, 1878, granted to Boykin, Carmer & Co. for an improved fertilizing compound, held to be invalid for want of any patentable invention or discovery.</p>

<p>1. Letters Patent — Telegraph Wires — Old Process — New Use.</p> <p>An. application of an old process to a new use without substantial alteration or change is not patentable.</p> <p>Reissued letters patent Nos. 6,954 and 6,955, dated February 29, 1876, and granted to the Western Electric Manufacturing Company, as assignee of Joseph Olmsted, for an improvement in insulating telegraph wires, the invention consisting in the discovery that compression of the paraffine into the pores of the fibrous covering by any well-known mechanical appliance would be advantageous, are void for want of novelty.</p>

<p>1. Steamer with a Tow — Sailing Roles 20 and 21.</p> <p>Where there is ample sea-room to make every maneuver necessary to insure safety, a si earner with a tow is bound by sailing rules 20 and 21 of section 4233 of the Revised Statues — which require a steam-vessel (1) to keep out of the way of a sail-vessel, when the two vessels are proceeding in such directions as to involve risk of collision; (2) when approaching another vessel so as to involve risk of collision — to slacken her speed, or, if necessary, stop and reverse.</p>

In Admiralty. The tug Leonard Richards was employed to assist the tug Levi Davis in towing a raft and catamaran, loaded with lumber, from New York to Barnegat inlet. The Davis was able to go over the bar at Barnegat, but the Richards was not. The tow was in charge of a pilot supplied by the Davis, which was the leading boat.

<p>1. Salvage — 'Wrecking Vessels — Bight oe Cjsew to Salvage Compensation.</p> <p>The fact that a salving vessel was used in the wrecking business does not compel the inference, that the monthly wages agreed to be paid the crew were to be in lieu of any share in any salvage reward to which otherwise they might become entitled.</p>

<p>1. Location of Mexican Grant — Fraud—Laches.</p> <p>A Mexican land grant, made in 1846, was duly confirmed by the board of land commissioners, acting under the act of congress of March 3,1857, the confirmation was affirmed by the supreme court of the United States as early as the December term, 1863, and proceedings for locating the grant were, under the decree of confirmation, pending between the United States and the claimant under the grant when the grantors of the complainant located certain mining claims under the act of congress of 1866. Subsequently a patent was issued to the claimant under the grant, embracing the land on which these mining claims were located. This bill was filed against the patentee in September, 1880, alleging that the grant was fraudulently located. Held, that the location was res adjudícala; further, that the suit was barred by lapse of time.</p>

<p>1. Railroads — Reorganization—Bill by Creditor.</p> <p>Wkere an agreement was entered into between the holders of the mortgage bonds and other creditors of a railroad corporation, after proceedings had been instituted and were pending for the foreclosure of the mortgage liens on its property, whereby provision was made for the appointment of a committee, who were to obtain a decree of foreclosure in the pending suit and purchase the railroad, its rights, privileges, franchises, and property for all the holders of bonds, stocks, and indebtedness of the old company, at the foreclosure sale; for the incorporation of a new company; for the delivery, by the holders, of the bonds,'indebtedness, and stock of the company to a third party, subject to the order of the committee; for the conveyance by the committee of its purchase to the new corporation, who should mortgage the same by giving first and second mortgages to secure the issue of a large amount of bonds, and who should issue stock; for giving (1) to the holders of the mortgage bonds of the old company, in place of their old securities, the new bonds, secured by the two mortgages, at rates fixed by tlie agreement; (2) to the holders of the floating debt of the old company, in place of their surrendered evidences of indebtedness, second preferred income bonds of the new company at par (these bonds being secured by the second mortgage) to the full amount of their respective debts and interest; (3) to the holders of the first preferred, the second preferred, and the common stock of the old company, when surrendered, stock in the new company to the amount, respectively, of 50 per cent, t 30 per cent., and 25 per cent., of the stock oí the old company which they had owned: luid, that a bill by a holder of a part of the floating debt of the old company, charging that this plan of reorganization is fraudulent as against the creditors of tlio old company, and seeking to have the stock of the new company, provided in the agreement to be issued to the stockholders of the old company, placed in the hands of a receiver and sold, and the proceeds applied to the payment of tlie plaintiff and such other creditors as should come in and be made' parties, will be dismissed for want of equity, on the ground that the plan has a due regard for the interests of all classes of creditors and stockholders, and the hill fails to show that any injustice was intended or has been done to this creditor.</p>

<p>Application for an Injunction pendente lite.</p> <p>The facts are stated in the opinion of the district judge.</p>

In Equity. Demurrer to bill of complaint. This suit is brought against the city of Duluth and the village of Duluth to recover the coupons overdue upon bonds of the city of Duluth, in this district. A demurrer is interposed by the village of Duluth.

<p>1. Rev. St. New York, vol. 1, p. 738, § 139, Construed — Mortgages.</p> <p>Revised Statutes of New York, vol. 1, p. 738, § 139, which declares that no mortgage shall he construed as implying a covenant for the payment of the money, and that if there be no express covenant for such payment in the mortgage, and no bond or other separate instrument to secure payment, the remedy of the mortgage shall be confined to the land, construed not to mean that, in the absence of an express covenant in the mortgage for the payment of the debt, and any bond or other separate instrument to secure payment, a personal action cannot be maintained for a mortgage debt when proved by competent evidence, whether in writing or parol’; but. that an action for a debt secured by mortgage cannot be sustained merely by the production of the mortgage, when it contains no express covenant to pay the debt.</p>

March, Price & Co. sued Mrs. E. A. Clark on the following paper: $548. Albany, Ga., May 7,1880. On fifteenth October next, pay to myself, or order, five hundred and forty-eight dollars, for cash furnished me to make my crops; this to be an advance under my mortgage to you of the twenty-third day of January, 1880. Homestead and other exemptions and protest waived. [Signed] E. A. Clark.

<p>1. Depositions — Signatube—Stenogbapheb’s Notes.</p> <p>Upon an order of reference to a register in bankruptcy to take proofs, the depositions of witnesses taken by a stenographer, before a register, and after-wards reduced to long-hand, will be suppressed if not read to and signed by the witness, according to general order 10, after they are written out, though the witness’ subsequent attendance for that purpose could not be procured.</p> <p>The reference in section 5003 to the practice in equity is controlled by general order No. 10, adopted by section 4990.</p>

<p>3. Letters Patent — Take-Ups—Reissues—Hew Matter — Infringement.</p> <p>Reissued letters patent granted to George H. Holmes, June 25, 1878, for an improvement in take-ups for looms, are not invalid because broader than the original. They are not infringed, however. In- the machine used by the defendant, as motion is not transmitted in the two machines by the same or equivalent means.</p>

<p>1. Letters Patent — Pitching Barrels — Invalidity for Want of Novelty.</p> <p>Letters patent No. 42,580, issued to J. F. T, Holbeck and M. Gottfried, May 3, 1864, for a new and. improved mode of pitching barrels, are void for want of novelty.</p> <p>2. Old Mechanism — Analogous Use.</p> <p>There is no patentable invention in using the same mechanism for the purpose of applying' a blast of hot air to the interior of beer casks to heat them, as had been previously used to apply a blast of hot air, of the same character, to the interior of moulds and other receptacles for the same purpose.</p>

<p>1. Letters Patent — Middlings Elour.</p> <p>Under certain contracts to which Robert L. Downton and Edward P. Allis & Co. were parties, the latter acquired no rights of ownership in an invention covered by patent No. 162,157, for a process in crushing grain or middlings.</p>

<p>1. Maritime Liens — Mortgages—Priority.</p> <p>Maritime liens have priority over mortgages.</p> <p>2. -Liens under State Laws — Same—Same.</p> <p>As between a lien by force of a state statute for materials and supplies furnished a vessel in the home port, and a mortgage lien, the lien that attaches first has priority.</p> <p>3. Liens.</p> <p>One who advances money to the officers of a boat, with which to purchase a commodity to be shipped by the boat to him, has no lien on it for the amount of money so advanced, although the officers fail t.o make the purchase or refund the money.</p> <p>4. Same — Lease op the Bar op a Vessel — Sale oe the Vessel within the Term.</p> <p>Where rent is paid in advance for the lease of the bar of a vessel and its privileges, and the vessel is sold before the term expires, the lessee has no lion on the vessel for a sum of money equal to the rent paid for the unexpired part of the term.</p>

<p>In Admiralty. On appeal.</p>

<p>1. Maritime Liens — Towage Service — Sale under a State Law.</p> <p>By the maritime law of the United States, one who performs towage services for a domestic vessel, on navigable waters of the United States, acquires a maritime lien on the vessel, which he can enforce by an admiralty proceeding in rem; and the lien cannot be destroyed by a subsequent sale of the vessel under a state law.</p> <p>2. Laches,</p> <p>On the facts of this case, a defence based on the ground of laches must fail.</p>

<p>1. Mabine Insubaítce — Policy Construed.</p> <p>In a printed policy ot insurance llie assured warranted “ not to use ports and places in Texas, except Galveston ; nor foreign ports and places in the Gulf of Mexico.” On the margin was written the following: “To be employed in the coasting trade on the United States Atlantic coastand underneath, also in writing, the words “ Permitted * * * t,o use gull' ports not west of New Orleans. ” The vessel was lost in the Gulf of Mexico, west of New Orleans, while on a voyage from Maine to Morgan City, Louisiana, aplace west of New Orleans. Held, that when the loss occurred the vessel was on a voyage not permitted by the policy. Libel dismissed.</p>

<p>1. Equity Pleading — Parties—Demurrer.</p> <p>A demurrer to a bill in equity for want of the necessary parties must name the proper parties.</p> <p>2. Same — Negative Plea.</p> <p>A negative plea must be supported by an answer to so much of the bill as is denied.</p> <p>3. Same — Parties—Plea.,</p> <p>A plea to a bill brought by certain stockholders in a railroad corporation which set out that there were, when the bill was brought and the plea filed, certain other stockholders, who are not joined in the bill as parties, who are citizens of certain states, naming them, whose names are known to and ascertainable by the orators, and not by the defendants, held to be insufficient, and overruled.</p> <p>4. Same — Legal Proceedings in a State Court — Plea.</p> <p>A bill in equity was brought by certain stockholders in the Vermont & Canada "Railroad Company, among others against the Central Vermont Railroad Company, in possession, to recover the possession of that road for the Vermont & Canada Railroad Company. The Central Vermont Railroad Company pleaded that it was in possession as a receiver of a state court, and set forth the proceedings upon which its possession took place. Held, that such rights must stand for trial according to the usual course. Plea overruled.</p> <p>5. Jurisdiction — State and Federal Courts.</p> <p>"When the two suits are not brought upon the same facts, nor for the same relief, the pendency of a suit in a state court cannot be successfully pleaded to the further prosecution of a like suit between the same parties, or their representatives, in a federal court in the same district.</p>

<p>1. Trusts — Action by Cestui que Trust in His Own Name —Wiien It Can be Maintained — Demurrer.</p> <p>A bill in equity is not demurrable because brought by a cestui que trust in his own name and on his own behalf, where it appears in the bill that the trustees have acquired adverse interests and been made defendants.</p>

<p>1. Mortgage Bondholders — Transferees — Personal Claims against the Trustees.</p> <p>Personal claims, by holders of mortgage bonds, against trustees in the mortgage on account of the bonds, do not pass to persons subsequently acquiring such bonds, unless by an agreement to that effect.</p>

<p>1. State and Federal Courts — Conflict of Jurisdiction.</p> <p>The fact that the property is being administered upon in proceedings taken in a state court, and that the plaintiff might apply to that court for relief, is no bar to the institution of proceedings in the circuit court of the United States.</p>

<p>1. Order for Appearance of Ron-Resident Defendants tn Certain Equity Suits under Section 8, Act of March 3, 1875, (18 St. at Large, 472.)</p> <p>A marshal’s return of “ not found” in tlie district where the suit is brought is not a condition precedent to the making of the order contemplated hy the act of March 3, 1875, § 8, (18 St. at Large, 472.) Such order may be made upon a proper showing by affidavit alone.</p> <p>2. Same — Return-Day.</p> <p>The court may, in such order, fix any day certain for the appearance of the non-resident defendant, and is not limited to the usual rule-days in equity.</p> <p>3. Same — Service of.</p> <p>Such order is not a “ subpoena” or “ process” within the meaning of rulo 15 or 17, requiring service by the marshal or his deputy of the district where the suit is brought, or by some one specially appointed therefor by the court. JSTo particular mode of service or proof thereof is prescribed by the act. Service by the marshal or his deputy of the distinct whereof the non-resident defendant is an inhabitant, or wherein he is found, and the return thereof in the usual form or by affidavit, are sufficient.</p>

<p>1. Contracts — Offer, to Pat — “All Claims” — Executors — Survival of Causes of Action — Penalties and Forfeitures — Duties.</p> <p>W-, an importer, against whom a personal action was pending in the district court of the United States for penalties alleged to have been incurred on account of certain importations of tobacco, made an offer to the government to pay a certain sum on the suit in the district court in settlement of all claims it had against him. The government agreed to settle all the known claims, specifying them, for that sum, requiring immediate payment, and that part of the sum so paid be considered as having been paid for duties, and the remainder only as a penalty. Soon afterwards W. died; before either he had paid the money or the government had tendered him a release. In an action against his executors, in which both parties agree that all suits and causes of action for penalties and forfeitures died with W., and that the right of action for duties survived, it was held: (1) that the acceptance conformed to the offer; (2) that as no tender of a release had been made by the government before the death of W., and after that occurred the occasion for a release had passed, the contract was not binding upon the executors.</p>

In Equity. Demurrer. The bill alleged that the Alexandria & Bloomfield Railroad Company was duly incorporated by an act of the general assembly of the state of Missouri, and that by a provision of its charter its' stock was made exempt from taxation for the period of 20 years after its completion, which period has not yet expired; that said road ran through the counties of Clark, Scotland, and Schuyler, in the state of Missouri, to a point on the northern boundary line of…

The facts alleged in the petitions in the above entitled cases are, so far as it is thought necessary to set them out here, substantially as follows: Certain bales of cotton, owned by different parties in each case, were lost while in the custody of the defendant, a common carrier, and while being transported by it for hire.

<p>Action at law, tried before the court without a jury upon an agreed í tatement of facts.</p>

<p>■In Bankruptcy. Upon petition of Henry C. Robinson, assignee of said bankrupt, to strike off certain claims of Swan, Clark & Co., proved before the register.</p>

<p>1. Letters Patent — Cultivators—Infringement.</p> <p>Tlio tongueless, stracldle-row cultivator, which lias an arched or bent axle, with wheels revolving upon the journals at the end of the axle, and plows attached to the axle by a joint allowing the plows to swing vertically and latterally, the axle being jointed in the middle of tlio arch by a torsion joint, which is prevent ed by lugs from turning only a certain distance, does not infringe patents issued, respectively, to Schroeder, Eichholtz, Norton, Pattee, and Poling.</p> <p>2. Combinations of Old Parts.</p> <p>A patent for the combination of old parts is not infringed by a different combination of the same parts to produce the same result.</p>

<p>1. Res Adjudioata — State Courts — Estoppel—Supplemental Answer — Admiralty — Evidence—Stay of Proceedings.</p> <p>Where the substantial issue in two actions is the same, although the particular claims or causes of action be different, a trial and judgment upon the merits in the one action may be pleaded or given in evidence as an estoppel upon the same matter in the other.</p> <p>The rule is the same, though the one action be in admiralty and the other in a state court or a foreign jurisdiction.</p> <p>Where the owners of the brig T. C. chartered her to W. & Co. to proceed to Turk’s island for a cargo of salt, to be furnished with quick dispatch, and the brig went there, and, after waiting eight days for a cargo, and none being furnished, returned to New York, refusing to wait longer or to go elsewhere for a cargo, as desired by W. & Co.; and the owners thereupon sued the charterers in a state court for breach of the contract in not furnishing the cargo as agreed, and the charterers then sued the owners’ by libel in this court for breach of the contract in not waiting longer or going elsewhere for a cargo as desired, and the defendants in each case set up a breach of the charter-party by the opposite side: 7ield, that the substantial issue in each action was the same, and that a judgment in favor of the plaintiffs, after a trial by jury in the state court, might be set up as an estoppel in favor of the defendants in the action pending in this court; that leave should be given to set up the recovery of such judgment by supplemental answer; and, as there was an appeal pending from the judgment in the state court, the cause, on being reached for trial in this court, should be stayed until the determination of the appeal.</p>

<p>1. Libel — Exceptions—Insurers—Collision.</p> <p>The libellant may sue for himself and for the use of another where both are entitled to recover upon the same state of facts and the interest of the latter has arisen from subrogation to part of the right of the former.</p> <p>Where goods are injured by collision at sea, and the insurers pay part of the loss, the owner of the goods may file a libel for his own loss unpaid, and for the use of the insurers to the extent of the lo'ss paid bv them. The libellant’s authority to represent the insurers must appear to entitle him to recover for their use; but this will not be considered, upon an exception to the general want of power, to maintain a libel for the use of another.</p> <p>Upon exceptions, held, that the libel, for the purpose of a sufficient identification of the goods, must state at least the description of them given by the bills of lading, and the date thereof, and also the essential elements of the contract of insurance upon which the rights and liabilities of the parties may depend.</p>

<p>1. Collision — Anchor Light — River Navigation.</p> <p>Vessels at anchor at night in the vicinity of the navigable part of a river are bound to maintain an anchor light.</p> <p>The schooner Qt. B. R. anchored at sun-down in the James river, near the White Shoal light. The river is there about four miles wide. The White Shoal is in the middle of the river. The usual channel, with from 26 to 16 feet of water, is about half a mile in breadth along the southerly side of the shoal. The place of anchorage was claimed to be outside of the channel, in about 15 feet of water only; but the various estimates of distance from the light and compass hearings therefrom would bring the schooner more in the channel. The A., another schooner, anchored nearly abreast of the G. S. It., hut one or two hundred yards nearer to the southerly shore. The steamer 1ST., coming down the river at 11 p. m., passed about 50 yards to the north of the schooner G. S. R., on which no light was seen, the light of the schooner A. being visible. The night was cloudy and dark, but not thick. At 2 a. m. the steamer I. B., whose usual course is a little to the southerly of the N.’s course, came down the river, having the A.’s light a little on her starboard bow. When near her, the I. B. veered to port to avoid the A., and in doing so immediately ran upon the schooner G. S. R., no light being seen upon the latter. No anchor watch was kept upon either schooner. The usual anchor light was sot on the G. S. R. on the evening before.</p> <p>Held, upon a conflict of testimony as to whether the schooners wore in or far out of the channel, that the schooner G. 8. R. was in or so near the navigable part of the river that she was hound to maintain the usual anchor light; that she had not done so, and that the collision was to bo solely attributed to that fault on her part; that the I. B. was not so far out of her rightful course as to make her answerable for the collision, in the absence of a proper light upon the schooner.</p> <p>Whether the schooner was also bound to keep an anchor watch, or exhibit a torch-light to the approaching steamer, under section 4234, quaere.</p>

<p>1. Partnership — Real Estate.</p> <p>Real estate owned and held by copartners as partnership property, and brought into the Arm stock, is not converted absolutely and for all purposes. It is to be treated as personalty, in so far as may be necessary to secure the payment of the Arm debts and advances made by the partners respectively, but ior every other purpose it remains real estate.</p> <p>2. Same — Judgment—Liens.</p> <p>A judgment against a partnership for a partnership debt, entered by confession of all the partners, is a lien upon the partnership real estate.</p>

<p>1. Equity — Issues of Fact.</p> <p>Neither party to a suit in equity brought in a federal court has an absolute right to have a question of fact arising in the cause passed on by a jury.</p>

<p>1. Testimony — Rule 69.</p> <p>Equity rule 69 is imperative that no testimony taken, after time shall he allowed to he read at the hearing.</p>

<p>New Trial.</p> <p>After two concurring verdicts the court will not grant another new trial, unless the jury have manifestly disregarded the law as given them by the court.</p>

<p>1. Masters m Chancery — Reports of, and Exceptions Thereto.</p> <p>Masters are usually employed in taking accounts and making computations, and in making inquiries and reporting facts. In. sucli references it was usual for the masters to prepare drafts of tlieir reports before argument, and argument was heard by the masters only on.objections to the drafts. In such cases, manifestly, parties were entitled to an inspection of the drafts, and to be heard on their objections thereto.</p> <p>2. Same — Practice.</p> <p>But if a reference is made embracing questions of law and fact, and after hearing the testimony, and the arguments of counsel, the master prepares a report of his findings, there is no good reason for observing the formalities of the old practice in submitting the report to the parties for hearing thereon before the master.</p> <p>3. Same — Same.</p> <p>It is not the practice in this district, nor in this circuit, for the master, after having heard full argument, to submit a draft of his report to the parties for a hearing thereon upon objections thereto. When a case has been fully argued in the first instance the legal right of the unsuccessful party to make objections before the master to the draft of his report, and argue the same, is not recognized in practice.</p> <p>4. Same — Rules 77 and 83 of the Supreme Court.</p> <p>The rules of the supreme court for conducting references before masters pro- ' vide a simple and expeditious procedure, and were obviously intended to dispense with the old formalities incident to the settling, etc., of the master’s report. Vide rules 77 and 83. These rules establish a procedure in themselves and reference to the practice of the high court of chancery in England, as it existed in 1842, for the formalities attending the settlement, or making of masters’ reports, and the entering of exceptions thereto, is unnecessary.</p>

<p>1. Domicile — Citation.</p> <p>By the laws of Louisiana the domicile of the wife follows that of the husband. Therefore, a citation for the wife, left at the domicile of the husband, in this state is good, and is binding on her.</p>

<p>1. Recusation.</p> <p>It is not a good cause of challenge that a judge has formerly been of counsel -for one of the parties in a different causo.</p>

<p>1. Partnership — Negotiable Instruments — Purchaser with Notice.</p> <p>Where one of two partners fraudulently indorses the name of the partnership upon commercial paper in which it had no property or interest, and obtains money upon it from tlie indorsee for a purpose clearly outside the scope of the partnership business, the indorsee has uo claim against the other of the copartners.</p>

<p>1. Railroad Crossings — Reciprocal Duties op Travelers and the Railroad Company.</p> <p>When a crossing is dangerous, the duty is imposed upon those engaged in conducting the engine and trains upon the road, and also upon those desiring to make the crossing, to use every reasonable precaution to avoid a collision; and the necessity is increased in proportion to the danger. This duty is required equally of both parties.</p> <p>2. Same — Duty op Traveler.</p> <p>Where one attempts to drive liis team over a railroad crossing on a level with the highway with knowledge of its dangerous condition; that a warehouse formed an obstruction to the sight and sound of a train coming from one direction ; that it was tho time for making up a train and that the locomotive must pass the crossing to do so — ho must both look and listen for the approach of the locomotive, and, if need be, stop for that purpose.</p> <p>3. Railroad Employes.</p> <p>Railroad employes are as worthy of belief as other agents.</p>

<p>1. Railroads — Negli&ence.</p> <p>Railroad companies, as carriers of passengers, must apply to the boiler of a locomotive used by them in hauling passenger trains every test recognized as necessary by experts; but they are not liable for defects which cannot be discovered by such tests.</p> <p>2. Presumptions — How Overcome — Motion eor a New Trial.</p> <p>The testimony of unimpeached witnesses who testify positively to facts which are uncontradicted overcomes a mere presumption; but a verdict will not be set aside on this ground, unless the court is satisfied that the jury were controlled by their prejudices rather than by their impartial judgment.</p>

<p>1. Duties on Imports.</p> <p>The facts that imported goods were subject to a lower rate of duty than that charged upon them, and that the action of the principal appraiser was irregular, because he did not see the goods, cannot be set up by the importer in an action to recover the difference between the amount paid and that of the final liquidation, where he was notified by the collector of the liquidation of the entries at the higher rate, and did,not take an appeal to the secretary of the treasury.</p>

<p>1. Taxation — Law of New Yoke of 1881, a. 271.</p> <p>Chapter 271, Laws of New York of 1881, declared to be void on the ground that it is, in effect, a legislative assessment of a tax imposed upon a body of individuals selected out of a general class, without apportionment or equality as between them and the general class, or as between themselves, and without giving them any opportunity to be heard.</p>

<p>Motion in Arrest of Judgment.</p>

<p>1. Constitutional Law — Infamous Crimes — Conspiracy to Make Counterfeit Coin — Practice—Information.</p> <p>A conspiracy to make counterfeit coin is not an infamous crime, within the meaning of article 5 of the amendments to the United States constitution, and may be prosecuted by information.</p>

<p>Motion to Vacate Judgment.</p>

<p>In Bankruptcy. Sur register’s report disallowing proof of the claim of the Eaton, Cole & Burnham Company.</p>

<p>1. Letters Patent — Fasteners for Shutters — Validity.</p> <p>Letters patent No. 166,819, for an improvement in fasteners for shutters, are not invalid for want of novelty.</p> <p>2. Novelty — Utility—Extensive Use.</p> <p>Extensive use is, of itself, some evidence of novelty and utility.</p>

<p>1. Lettebs Patent — Wbenches—Inebingembnt.</p> <p>The first claim of reissued letters patent No. 3,483, granted to Loring Coes, June 1,1869, for an “ improvement in wrench,” which is a claim to an improved Coes wrench, so constructed that the thrust or back strain of the rosette screw, when the wrench is used, shall he borne by the shank instead of the handle of the wrench, substantially as described, is not infringed by a wrench made in accordance with the description in letters patent No. 50,364, granted to Jordan & Smith, October 10, 1865, for an “ improved wrench.”</p> <p>2. Same — Same.</p> <p>To remedy the difficulty experienced in the use of the Goes wrench of 1841, the plate and the ferrule being often broken or bent and pushed out of place, and the wooden handle split or crushed, George O. Taft substituted in place of one rosette three parallel rosettes, with narrower peripheries, revolving at right angles to the line of motion of the adjustable jaw in three parallel grooves in the adjacent face of the main bar, each groove bearing against both faces of its rosette, so as to prevent the rosette and the screw from being carried bodily towards the fixed jaw, and to cause the back-thrust to be received by the side of the groove furthest from the fixed jaw, instead of as before, by the plate. To eil'eet the same result, the defendant put underneath the plate a screw nut, in the extension of the main bar, a screw thread being cut in the extension, and this screw nut is screwed up tight, against the bottom of the screw nut by a screw nut at the extreme end of the extension below the handle. The rosette is the same as the Goes rosette of 1841, and always maintains the same position relatively to the handle. Held, that the means employed by the defendant are different from those employed by Taft, and are not the mechanical equivalent.</p>

<p>1. Burden of Proof.</p> <p>Where goods are received on board ship in good condition and found to be damaged when delivered, the burden of proof is upon the carrier to show that the damage arose from some peril excepted by the bill of lading.</p> <p>2. Stowage.</p> <p>Different parts of the cargo must be so stowed as not unnecessarily to injure one another;</p> <p>3. Bills oe Lading.</p> <p>The libellants shipped 432 bales of wool on the ship P., at San Francisco, to be delivered in New York, on the usual bills of lading. On delivery, 24 bales were found injured by sea-water, and 76 other bales were found damaged from some other cause,-being rotted and caked on the bottom or sides of the bales, or in strips across them. Wet redwood formed a part of the Cargo, upon which, as a temporary floor, the wool was placed, with dunnage strips between, separated by open spaces. It was proved that such rotting might arise from contact of the bales with wet wood, or from very close proximity to it, when steaming from the wet; also, that the ship met several severe storms upon the voyage, and took in water which penetrated between-decks, and that there was much sweating of the cargo. Held, that an adequate cause of the damage by-sea-water being shown, the injury to the 44 bales from that cause was within the excepted perils, and that the vessel is not liable for that part of the loss; but that the damage to the 76 bales arose from contact with, or too close proximity to, the wet redwood taken on board as a part of the cargo, against which the carriers were bound to protect the,wool by proper stowage, and that the vessel is liable for such damage.</p>

<p>1. Inevitable Accident.</p> <p>A ship and a schooner were fastened, respectively, to the northerly and southerly sides of the same slip. In consequence of the'violence of a gale from the north, the forward fastenings of the ship gave way, and her how was beginning to swing to the south, when those on hoard of her hailed the schooner to get away, as the ship was drifting. In doing so the schooner foundered. Held, that the ship was not responsible for the injury, as her original fastenings were all that were reasonably necessary under the circumstances, and she was, otherwise, free from negligence.</p>

<p>1. Derelict — Salvage Compensation.</p> <p>Salvors in dbrelict cases are entitled to adequate compensation, according to the circumstances of each case. A rule of fixed proportions no longer obtains.</p> <p>2. Same.</p> <p>When the officers and crew of a burning vessel leave.it, without any intention of returning to resume possession, or hope of paving it, it is a case of derelict in the sense of the maritime law; or, if not in the exact and technical meaning of the term, a case of derelict, a case of quasi derelict, equally meritorious, though the vessel at the time is in a navigable river, and the master, mate, and some of the crew return to it one or more times before the fire is subdued.</p>