Volume 90 — Federal Reporter

<p>1. Removal of Causes — Local Prejudice — Discretion of Court.</p> <p>The amount and manner of proof required to authorize the removal of a cause on the ground of local prejudice under the acts of 1887 and 1888 must be left to the discretion of the court passing on the application, and after the term has expired at which an order of removal on such ground was made it cannot be reviewed, and the cause remanded, on the ground that the showing was insufficient.1</p> <p>2. Same — Notice of Application.</p> <p>No notice to the adverse party of an application to the circuit court for an order of removal is required.</p>

<p>Removal of Causes — Local Prejudice— Discretion of C,ourt.</p> <p>After the expiration of the term at which an order for removal was made by the circuit court on the ground of local prejudice, such order cannot be reviewed on a motion to remand on the ground that the evidence on which it was based was insufficient.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>This bill is brought to restrain the alleged unlawful use of a trade-mark. It comprehends (a) the case of an infringement of a trade-mark at common law; (b) the case of unfair competition in trade; (c) the case of the infringement of a trade-mark registered under the act of congress of March 3, 1881 i21 Stat. 502). The bill sets out that the complainant is a corporation organized and existing- by virtue of the laws of the state of Illinois, and that the George E. House Soap Company, which was originally rlie sole defendant, is a corporation organized under the laws of the state of Wisconsin. Upon the coming in of the answer of the George E. Rouse Soap Company declaring itself a co-partnership, composed of Nicholas Meyer and George 18. House, ¡lie bill was amended by inserting “and against George E. House and Nicholas Meyer, as proprietors of said company, and residing- and doing business in Green Bay, in the county of Brown and state of Wisconsin, and inhabitants of said district.” These persons were thereupon subpoenaed, and appeared to (he suit.</p> <p>The complainant's trade-mark, which is alleged to have been in use since the year 1ST0. consisted of the words “Old Country,” which were stamped upon an ordinary cake of laundry soap, inclosed in a manila wrapper of baft color, with the words “Allen B. Wrisiey’s (Trade-Mark) Old Country Soap” printed thereon in blue letters, except that the words “Old Country” wore in white letters upon a blue ground. The defendants made and sold a laundry soap, using as a, trade-mark (ho words “Our Country Soap,” the paper covering having the words '“Our Country Soap” printed upon an American shield, the word “Our” being in wiiito letters upon a blue ground, ¡he word “Country1’ being printed in white and blue lettering transversely upon the shield on red ground, and die word “Soap” in blue letters upon 1 lx* red and white bars of the shield. The covering which Inclosed tlie soap also had displayed the American flag, and a streamer, with the words “E TTuribus Cram,” and the name of the George E. House Soap Company printed in white letiers, and “Green Bay, Wis.,” in black letters, both upon a red ground. At the hearing upon a motion for preliminary injunction, affidavits were presented pro and con upon the question whether confusion in tlm sale of the soaps existed, and -whether the use of the words “Our Country” upon the soap of the defendants gave opportunity for, and had resulted in, the substitution of the goods of the defendants as and for the goods of the complainant. The court below denied the motion for a preliminary injunction (87 Fed. 589), holding that, as a mere trade-mark, there was no attempt at disguise, and no likelihood of the one being mistaken for the other by even the casual and inattentive purchaser, reserving till the final hearing the question whether the use of the word “Country" could be appropriated by the complainant, and also reserving, as we understand the opinion, whether a case of unfair trade is presented.</p>

This was an action by the Union Bank of Richmond, Ya., against the board of commissioners of Oxford, a town of North Carolina, to enforce' the collection of municipal bonds.

<p>Pbiviluged Communications — Attorney and Client — Testimony as to Con-, tents on Executed Instrument.</p> <p>The reason for the rule which precludes an attorney or counsel from disclosing' transactions or conversations between hiinself and his client ceases as to the contents of written instruments after they have been executed by the client, and neither such general rule nor the statute of New York (Code Civ. Proc. §§ 805, 836) prevents a counsel who prepared a. codicil to the tv ill of a client, since deceased, which codicil has been destroyed, from being required to state, if within his knowledge, whether such codicil was executed, and, if so, its contents, though he cannot, under tile statute, be required to testify as to the transactions or conversations leading up to its execution.</p>

<p>1. Injunction Bond — Power ov Court on Dissolution — Judgment Against Sureties.</p> <p>A court of equity, on the dissolution of an injunction, may under its general powers, and in the absence of statutory provisions, have tiie damages occasioned by its issuance assessed under its own direction, and may render judgment therefor against the sureties as an incident to the principal suit.</p> <p>2. Same — Release op Sureties — Modimcation op Injunction. ■</p> <p>Under the rule that the liability of a surety cannot be extended by implication beyond the express terms of his contract, sureties on a bond given to procure a restraining order, which order required the defendants to cease working a certain portion of a mine, and to refrain from removing or appropriating ore previously taken therefrom, cannot be held liable for damages accruing to defendants after a subsequent order, which continued such restraining order in force, hut modified and changed it by permitting the working of the mine, and the disposition of the ore taken therefrom, under regulations prescribed by the court.</p> <p>3. Same — Damages Recoverable.</p> <p>In a suit’to enjoin defendant from the further working of a mine beyond the alleged limits of its claim, in which a temporary injunction was allowed, and by a subsequent order the court required the defendant to pump the water from its workings to permit an inspection by complainant’s engineers, the complainant is liable on its bond, on a final determination of the suit in favor of defendant, for the cost of such pumping, though continued much longer than was necessary for the making of the inspection, where such continuance was solely by reason of the order, and the complainant itself delayed its examination, and took no steps to have the work stopped.</p>

Tbis is a suit in equity by George C. Lawrence against tbe Times Printing Company and the Associated Press. Heard on demurrer to the bill by the Times Printiug Company, and a plea to the jurisdiction by the Associated Press.

<p>Hearing on Claims for Preferred Liens for Labor and Supplies Furnished the Defendant Company.</p>

<p>On Demurrer to Answer.</p>

This is a suit in equity to restrain the enforcement of an order made by the railroad commission of North Carolina reducing passenger rates on complainant’s road. Heard on exceptions to the bill.

<p>This was a creditors’ suit for the conservation and distribution of the assets of defendant, an insolvent corporation. On final adjustment of costs and allowances.</p>

By written stipulation duly signed and filed, the parties to this action waived a jury trial, and consented to try the case before the court; and, the evidence having been fully submitted, the court finds the facts established by the evidence to be as follows: (1) Tlio plaintiff, Fred A. McMaster, was when the suit was brought, and is now, the lawfully appointed adminisirator of the estate of Frank E. Mc-Master, deceased, having been appointed administrator of the named…

<p>In Error to the Oirenit Court ol the United States for the Nor lit ern District of California.</p>

<p>1. JjImitations — Action against County-Liability of Former County.</p> <p>An action against a county to enforce a liability arising from an indebtedness of a former county charged upon the new county by the act creating it is upon a specialty created by the statute. As no liability against the new county could arise from the original obligation alone, such obligation Is but an element in the cause of action, the statute being the other and indispensable element; hence limitation against such action runs only from the creation of the new county, and not from the maturity of the original debt.</p> <p>2. Same — Indebtedness Payable from Special Fund.</p> <p>A county cannot plead limitation to an action against it to enforce an obligation payable from a particular fund without first showing that it has provided such fund.</p>

<p>In Error to the Circuit Court of the United States for the District of Washington.</p> <p>This is an action in ejectment, brought by the Pacific Bank, plaintiff in error here, for about four acres of land situated in the county of Pierce, state of Washington. The complaint alleged ownership in foe, and a right to the possession of the land, and that the defendants were in unlawful possession thereof. The defendants pleaded a general denial, and set up that the county of Pierce, state of Washington, was the owner of said land, and that they were In possession by consent of said Pierce county. The evidence introduced on the part of the plaintiff was entirely documentary. The plaintiff deraigns its title as follows: In February, 1870, a tract of 60 acres of land, described as the S. W. % of the NT. W. *4, a.nd the W. % of the S. K. M of the X. W. %, of section 5, township 20 N., of range! E., of Willamette meridian, in Hie county of Pierce, then territory, now state, of Washington, was conveyed by Louis 0. Fuller and Clinton P. Ferry, and their respective wives, who were the owners in fee simple thereof, t.o the Workingmen’s Joint-Stock Association, a corporation organized under the laws of the state of Oregon, and having its principal office at Portland, in said state. At that time, and on the K)th of February, 1871, following, the stockholders, and the only stockholders, of this corporation were the following: John Donaldson, Philip Francis, Charles Gilbert, James H. Givens, diaries Howard, John Huntington, George Washington, George Thomas, George Luvinoy, William Brown, Mary H. Carr, Edward S. Simmons, George P. Riley, and Anna Rodney, and each was the owner and holder of 30/<tei of all llie capital stock of the corporation, except George Luviney, who was the owner and holder of 65Asi of said capital stock, and William Brown, who was the owner and holder of sa/-in4, of said capital stock. On the 10th day of February, 1871. a question having arisen as to the power of the corporation to take and hold rhe 1 itle to said real property, it was decided by the officers and managers of the same that the said land should be conveyed to the said stockholders individually, as tenants in common of their interests therein, in proportion to the amount of capital stock owned and held by each; and accordingly, on said day, the corporation joined with said Louis O. Fuller and Clinton P. Ferry, and their respective wires, and duly made, executed, and delivered to said stockholders hereinbefore mentioned a quitclaim deed to said real estate, in the proportions represented by the stock held by them in the corporation, to be held by them as tenants in common. Among thdse stockholders and tenants in common was one James H. Givens, whose interest was stated, in the deed, to be 33/(t<s4, and whose interest represents the land in controversy in fhis action, amounting to about four acres. On September 5, 1871, 11 of these tenants in common, among whom was .Tames H. Givens, joined in a power of attorney in favor of John W. Matthews, who was constituted and appointed “our true and lawful attorney for us, and in our name and stead, to grant, bargain, sell, convey, alien, remise, release, quitclaim, assign, or transfer all such lands,” etc., “and for all the powers aforesaid for us and in our names to make, execute, acknowledge, and deliver all necessary deeds,” &c. The names of the remaining three tenants in common were affixed hy other parties, but no previous authority to do so was shown. The purpose of this power of attorney, it appears, was to effect a partition of this 60-aere tract; and Matthews accordingly, on September 9, 1871, attempting and assuming to act under said instrument in writing, executed to said stockholders hereinbefore mentioned a deed signed by himself as attorney in fact, conveying to each a portion of the 60 acres represented by his or her interest in said corporation. But it Seems that the initial corner of the description of the land attempted to be conveyed was incorrectly stated in said deeds, and furthermore the deeds were signed by the name of John W. Matthews, and not by the names of any of said alleged grantors, and were otherwise incorrect and void. See opinion of the court below in the case of McDonald v. Donaldson, relating to this same tract of land, 47 Fed. 765. Subsequently, and about February 14, 1873, James H. Givens died intestate, leaving Mary A. Givens, his wife, surviving him. On March 24, 1873, Matthews, still assuming to act under the authority of said power of attorney and without any additional authority, executed, acknowledged, and delivered a second set of deeds to each of said stockholders (excepting James H. Givens), which correctly stated the section in wijlch the said tracts, so partitioned, were situated, and the true initial comer of the description in each, and to which he signed the names of several of the stockholders as grantors therein. Matthews deeded the tract in controversy in this case to Givens’ widow, Mary A. Givens. As stated, Givens had died in the month of February previous, intestate, without leaving any heirs. It was, however, assumed at the time that, under the laws of the territory, now state, of Washington, his widow was his heir at law. It was upon this assumption that the deed of the tract of land to which Givens would have been entitled, had he lived, was conveyed by Matthews to Mary A. Givens, his widow. Subsequently, on October 17, 1888, Mary A. Givens, describing herself as the “widow of James H. Givens,” executed a quitclaim deed of the entire 60-acre tract to Frank V. McDonald. In the year 1891, McDonald instituted a suit in equity in the United States circuit court for the district of Washington, Western division, against those of the original tenants in common who still retained their interests and •against those persons who claimed title to any part of the premises by deed from any of the original tenants in common. The object of the suit was to ■obtain a decree defining the interests of the several, parties, remove the cloud upon the title, and partition the property among the owners, so as to give to each his portion thereof in severalty. The importance of just such a suit to disentangle the title to this entire 60-acre tract from the complications which the careless add misadvised acts of the parties had caused, is very forcibly, stated by the learned judge of the court below in his opinion in that case. McDonald v. Donaldson, supra. It was held that the land had not been legally partitioned, and that the only solution of the legal difficulties and perplexities of the situation was for the court to partition the land itself, according to the fairest plan whieh the court, acting upon certain equitable principles, could devise. This was accordingly done. In the findings of fact in that case, the court found “that on the 23d' day of March, 1873, the said James H. Givens died intestate, leaving Mary Givens his widow and only heir at law,” and awarded the land in controversy here to McDonald, as the grantee of Mary Givens. Subsequently, McDonald brought suit against Dolphus B. Hannah and ICate E. Hannah, his wife, the present defendants in this ease, in the circuit court of the United States for the district of Washington, Western division, to recover possession of the land involved in the case at bar." McDonald, the grantor of the present plaintiff in the case at bar, pleaded, in that action, to establish his title to the land and right to have Hannah et ux. dispossessed, the judgment and decree rendered in the case of McDonald v. Donaldson, 47 Fed. 765. But the court held that, while such decree and judgment were admissible in evidence in favor of the plaintiff’s title, it was not conclusive upon the defendants, they having been strangers to the suit in which such judgment and decree were rendered; and the court further held that, upon the evidence presented and the showing made in that case, the title held by McDonald to the land in controversy in this case was void and of no effect; that Mary A. Givens, the widow of James H. Givens, never had the legal or any title to the land which she conld convey'to McDonald; that she was not, under the laws of the territory, now state, of Washington, the heir at law of James H. Givens; that, upon the latter’s death, the only right she acquired in the land in controversy was that of dower, and nothing more; that the land had never been awarded to her in any proceeding according to the statute for assignment of dower. Judgment was accordingly rendered for the defendants. 51 Ifed. 73. Subsequently, on February 11, 1890, McDonald conveyed the land in controversy to the racific Bank, the plaintiff in the court below and the plaintiff in error in this court. The case was tried before the court below, the parties having, by written stipulation filed, waived a jury. Judgment was rendered in favor of the defendants, and the court ma.de the following findings of facts and conclusions of law:</p> <p>- “First. That plaintiff is a banking corporation organized and existing under the laws of the state of California, and authorized to hold rea.1 estate in the state of Washington, and the defendants are citizens and residents of the state of Washington.</p> <p>“Second. That in the year 1810 one James H. Giyens intermarried with one Alary A. Peck at New Bedford, in the state of Massachusetts, and the said parties never resided in the late territory, now state, of Washington.</p> <p>“Third. That on the 14ih day of February, 1873, the said James H. Givens died intestate at Portland, in the county of Multnomah, state of Oregon, leaving surviving him his widow, the said Mary A. Givens, but no issue or heir at law.</p> <p>“Fourth. That at the time of his death the said James H. Givens was seised In fee of one undivided 30/464 of the following described premises, to wit: The southwest quarter (S. W. Vt) of the northwest quarter (N. W. Yl), and the west half (W. Y¿) of the southeast quarter (S. E. Yi) of the northwest quarter (N. W. %), of section five (5), township twenty (20) north, of range three (3) east, of Willamette meridian, in the county of Pierce, then territory, now state, of Washington.</p> <p>“Fifth. That on the 17th day of October, 1888, the said Mary A. Givens, widow of said James II. Givens, claiming to be the sole heir at law of said James II. Givens, made, executed, and delivered to one Frank "V. McDonald a conveyance of all her rigid, 1itle, and interest, including dower and claim of dower, in and to the premises above described, but that neither before the making of said conveyance nor thereafter had the interest of said Mary A. Givens, as the widow of said James II. Givens, been set off to her by any court.</p> <p>■ “Sixth. That thereafter, and on or about the 12th day of March, 1891, the said Frank Y. McDonald, claiming, by virtue of said conveyance, to be the owner of the right, title, and interest of said .Tames H. Givens and Mary A. Givens in and to the premises hereinbefore described, commenced, in this court, a suit in equity against one John Donaldson and sundry other persons, to which all persons having of record in the office of the auditor of Pierce county any deed of conveyance, decree, or other evidence of title to any portion of said premises were made parties defendant, save and except that the defendants herein and the county of Pierce were not parties thereto, for the purpose of procuring a partition of said premises among the parties to said action; and thereafter such proceedings were had in such cause that tills court ordered and decreed, as between the parties to said action, a partition of said premises, and particularly decreed (hat there be set off in severalty, as his sole and exclusive property in fee simple to Frank V. McDonald is the successor in interest of said Jamos H. Givens and Mary A. Givens, a certain tract or parcel of the tract hereinbefore described, therein hounded and described, and being the same tract of land described in the complaint herein.</p> <p>“Seventh. That thereafter, and on the 13th day of September, 1894, said Mary A. Givens died in the city of Portland, county of Multnomah, state of Oregon, being at the time of her death a resident of said state of Oregon.</p> <p>“Eighth. That thereafter, and on the 13 th day of February, 1896, the said Frank V. McDonald made, executed, and delivered to the plaintiff herein a conveyance of the premises described in the complaint herein.</p> <p>“Ninth. That the premises described in said complaint exceed in value the sum of two thousand dollars ($2,000).</p> <p>“Tenth. That the county of Pierce is a municipal corporation of the state of Washington.</p> <p>“Eleventh. That the defendants are, and were at the time of the commencement of this action, in possession of the premises described in the complaint by consent of the said county of Pierce, state pf Washington.”</p> <p>As conclusions of law, from the above findings of fact, the learned judge held:</p> <p>“First That, upon the death of said James H. Givens, the right, title, and interest of said James H. Givens in and to the premises described in the fourth finding of fact herein became vested in the county of Pierce, state of Washington, as escheated property, subject only to a dower estate in his widow, said Mary A. Givens, for her life, in one-third thereof, to be admeasured to her pursuant to the laws of the then territory of Washington.</p> <p>“Second. That the conveyance by Mary A. Givens to Frank V. McDonald, and the conveyance by Frank V. McDonald to the plaintiff herein, did not vest either of said grantees with any right, title, or interest in said premises.</p> <p>“Third. That the partition proceedings referred to in finding sixth herein were valid and effectual to the extent that the decree therein severed the undivided interests of the parties to said action in the premises described in the fourth finding of fact herein, and particularly the interest of which the said James H. Givens died seised, but were void so far as they conferred, or attempted to confer, any right, title, or interest in the said Frank y. McDonald to the premises described in the complaint herein.</p> <p>“Fourth. That the defendants are entitled to a judgment against plaintiff dismissing this action, and for their costs and disbursements herein.”</p> <p>The plaintiff in error excepted to the findings of fact Nos. 3, 5, and 11, and to all the conclusions of law, and excepted to the action of the court in refusing to adopt the findings of fact and conclusions of law requested and submitted by it, and in rendering judgment for the defendants, all of which is assigned as error. To reverse the judgment of the court below, this writ of error is sued out.</p>

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>This is an action to recover 50 bonds of the city of Portland, in the state of Oregon, known as “Portland Water Bonds,” or the value thereof, $70,000, in case delivery cannot be had. The complaint is based upon the provisions of the Oregon statutes for an, action in the nature of replevin to recover specific personal property. The complaint states, substantially: That“plaintiff is a corporation duly incorporated, organized, and existing under and by virtue of the laws of the state of Minnesota, and is a citizen of the state of Minnesota, and is engaged in the express business in the state of Oregon. That the defendant is a citizen and resident of the state of Oregon. That 1 lie plaintiff is the owner and is entitled to the immediate possession of iifty bonds of the city of Portland, known as ‘Portland Water Bonds,’ to wit, numbers 250 to 305, inclusive, each of the face value of $1,000, with interest coupons attached thereto. That the value of the said bonds is $70,000. That the defendant wrongfully and unlawfully detains the said bonds, and keeps possession thereof, within the state and district of Oregon, although plaintiff has frequently demanded the same from tlie defendant. That the defendant is the duly elected, qualified, and acting state treasurer of the state of Oregon, and that the defendant pretends to have power, by virtue of the said office, to hold the said bonds, and to keep the possession thereof, in order that he may collect and receive certain fees and emoluments allowed to the slate treasurer by law for the safe-keeping of bonds and securities required by law to be kept in the custody of tlie state treasurer, but that in fact [and] in truth he is not empowered by any law to hold or keep possession of the said bonds, or to exact or to collect any fees or emoluments for keeping- them. That the said defendant claims that he is entitled to so hold possession of the said bonds as a deposit from plaintiff under and by virtue of sections 1, 2, and 3 of an act of tlie legislative assembly of the state of Oregon entitled ‘An act to amend an act to regulate and tax foreign insurance and express corporations or associations, doing business in this state,’ approved October 21, 1861, amended and approved December 19, 1865, and whic.il said section is printed in the compilation of the Miscellaneous Raws of the State of Oregon compiled and annotated by Matthew P. Deady and Lafayette Lane (1872) at j>age 616 thereof; the same being section 1 of chapter 24 of the Miscellaneous Laws of the State of Oregon. But the plaintiff alleges that the said sections of tire said statute have been repealed by section 25 of an act of the legislative assembly of the state of Oregon entitled ‘An act to license and regulate insurance business in tlie state of Oregon,’ filed in the office of the secretary of state February 25, 1887, and which is in effed by operation of the constitution of The stale of Oregon. That the defendant so holds and keeps possession of the plaintiff's said property without due or any process of law, and in violation of tlie rights guarantied to Hie plaintiff by the constitution of the United States. That by reason of the premises the plaintiff is damaged in the sum of seventy thousand dollars ($70,000).” A demurrer was filed by the defendant to this complaint on the ground that the same does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and a judgment entered dismissing the complaint. For the alleged error in sustaining the demurrer and entering the judgment this writ of error is prosecuted.</p> <p>The act of Hie legislature of the state of Oregon entitled “An act to regulate and tax foreign insurance, banking, express, and exchange corporations or associations, doing business in tills state,” approved October 21, 1864, provided, in section 1, that no foreign corporation or association should be permitted 1o transact the business of life, fire, or marine insurance, brokerage, exchange, or express, within the limits of the state, without first complying with the provisions of section 2 of the act. Section 2 required that every such corporation, before doing the business of life, fire, or marine insurance, or banking, brokerage, exchange, or express, should deposit with the treasurer of the county in which tlie principal ofiice or agency is located the sum of S50.000. Section 3 required that such deposit should bo made in the interest-bearing bonds of tlie United States, and should be safely kept for the benefit and security of persons transacting business with such corporations or associations in the state, for claims and demands arising out of said business, and should be held and considered specially pledged for such security for sueli claims and demands. (Jen. Laws Or. 1845-1861, compiled and annotated by M. P. Deady (page 715). In 1865 the legislature passed ail act entitled “An act to amend an act entitled ‘An act to regulate and tax foreign insurance and express corporations or associations doing business in this state,’ approved October 21, 1864.” This act was approved December 19, 1865. Its purpose appears to have been to exempt life insurance, banking, and exchange corporations from the requirements of the act of 1864; and it sought to accomplish this purpose by omitting from the title of the original act the words “hanking” and “exchange,” and from the hody of the statute the words “life,” “hanking,” and “exchange.” Another amendment was to require that the deposit should he made in interest-hearing bonds of the United States, “or the bonds of the state of Oregon.” Laws 1865, p. 21. By an act approved October 24, 1870, the legislature amended the act of 1804 as amended by the act of 1805. The title of this act is, “An act to amend an act entitled ‘An act to regulate and tax foreign insurance and express corporations or associations doing business in this state,’ approved October 21, 1864; amended and approved December 19, 1865.” The purpose of this amenda-tory act was to require that the deposit of $50,000 should be made with the treasurer of the state, instead of the treasurer of the county, in which the principal office or agency is located, as provided in the original act. The words “banking” and “exchange” were again omitted from the title of the •original act. Laws 1870, p. 46. In 18S7 the legislature passed an act entitled “An act to license and regulate insurance business in the state of Oregon.” It was provided in section 6 of this act that every foreign corporation, before engaging in the business of fire or marine insurance or express, should deposit with the treasurer of the state the sum of $50,000: and it was further provided that the deposit should be made in interest-bearing bonds of the United States, or the bonds of the state of Oregon, or any municipal, school district, county, or town, bonds, issued by legal authority in the state, of Oregon, the market values of which are at or above par. The purpose of this act was to re-enact the statutes in force regulating the insurance and -express business, and to so amend the same as to give to the corporations named the privilege of depositing certain bonds of a local character in lieu of national and state bonds, as required by previous acts. It also provided, in section 25, that sections 1, 2, 3» and 16, c. 24, of the Miscellaneous Laws of Oregon, and acts and parts of acts in conflict therewith, should be thereby repealed. Laws 1887, p. 118. The sections repealed were section 1 of the act of 1870, section 3 of the act of 1805, and section 4 of the act of 1804. Section 20, art. 4, of the constitution of the state of Oregon, reads as follows: “Every act shall embrace but one subject, and matters properly connected therewith, which subjects shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” Section 22, art. 4, .provides that “no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.” Hill’s Ann. Laws Or. pp. '90, 91.</p>

<p>1. Removal oe Causes — Appearance—Waiver of Objection to Service.</p> <p>A nonresident defendant, served -only by publication in a proceeding in rem by attachment, by a renioval of the cause to the federal court does not waive the right to move to vacate the service on the ground that the court did not obtain jurisdiction over the property sought to be reached.</p> <p>2. GARNISHMENT 01' FOREIGN CORPORATION — ACTIONS AGAINST NONRESIDENT Stockholder.</p> <p>¡Shares of stock in a corporation of one state, owned "by a resident of another, cannot lie reached by garnishment in a third state in which the corporation does business, by service of garnishment on the agent of the corporation in the state and of summons on the defendant stockholder by públication. in the absence of special statutory provision therefor; and a statute subjecting foreign corporations to suits and garnishment in the state as a condition precedent to their doing business therein, in connection with one authorizing attachments in suits against nonresidents, does not confer such authority. Such statutes, as affecting corporate garnishees, apply only to debts due from the corporation generally, or to property held by it within the state; and a corporation is not a debtor of its stockholders in such sense that it may be garnished as such, nor docs it hold tlieir stock except at the place where it ha.s its domicile, and subject to the laws of such place.</p> <p>3. Same — Statutes Affecting Foreign Corporations.</p> <p>State statutes subjecting foreign corporations to the service of process and to suits and garnishment within the state as a condition of their right to do business therein cannot be held to also require by implication that their shareholders shall submit their shares of stock to the dominion of the state.</p> <p>4. Same — Ohio Statutes.</p> <p>Though the Ohio statutes authorize the attachment of stocks and interests in stocks, and permit ilie garnishment of a foreign corporation doing business in the state in actions against nonresident defendants, and also require a corporation garnishee to make disclosure of any stock held therein for the benefit of the defendant, such statutes presuppose that the debts or property to be subjected, and to which the disclosures relate, are within the dominion of the state, and do not bring within such dominion shares of stock in a foreign corporación, whether the corporation as garnishee makes disclosure of their ownership by defendant or refuses to make such disclosure.</p> <p>o. Same — Situs of Corporate Stock.</p> <p>The situs of corporate stock for any purpose must be either the domicile of the corporation or that of the owner. Whether for the purpose of seizure and subjection to legal process it can be elsewhere than the domicile of the corporation, quaere.</p>

<p>1. Carriers or Passengers — Sale of Tickets — Repudiation of Contract.</p> <p>A railroad company which authorizes another company to issue and sell mileage tickets good over its road makes the latter company its agent, and cannot repudiate the contract so made with a passenger who in good faith buys a ticket from such agent.</p> <p>2. Exemplary Damages — Including Expenses of Litigation.</p> <p>Under the decisions of the Ohio courts, where punitive or exemplary damages are allowable, the jury may take into consideration the fair and reasonable expenses to which the plaintiff has been subjected in the vindication of his rights by litigation.</p> <p>3. Same — Implied Malice — Ejectment of Passenger bv Carrier.</p> <p>Where the general passenger agent of defendant railroad company deliberately repudiated a large number of mileage tickets which had been issued and sold to the public by his‘authority, and, in consequence of bis orders, plaintiff, who had purchased one of such tickets in good faith, was ejected from a train, such a reckless disregard of the duties of the defendant and the rights of its ticket holders, by one of its controlling-officers, constituted implied malice, and warranted the Imposition of exemplary damages.</p>

These were two suits in equity by the Consolidated Fastener Company against Annie Weisner and others and against Samuel Lehr, respectively, for the infringement of a patent. Heard on motions for a preliminary injunction.

<p>Admiralty — Suits to Recover for Deaths — Security for Costs.</p> <p>In actions brought on behalf of the next of kin against a steamship company to recover for deaths resulting from the sinking of a vessel which was a total loss, — defendant being therefore relieved from all liability for faults of navigation, — phi ini ills will be required to give security for cosls, unless the inability of all the persons interested in the recovery to do so is shown.</p>

<p>1. Seamen — Abandonment oe Ship — Shortage oe Supplies.</p> <p>The fact that the master of a vessel did not furnish his crew with the full supply of lime juice required by the law and the shipping articles, in the absence of any claim that the men suffered or were made sick by reason of such deprivation, and where no complaint was made on that ground, does not authorize the crew to abandon the ship before the end of her voyage, and recover their wages, nor entitle them to extra wages.</p> <p>2. Admiralty — Enforcing Law oe Foreign Country — Seamen on Foreign Ship.</p> <p>In exercising jurisdiction in admiralty upon a libel for wages against a foreign vessel, the court will, through comity, administer the law of the country whose flag the vessel carries, to which law the seamen, by shipping for service on such vessel, subject themselves.</p>

<p>This is a libel by John J. King against the steamship Strabo for personal injuries. Heard on exceptions raising the question of jurisdiction in admiralty.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>This was a lilbel by W. W. Montague & Co. against the ship Henry B. Hyde and its owners, Benjamin F. Pendleton and others, to recover for breakage of goods in shipment. From a decree dismissing, the libel, the libelants appeal.</p>

<p>Cargo Damage-Leaky Port — Contact witii Stone Sluiceways at Havre— Misfitting Blind — Conflicting Evidence — Burden of Proof — Proper Inspection not Proved — Unseawortiiiness.</p> <p>Tbe new steamer P. on her first voyage from Hamburg to New York, when in mid-ocean on January 25th, was discovered to have a leaking port, by which cargo in compartment No. 4 was damaged. The port could not be screwed tight so as to stop the leak until the outside iron blind was removed; when that was removed the port was screwed watertight. Upon arrival at New York the brass ring of the glass door was found to be bent inwards at the top and bottom Vis of an inch, on a vertical axis. The port in question was near the bridge about two feet and one-half above the water line, and 175 feet aft of the stem. A few bolts were found a little loosened about this port, and in its vicinity, and there were some scratches there; hut no holts were loosened nor was damage done for 75 feet or upwards forward of the port, nor until about abreast of the foremast where there was again some damage on the same starboard side of the ship, which arose from contact with fenders on entering Havre or departing. The expert evidence showed that violent contact with the side of the ship where the port was, might cause the glass door to he sprung, or the blind to catch, as it was found when the leak was discovered. There was no proof of such inspection at Hamburg before the ship sailed as would show the port to have been then water-tight; held (1) that the burden was upon the ship to prove seaworthiness at the time of sailing; (2) that in the absence of sufficient inspection of the port to show seaworthiness on sailing, the ship took the risk of her inability to prove satisfactorily that the leak was caused in fact by the contact at Havre; (3) that upon a careful consideration of all the facts and circumstances, the ship had not sustained this burden, and the probabilities were against her contention that the leak was caused by the contacts at Havre, and that the ship was therefore answerable for the loss.</p>

<p>1. Jurisdiction of Federal Courts — Citizenship of Parties — Local Actions.</p> <p>Under the judiciary act of 1888 (25 Stat. 433), a circuit court of the United States cannot entertain a personal action by joint plaintiffs who are citizens of different stales against a defendant who is not an inhabitant of the district where the action is brought, but such provision does not affect the jurisdiction of the court in local actions to enforce a lien or claim upon real estate or personal property within the district.</p> <p>2. Receivers — Grounds for Affointment.</p> <p>To justify a court of equity in appointing a receiver pendente lito, the plaintiff must show at least a probable interest in the property, and then» must exist a well-grounded apprehension of immediate injury to such incorest unless the property is taken in charge of by the court.</p> <p>3. ¡Same — Displacement of Another Receive,r.</p> <p>A receiver will not be appointe.d by a federal court for a street railroad in a suit by bondholders to which other creditors, holding a large part of the road's indebtedness, are not parties, where no fraud or bad faith towards plaintiffs is shown, and the property is already in the hands of a receiver appointed by a. state court, whose management is shown to be excellent, and to meet the entire approval of those most largely interested.</p>

This was an appeal from an order granting an injunction against the cutting of timber, and appointing a receiver to take possession of timber previously cut by defendants.

<p>1. Jurisdiction of Federal Courts — Appointment of Receiver for Property Outside of District.</p> <p>A resident and citizen of Maryland, who was a stockholder in a West Virginia .corporation, brought a suit in the federal court in West Virginia against the corporation for the appointment of a receiver for its property, which was situated in Maryland, with authority to complete and furnish an unfinished hotel building thereon, and to issue receiver’s certificates therefor. Lienholders who were citizens of Maryland were made defendants, but in an amended bill only the corporation was named as defendant. A receiver was appointed, who completed the building, issuing receiver’s certificates for the cost. The Maryland lienholders, on their application, were,permitted to become parties and to prove their liens. Under a subsequent order the property was sold, and an order distributing the proceeds made, which gave the receiver’s certificates priority. Held, that the lienholders were necessary parties to the suit, and being citizens of the same state as complainant, and the property being situated outside of its district, the court was without jurisdiction, and the entire proceedings were coram non judice and void.</p> <p>3. Corporations — Powers of Court over Property — Receiver’s Certificates.</p> <p>A court cannot authorize the Issuance of receiver’s certificates for the purpose of improving or adding to the property of a private corporation, or of carrying on its business, without the consent of creditors whose liens would be affected thereby.</p>

<p>In the Matter of the Intervening Petition of Hill & Hough.</p>

<p>1. States — Bills op Credit — Revenue Bond Scrip op South Carolina.</p> <p>Tlie revenue bond scrip of the state of South Carolina, issued to the amount of .81,800,000 under the act of March 2, 1872, is in .the form of bills receivable of the state, which resemble bank or treasury notes. The act authorizes their issuance in denominations to be determined by the state treasurer and the president of the railroad to which they were issued, and denominations were made as small as 81. Tinder the act they bear no interest, and no date of payment is iixed: but the faith and funds of the state were pledged to their ultimate redemption, and a tax levy was provided for, io be applied to their retirement. They were made receivable at all times after their issuance for all dues and taxes to the state, except taxes levied to pay interest on the public debt; and, when so received, the state treasurer was authorized to pay them out again in satisfaction of any claim against the treasury. Ueld, that they were intended for circulation as money, and constitute hills of credit of the state, within the prohibition of the constitution of the United States, and are therefore void.</p> <p>2. Same.</p> <p>Such scrip having been issued for the purpose of taking up the bonds of a railroad upon which the state had become guarantor, the fact that the railroad company is bound to indemnify the state for any loss by reason of its suretyship does not render the scrip an obligation of the railroad company, nor change its character as bills of credit of the state alone.</p>

<p>Railroads — Preferred Claims in Insolvency — Car Rentals.</p> <p>A claim against a railroad lor car rentals or mileage accruing prior to a receivership is not entitled to payment as a preferential debt.</p>

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

This suit was begun by filing the following petition: The phr'.itiff, James Harvey Leslie, says that at the June term, 1893, of the circuit court of the United States for the district of Kentucky, held at Frankfort, the plaintiff duly recovered against one M. Schamberg judgment for the sum of forty-six hundred and sixty-seven dollars ($4,067), with interest thereon from' the 3d day of February, 1891, and thereafter execution was duly issued upon said judgment, and, while the…

This is an intervention in a foreclosure suit against a railroad company by a judgment creditor of the defendant, who seeks to have his judgment established as a lien superior to the mortgage.

This was a suit in equity by the Elk Fork Oil & Gas Company and others against George E. Foster and others to enjoin interference by defendants with the operations of complainants under certain oil leases. From a decree for complainants, defendants appeal.

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.</p> <p>This case comes up on appeal from the decree of the circuit court of the United States for the Eastern district of North Carolina. The bill is filed by the United States against the defendants, seeking satisfaction of certain claims of the United States, by the sale of lands in the state of North Carolina, to which the defendants assert title. The facts as they appear in the record are as follows: At the May term, 1816, of the circuit court of the United States for the district of North Carolina, held at Raleigh, the United States recovered two judgments against Benjamin Smith, — one in the sum of 83,250, with interest from 28th November, 1803, and costs; and the other in the sum of $3,251.27, with interest from 28th November, 1803, and costs. The judgments were duly entered, and executions issued thereon. The United States aver that they remain unpaid. The marshal for that district, in order to satisfy the judgments, levied upon certain slaves of the defendant Smith. Smith was unwilling that the slaves be sold under these executions, and, to this end, negotiations were opened and concluded between the marshal and John F. Burgwin, acting as the agent and friend of Smith and his wife, the result of which was that Burgwin entered into bond in the penal sum of $20,000, the condition of which recited that, at the instance of Burg-win, the marshal had given up the possession of the negroes, and substituted in lieu thereof a right to levy upon and sell in satisfaction of the judgment certain lands, the legal title to which stood In the name of Burgwin, the sale of which should be consented to by Burgwin. Among these lands was the land concerning which this bill is filed. It is described as follows: “A certain piece or parcel of land, lying and being- in the county of Brunswick and state of North Carolina, commonly known by the name of the ‘Cape Island’ or ‘Bald Head’; beginning at the point of high land next to- Cape Point; running thence, along the sea shore, north, 20 degrees east, 624; thence N. 75; thence So., 85 W., 35; then So., 55 W., 60; then N., 70 W., 48; then So., 80 W., 10, to a little marsh; then to a great marsh at the mouth of Cape Pear; now then So., 65 W., 100; then, along said marsh, So., 55 E., 290; then So., 40 W., 80; then So., 75 35, to the sea shore; then So., 55 E., 364, to the beginning, which tract of land was granted to Thomas Smith by grant bearing date the 8th day of May, 1713.” This tract of land was of the inheritance of Mrs. Sarah Dry Smith, wife of Benjamin Smith, and on the-day of -, 1816, was conveyed by deed of Smith and his said wife to John F. Burgwin, in terms conveying a fee simple absolute. It is alleged, however, and admitted, that, although absolute in its terms, the deed was really intended between the parties as a defeasible deed by way of mortgage. This deed was not rec'orded until 29th July, 1S29. On 25th September, 1820, Burgwin executed to Joseph G-. Swift a conveyance in trust of certain lands in New Hanover and Brunswick county, in North Carolina, among them a tract of land conveyed to him by George Hooper, and this tract, Smith’s Island, the Cape Island, or Bald Head. This deed recites the recovery of the judgment in 1810 against Benjamin Smith; the levy under execution upon his negroes; his desire to avoid a sale of the negroes; the interposition of Burgwin; the execution of the bond by him in the penal sum of $20,000; the substitution of the lands for the slaves, especially of the tract conveyed by George Hooper; that the sale of the lands had not yet taken place; that both Burgwin and Smith desired that the former be relieved from his responsibility, and that the comptroller of the treasury of the United States had consented to release Burgwin from his penal obligation, provided that he would vest the property in Joseph G. Swift, as a trustee, for securing said debt to the United States, and for other purposes; that one deed had been executed to this end in 1818, which was not satisfactory to the comptroller, and then this deed was made. It conveys in fee to Swift a number of tracts of land in the above-named counties of North Carolina, among them the Hooper tract, and this Smith Island, Cape Island, or Bald Head tract. The conveyance is to the following uses, intents, and trusts hereinafter mentioned. “First, to pay the before mentioned debt to the United States by a sale or sales to be made in such manner as he, the said Joseph G. Swift, may think best for enhancing the value of the lands, and then in trust to and for the separate t use of said Sarah Dry Smith, during her coverture, free from the control or' debts of her husband, Benjamin Smith, and, after the coverture, then in trust for the survivor of them, the said Benjamin and Sarah Dry Smith, for life, and afterwards in trust for the said Benjamin', his heirs and assigns, forever, with power, nevertheless, in said Sarah Dry Smith during her coverture (after the said debt to the United States is satisfied, and all necessary costs and charges are paid in accomplishing a sale for said purposes), by any instrument of writing in nature of a deed or of a last will and' testament, executed in the presence of one or more creditable witnesses, to limit and appoint the said lands, or any part thereof, to any person or persons, upon any uses, trust, or estate which she may deem proper, which said limitations and appointments shall then take place and supersede the further trusts and uses declared.” This deed was not recorded until 29th July, 1829. On lOtli June, 1833, an indenture tripartite was executed between Joseph G. Swift, John F. Burgwin, and Thomas P. Devereux, which recited the execution of the deed of 25th September, 1821, between Swift and Burgwin, in detail, and that it was thought to be more for the interest of the United States that the lands and premises therein described be conveyed to Devereux, so as to substitute him in the place of Smith; and thereupon both-Smith and Burg-win, for the purposes of this substitution, conveyed all these lands, including the Hooper lands and the Bald Head tract, to Devereux, in fee for such estate and under such terms, conditions, and limitations as the same remained in the said Joseph G. Swift or John F. Burgwin, or either of them, at and immediately before the signing and ensealing of these presents, but for no other or greater estate than the said Joseph G. Swift or John F. Burgwin, or either of them, then had and held the same. This- deed was duly recorded.</p> <p>Thomas P. Devereux died in March or April, 1869, leaving a large number of heirs at law and distributees, “scattered from the state of Texas to the state of New York”; and in 1891 proceedings were instituted in the circuit court of the United States for the Eastern district of North Carolina by the United States against the descendants of Thomas P. Devereux, praying that they be relieved of the trust, and a new trustee appointed. These proceedings resulted in the appointment of another, Thomas P. Devereux, as trustee. He is a party to the case at bar as defendant; has been served, but has not appeared or answered, and is under decree pro confesso. Neither Burgwin nor Smith nor the United States have ever been in possession of these lands, or any part of them. Smith and his wife remained in possession, except that the United States has had a lease of a small tract of the land on Bald Head for the past 15 years, for a lighthouse or some such public purpose. Sarah Dry Smith, the wife of Benjamin Smith, died in 1821, having by her last will and testament devised all her estate, real and personal, to her husband. Benjamin Smith, she having made no further disposition of the Bald Head or Smith’s Island property in her lifetime. Benjamin Smith died in the year lS2t>, in possession of said property: and, by his last will and testament, he devised all his estate to Mary Grimke. At the March term, 1829, of the court oí pleas and quarter sessions of the county of Brunswick, N. 0., Robert Home, a creditor of Benjamin Smith, obtained a judgment against his executors, tested first Monday in June.. 182!), and issued execution thereon, which was levied upon the lands of Smith’s estate in the hands of his devisee, Mary Grimke. The property was sold by the sheriff, and at the sale this Bald Head or Smith’s Island land was purchased by John Walker and John It. Holmes, and a deed made to them. Holmes died shortly thereafter, and his estate in these lands descended to his sole heir at law, John W. Holmes. At the death of John W. Holmes, his heirs conveyed all their estate to John Walker. Soon after the execution of the sheriff’s deed to Walker and Holmes, they went into actual possession of the lands conveyed, and Walker remained in possession, first with John If. Holmes, then with John W. Holmes, and then with the heirs of John W. Holmes, and afterwards in sole seisin until his death in 1862. Since that time, all of the defendants blit Thomas I’. Devercux (heirs at law of John Walker) have been in possession of the land. The lease to the United States above spoken of was made in 1881. (31st January). It covers a small part of this Bald Head tract, and is for the term of 15 years. The United States entered under this lease, and remained and still remains in possession under it.</p> <p>At December term, 1825, of the court of pleas and quarter sessions for the county of Notv Hanover, N. 0., the administrators of James Richard obtained a judgment against Benjamin .Smith, on a debt contracted before the deed of Smith to Burgwin was executed. The sheriff, under execution issued upon this judgment, levied upon and sold the Hooper lands to William W. Jones. The Hooper lands, as has been seen, are included in the Burgwin-Smith deed. At the May term of the circuit court of the United Stales for the district of North Carolina, the case of Doo, on the demise of Joseph G. Swift, against William Walt Jones, was tried, the question in which was the validity of this Bui’gwin-Smith deed. The cause was tried before Chief Justice Marshall and Judge Potter, the district judge, on an agreed statement of facts. The court held “that the deed from Burgwin to Smith was void and inoperative to pass title to the lands mentioned therein, for want of duo and legal registration thereof.” The bill sets up the rights of the United States as cestui quo trust under the Burgwin-Swift deed, and seeks a sale of the lands, Smith Island or Cape island or Bald Head, and the application of the proceeds of sale to the Smith debt. The bill prays that Hie deed to John Walker he declared null and void, and that the defendants be required to execute a quitclaim in the lands to Devercux, trustee, or the purchaser of the premises under an order of sale by the circuit court; that the lands he sold for the purpose of satisfying the debt due to the complainant; and that the purchaser at such sale be let into exclusive possession; and for general relief. The answer set up an objection for want of proper parties. The agreed statement of facts, a part of the record, contains this clause: “It is agreed as a fact that all necessary parties to this action have been brought before the court.'’ On this point no opinion is expressed. The answer then admits the execution of the Burgwin-Swift deed, and avers that the same was inoperative because not properly recorded. It also admits the execution of the deed by Smith and wife to Burgwin, and avers that it, although absolute on its face, was in fact a mortgage, and void for want of registration. It sets up the title under execution to John Walker, and the long, continuous, adverse, and actual possession of the lands by (hem and their ancestor, as in bar of any claim by the complainant. Tt sets up the plea, of the statute to the right of action of the .trustee under the Swift deed, and relies on the presumption from lapse of time to perfect their title.</p>

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

<p>1. Discovery in Equity — Powers of Federal Court.</p> <p>The power of a federal court of equity to entertain a cross hill for discovery in a suit in equity has not been abridged by any act of congress or rule of the supreme court, and is not superseded by statutory methods provided for obtaining facts in actions at law.</p> <p>2. Same — Cross Biel against Corporations.</p> <p>It is not a sufficient reason for a corporation to refuse to answer a cross bill against it for discovery that its officers and employés are made competent witnesses for either party by the federal statutes, such testimony not being the exact equivalent of a discovery by the corporation itself.</p> <p>3. Same — Right of Defendant to Disclosure — Matters Going to Plaintiff’s Title.</p> <p>In a suit by a gas company against a city to enjoin the enforcement of an ordinance fixing the price of gas on the ground that its effect is to take the plaintiff’s property without just compensation, the plaintiff cannot refuse to answer a cross bill for discovery on the ground that the evidence called for relates to matters which it would be required to prove to establish its case, and is, therefore, evidence going to plaintiff's title, where such matters affect the question of the validity of the ordinance which constitutes defendant’s title, and the validity of which is affirmed in its answer.</p>

<p>1. Patents — Limitation' of Claims — Forms and Proportion.</p> <p>It is of little consequence whether the relative dimensions of parts of a device are gathered from a scale expressly shown, or from the apparent proportion indicated by drawings without a scale; and, in either event, the dimensions shown are not to be taken as elements in the claim, unless the patentee has expressly limited himself within the rules stated by the circuit court of appeals for the First circuit in Reece Buttonhole Mach. Co. v. Globe Buttonhole Mach. Co., 10 O. C. A. 194, 61 Fed. 958.</p> <p>8. Same — Anticipation.</p> <p>An inventor is entitled to be protected to the extent of what he practically accomplishes, and no more, and anticipatory matter which has never gone into practical use Is to be narrowly construed.</p> <p>8. SaMe — Patentable Method or Art.</p> <p>A method of making rolled-metal forgings that are circular in cross-sectional area, by means of dies used In pairs, and moved in opposite directions over the metal to be shaped, hold to be patentable as an “art,” in that it involved the application of knowledge or science to effect a desired practical purpose, and did effect it.</p> <p>4. Same — Car-Axle Dies.</p> <p>The Simonds patent, No. 319,754, for improvements in faces for car-axle dies, held not anticipated by Uie Bundy English patent^ of May 1, 1806, for “machines or instruments for making leaden bullets and other shot”; and also held valid and infringed as to claim 1.</p> <p>5. Samis — Method of Making Rolled-Metal Forgings.</p> <p>The Simonds patent, No. 419,292, for a method of making rolled-metal forgings that are circular in cross-sectional area, held to show patentable Invention over the Bundy English patent, of May 1, 1806, and over Simonds’ earlier patent, for improvements in faces for car axles (No. 319,75-1); and also held Infringed.</p> <p>6. Same — Invention.</p> <p>The difficulties arising under the expressions of the supreme court in Lock Co. v. Mosler, 8 Sup. Ct. 1148, 127 U. S. 354, and in Underwood v. Gerber, 13 Sup. Ct. 854, 149 U. S. 224, with reference to the issuing of independent patents for a machine, an art, and a product, involved in the same fundamental invention, do not apply to the present case, because Simond’s second patent clearly showed invention over his earlier patent.</p>

<p>Appeal — Final Judgment — Condemnation Proceedings.</p> <p>In proceedings on a petition for Ihe condemnation of a right of way, a judgment sustaining a demurrer to an answer tiled by defendant, which leaves proceedings for the appointment of a commission and the assessment of damages still to be taken by the court, is not a final judgment from which an appeal lies.1</p>

<p>1. Appeal and Error — Petition foe Allowance — Dismissal.</p> <p>A writ of error is the cnly mode by which a judgment at law can be brought up for review, bu- such a writ, properly issued and in the record, will not be dismissed because the petition and order were for the allowance of an appeal, and not a writ of error. The petition and order, while required by proper practice, are not essential to the jurisdiction of the appellate court.</p> <p>2. Same — Dismissal—Bill ok TOxoki’thws.</p> <p>A writ o£ error will not be dismissed because of the absence of any bill of exceptions, where the only questions in the ease are of law, and the erroi's, if any, are apparent of record.</p>

This case comes up on writ of error from the circuit court of tbe United States for tbe Eastern district of North Carolina. Tbe action was at law, and was by stipulation beard by tbe court without tbe intervention of a jury. Tbe court below found for tbe plaintiff, and tbe case is here on assignments of error. No Mil of exceptions is in the record. As the errors charged are errors of law on the face of the record (Young v. Martin, 8 Wall. 351) such hill Is not necessary.

This was a suit on an insurance policy. The bill of exceptions shows that m November 21, 1895, Gerstle Bros, executed a deed of assignment for the benefit of creditors to the plaintiffs, Ewing and Solinsky, trustees, conveying, among other things, their stock of goods in their store in Pulaski; that certain creditors filed hills in chancery attacking the assignment, and attached the stock of goods, and plaintiffs were appointed receivers in these suits November 22, 1895;…

<p>On Demurrer to Reply.</p>

This was an action brought to charge individually the directors of a corporation for a debt of the latter, grounded upon their failure to make proper annual reports to the secretary of state, as required by the statute of Michigan, which statute imposes a personal liability for such failure. On demurrer to declaration.

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

<p>1. Municipal Bonds — Estoppel by Recitals — Refunding Bonds.</p> <p>A recital in county bonds that they were issued in accordance with the provisions of a statute authorizing counties to refund their indebtedness imports that they were .issued in pursuance of a lawful and proper reso-lulion, and of honest and .inst action on the part of the county hoard, under that statute, and also that the obligations refunded were such as could lawfully be refunded thereunder. It relieves the innocent, purchaser of all inquiry, notice, or knowledge of the actual aciion and record of the hoard, and estops ¡he county from denying that proper action was taken and that a lawful resolution was passed.</p> <p>¡a. Same — Recitals in Record.</p> <p>A municipal corporation cannot make a false certificate on the face of its negotiable bonds, or a false record that they are issued in accordance -with the law for a lawful purpose;, and then defeat a recovery upon them hr an innocent purchaser, who lias bought in reliance lipón (he certificate or record, by proof that they were in fact issued for an unlawful purpose.</p> <p>3. Sami; — Construction of Statute — Refunding Bonds.</p> <p>Laws Ran. 1879, c. 50, as construed by the supreme court of that slate, which construction is binding on the federal court;;, authorizes the commissioners of a county to refund with negotiable bonds all indebtedness of the county that ivas due at the time of its passage, or that might at any time become due.</p> <p>4. Constitutional Law — Impairing Obligation of Contracts — Refunding Municipal Bonds.</p> <p>Bonds issued by the board of commissioners of a county of Kansas, which, under the constitution and laws of that state, is the only body which can exercise the iiowers of. or make a. contract for, the county as a body politic or corporate, although they may be issued upon a petition of the taxpayers, or on a vote of the electors of the county, arc contracts of the county only, and not of the petitioners, taxpayers, or voters, who are not bound by the obligation thereof; hence a change in the temía of such contracts by the issuance of refunding bonds, under proper legislative authority, does not impair the obligation of any contract made by the taxpayers or electors.</p>

<p>1. Constitutional Law — Impairing Obligation of Contracts — Refunding Municipal Bonds.</p> <p>Bonds issued by the board of commissioners of a county of Kansas, which, under the constitution and laws of that state, is the only body which can exercise the powers of, or make a contract for, the county as a body politic or corporate, although they may be issued upon a petition of the taxpayers or on a vote of the electors of the county, are contracts of the connty only, and not of the petitioners, taxpayers, or voters, who are not hound by the obligation thereof; hence a change in the terms of such contracts by the issuance of refunding bonds, under proper legislative authority, does not impair the obligation of any contract made by the electors or taxpayers.</p> <p>2. Municipal Bonds — Refunding Debt of County — Necessity of Vote.</p> <p>The refunding of a debt of a county, evidenced by a judgment against it, by the issuance of bonds in payment thereof, as authorized by Laws Kan. 1879, c. 50, is not the borrowing of money, within the meaning of Gen. St. Kan. 1889, pars. 1630, 1632, prohibiting the borrowing of money by a county without first submitting the question of sueh loan to a vote of the electors; hence a vote Is not necessary to authorize such refunding.</p> <p>S. Same — Statutes—Repeal by Implication.</p> <p>A general law authorizing all counties and other municipalities in a state to refund their indebtedness, of every kind and description, by exchanging therefor bonds bearing not more than 6 per cent, interest, is not repealed by implication, as affecting a certain county, by a special act applying to such county only, which It authorized to issue a specified amount in bonds, bearing 8 per cent, interest, and to sell the same, and apply the proceeds to the payment of its outstanding warrants and the current expenses of a particular year, and which contained a proviso that the provisions of the general law should noi apply to such bonds. The two statutes are not repugnant as applied to such county, and it may legally act under both.</p>

<p>Mukioipal Bonds — Estoppel by Rkoitals — Rkfundino Bonds.</p> <p>A county which issued bonds containing a rfeeital that they were issued in accordance with the provisions of a statute authorizing counties to refund their indebtedness cannot defeat recovery thereon, by a purchaser in open market in reliance on such recitals, by proof that there was included therein a sum in excess of the actual prior indebtedness of the county, which was prohibited by the statute.</p>

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

This was a proceeding to determine the right of John J. Steadman, clerk of the district court of the United States in the Southern district of Iowa, to the office of clerk of the circuit court in the Eastern and Western divisions of said district.

<p>This is a prosecution under Rev. St. § 3892, for violation of the postal laws. Heard on demurrer to the indictment.</p>

<p>This was an indictment against Richard R. Kenney for violating the national banking laws.</p>

<p>This was an application by John J. Keller & Co. for a review of a decision of the board of general appraisers affirming the action of the collector of the port of New York in the classification for duty of certain imported merchandise.</p>

This was an application by W. J. Matheson & Co. for a review of a decision by the board of general appraisers affirming the action of the collector of the port of Yew York in respect to the classification for duty of certain imported merchandise.

<p>1. Customs Duties — Classification.</p> <p>An article not commercially known in this country at the time of the passage of a tariff law, hut subsequently imported, and which in fact comes within the proper definition of a similar article then known and provided for in the act, and which is so designated commercially, is entitled to be classified as such.</p> <p>2. Same — Alizarine Black.</p> <p>The article imported since 1891, and commercially known as “alizarine black,” but more particularly designated as “alizarine black 4 B,” to distinguish it from the article theretofore and still imported and known as “alizarine black,” both being products of coal tar and dyes having similar properties, but somewhat different in chemical composition, is properly classified as a dye commercially known as “alizarine black,” under paragraph 47S of the free list in the tariff law of 1890, and not under paragraph 18, as a coal-tar color or dye not specially provided for.</p>

<p>This was a suit in equity by the Gtormully & Jeffery Manufacturing Company against the Stanley Cycle Manufacturing Company and others for the infringement of a patent. On final hearing</p>

<p>This action is bastid upon letters patent, Ho. 474,997, granted to the complainant Palmer, May 17, 3892, for an improvement in woven valances for hammocks. The complainant Peder owns an exclusive license to make, use and sell garment protectors under the patent.</p> <p>The patentee says:</p> <p>‘‘My invention relatos to an improvement in hammock valances or drapery which when applied to the top edge of the hammock will hang in fulled form. The invention consists in a. valance or piece of drapery formed of woven fabric in which the woven selvage edge is shorter than the corresponding portion of the fabric intermediate of the selvage edg-e and fringe. My invention further consists in a valance or piece of drapery formed of woven fabric, having- at one of its edges a fringe formed of weft-threads, which enter into the weaving’ of the body portion of the hammock.”</p> <p>Again he says:</p> <p>“When tlie selvage edge or that portion where the warp has been fed and taken up more slowly is a piffled straight along the edge of the article or along tlie strppoi t from which the valance is to hang, the portion whore the warp has been fed and taken up more rapidly and which has advanced in the weaving faster than tlie edge will hang in folds, presenting an appearance quite similar to that which would be obtained by gathering- the edge, as is commonly done. To form the fringe, the wn.rp is omitted along the central portion of the blank for a distance equal, to twice the length of tlie fringe, so that when cut through the middle the fringe will liang from the opposite edges of the woven fabric at the point where the warp-threads on the opposite sides of the center of the blank are introduced. To increase (lie body of the fringe I weave more weft-threads, p, across the central portion of the fabric than at the edges — for example, by holding open the sheds of warp from the outer edges of the blank up to a point a short distance from where the fringe hangs from the edge of the fabric, (up to a point, e, for example, as shown in the accompanying drawings,) while the weft-tliread is carried one or more times hack and forth, and then proceeding with the wearing. This being repeated at short intervals throughout the weaving will as a matter of course increase the number of weft-tlireads at the center, and when the blank is cut will provide a thick handsome fringe.”</p> <p>The third claim only is involved. It is as follows:</p> <p>“(3) A valance formed of woven fabric and having a fringe composed of weft-threads which enter regularly into the weaving of the woven portion of the valance, and of additional weft-threads which engage a portion only of the warp-threads at the fringe edge of the woven portion, substantially as set forth.”</p> <p>The défenses are noninfringement, anticipation, and want of pat-entability.</p>

<p>This was a suit in equity by Alexander McTammany and the Regina Music-Box Company against Alfred E. Paillard for the infringement of a patent relating to automatic musical instruments. Oil final hearing.</p>

<p>These were suits in equity for the infringement of three patents owned by the complainant Thomas P. Morrin relating to improvements in steam generators.</p>

<p>1. Admiralty — Suit by Shipowner to Tumit Liability — Powers of Court.</p> <p>Tiie powers of an admiralty court in proceedings instituted by shipowners, under Rev. St. §§ 4283, 4284, to limit their liability, are as extensive, and its remedies are as effective, as are those of a court of chancery, where its jurisdiction is invoked in an equitable proceeding.</p> <p>2. Same — Failure to Surrender Vessel 'Liable — Power of Court to Seize.</p> <p>Whore shipowners have invoked the jurisdiction of a. court of admiralty by a petition to limit their liability, under Rev. St. §§ 4283, 4284, and, having thereby secured the stay of proceedings by libelants, surrender but one of two vessels held by ihe court to be liable, the court, having full equitable powers to adjust the rights of all parties interested. is not bound to dismiss the proceedings for that reason, but may by its own process, or its own order, seize the other vessel, and 'make distribution of the entire fund which it was the duty of the petitioners to tender by their petition; and such is the proper, and only equitable, course, where, by reason of the proceedings, suits by libelants have been delayed for a number of years, during which the shipowners have become insolvent.</p> <p>3. Same — Manner of Seizure.</p> <p>11. is not material in such case, where the vessel has been brought into court, and her owner lias stipulated to pay her appraised value, whether or not she was brought in by the appropriate process.</p> <p>4. Corporations — Reorganization — New Corporation as Purchaser without Notice.</p> <p>A reorganized corporation, having the same officers and attorneys as the old, and succeeding to its property by' purchase at a receiver’s salt, is not a purchaser of such property without notice of the rights therein of parties to pending- litigation between them and the old corporation involving the right to a lien on such property, -and cannot relitigate in such suit questions which have been adjudicated as against the old corporation.</p> <p>5. Admiralty — Suit to Ltmit Liability — Distribution of Fund.</p> <p>Where, in proceedings on ihe petition of shipowners to limit their liability to libelants of a vessel, their petition is granted, and the fund in court is insuificienl to i>ay in full the amount found due. to one defendant, the petitioners cannot complain that a xiortion of it is erroneously distributed to other claimants.</p> <p>6. Res Judicata — Questions not Raised on Former Appeal.</p> <p>In a suit by shrpoyvners, under the statute, to limit their liability to certain libelants of vessels, the' court adjudicated the claims of the defendants, and distributed between them the fund in court. An apjieal was taken by the defendants, and the decree was reversed, on the ground that the petitioners had not surrendered all the property liable; but on such appeal no question was raised as to .the validity of the claims allowed to the several defendants, nor was such question raised by new pleadings after the case was remanded. Held that, as between the defendants, the validity of the claim of eaeh was res judicata, and could not be questioned by any of the other defendants on a subsequent appeal.</p>

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

<p>Admirai,ty — Liber for Wages — Weight op Evidence.</p> <p>Whore there is a direct conflict oí evidence between the witnesses for a libelant suing for wages and tlie captain, the fact that there was another witness, who knew the fads in dispute, and apparently might, have been examined by the claimant, will determine the issue in favor of the libelant.</p>

<p>This was a libel in rem by Edgar J. Hesslein and others against tbe steamship Lennox, to recover for damage to cargo.</p>

<p>Marine Insurance — Commissions on Charter — Canceling Clause — Negligence.</p> <p>A shipping broker, on November 18th, insured his commissions of $250 for obtaining a charter for the ship F., which ivas to proceed from London to Newport News and there load, with an option to the charterer to cancel if the vessel did not arrive by February 15th. On insuring no reference or inquiry was made as to a cancellation clause; but the defendant was in the habit of making such insurances, and by present usage such charters usually contain a cancellation clause. The vessel after remaining a month in London, while anchored in the Thames was injured by collision, and three weeks afterwards by a second collision. The injuries were not large and might have been repaired in time to reach Newport News within the charter period. No attempt was made to prepare her for the voyage, but the master remained in London to prosecute suits for the collisions- and in April went to Bremerhaven, the home port, and repaired for about $1,500. Held (1) that the defendants presumptively had knowledge of the current usage to insert in such charters a time and cancellation clause, and were presumed to insure against sea perils for the contemplated voyage to be made within the charter period, and not for a later voyage which would frustrate the purpose of the charter and would be commercially a different voyage from that contemplated in the charter or the policy; but (2) that the facts indicated the negligence of the ship in not repairing earlier to Newport News, or attempting to make repairs to go there, as the proximate canse of the loss of the charter rather than sea perils; and that such negligence was not within the policy..</p>

<p>Tbis was a libel in rem by John W. Hall against the steamship Gate City to recover damages caused by a collision between her and libel-ant’s schooner, Joel Cook. The New England & Savannah Steamship Company filed a libel in personam against libelant, to recover for damages suffered by the Gate City.</p>

This was an action by Louis N. Perkins, administra lor, a citizen of Connecticut, against the Boston & Albany Railroad Company, to recover for the death of his intestate, who was an employé of defendant company, under Bub. fit. Mass. c. 112, § 212, as amended by Lkws 1883, c. 213, which reads as follows: “Sec. 212.

<p>1. Corporations — Mortgages—After-Acquired Property Clause.</p> <p>An after-acquired property clause in a mortgage given by a corporation, attaches to property to which the mortgagor subsequently acquires either the legal or equitable title, but subject to the limitation that the mortgagee is not a purchaser for value as to such property, and can take by way of lien no greater interest than that acquired by the mortgagor itself; and his lien is subject to all known liens or equities, valid against the mortgagor, which arise in the act of purchase or acquisition, and which qualify the scope and extent of its ownership.</p> <p>2. Same — Property Paid for by Third Party.</p> <p>A corporation issued bonds secured by a mortgage on its property, and also covering after-acquired property. ,lt • subsequently made additions to its property not contemplated when the mortgage was given, the money for which was furnished by a third party under a contract by which the corporation agreed to, and did before the property was conveyed to it, execute its bonds to such third party, secured by mortgage on the property so obtained. Reid, it appearing that the transaction was in good faith, that the lien of such mortgage was superior to that of the first mortgage.</p> <p>8. Same — Right of Way in Streets — Improvement by Third Party.</p> <p>Such second mortgage, however, did not attach as a first lien to rights of way in streets granted to the corporation by municipal ordinances, or by individuals over their property, for a nominal consideration, nor to improvements thereon made l>y the mortgagee, though both were expressly included in the mortgage, and the improvement was necessary to prevent a forfeiture of.the grants. The title to such rights of way, as realty, passed to the corporation at once on the passage of the ordinances or the making of the deeds, and became subject to the first mortgage, under the after-acquired properly clausa; and the lien for the tracks and improvements subsequently placed thereon by the second mortgagee, which became a part of the realty, did not arise out of the act of acquisition by the corporation.</p> <p>4. Same — Priority of Liens.</p> <p>A bridge company, which had executed a mortgage on its property, con-tabling an after-acquired clause, made a contract with a -trust, company by which the latter agreed to purchase for llie former land upon which to build new approaches to its bridge, and to pay the consequential damages which might accrue by reason thereof; the title to be conveyed to tlie bridge company upon repayment of the sums so expended. The contract further undertook to create liens upon the property, subject to the rights of the trust company, in favor of persons who should furnish the money to build the approaches. Held, upon a foreclosure of liens against the property of the bridge company, that the title of such company to the approaches was subject to the payment of the amount due the mist company, but that on its payment the property at once became subject to the first mortgage, and the contract was ineffective to displace such mortgage in favor of the liens for money expended in the improvement; the interest which was thus subjected to such liens being the interest of the bridge company, and not that of the trust company.</p> <p>5. Same — Mechanics’ Liens.</p> <p>A mechanic’s lien for work and materials furnished for the building of the approaches under a contract with the bridge company, based on the mechanic’s lien law of Kentucky of 1888, which gives a right to a lien “on the property and franchises of the owner and owners thereof,” attached only to (he equitable interest of the bridge company, and not to that of the trust company, to which it is subordinate; but, under the provisions of the statute that such lien .upon the structure shall be prior in rigid to mortgages theretofore and thereafter created upon the land, it takes precedence of the liens created by the contraed between the two companies in favor of those furnishing money to aid in building the improvement.</p> <p>6. Mechanics’ Liens — Construction of Contract — Waiver of Right to Lien.</p> <p>A contract for making improvements on property lying in two states, for a lump sum, and providing for the execution of notes for such sum, secured by collaterals, some of which notes did not mature within the time in which suits to enforce a mechanic’s lieu were required to hi; brought, is inconsistent with an intention that a right to such lien should exist, and an implied waiver of such right.</p> <p>7. Corporations — Foreclosure of Liens — Method of Hale of Property.</p> <p>Where it becomes necessary to decree the sale of the property of a corporation which is subject to divisional mortgages or liens, each of which constitutes a first lien on one part, and a subordinate lien on others, it is proper to direct that such parts shall be offered separately, and then the property as a whole, the bid or bids which will realize the larger sum to he accepted, and, if sold as a whole, to distribute the proceeds in proportion to the value of the different parts as established by the separate bids.</p>

The statement of the case by Judge SWAN at the circuit is given below: ■ The bill in this cause was filed against Daniel Hand in his lifetime, to enforce an alleged trust in, and to obtain an accounting of, the rents, profits, and proceeds of lots 6, 7, 8, and 9 of the military reserve, in Detroit, said lots having a frontage upon Michigan avenue of about 200 feet. The property described is near the center of the city of Detroit, and is valued at more than $11)0,000.

Appeal;? from the Circuit Court oí the United Ríales for the Eastern District of [¡Michigan. This case is an appeal from a decree dismissing the intervening petition of the appellant, Charles II. Vernier, filed in a mortgage foreclosure proceeding, wherein the Fanners’ Loan & Trust Company was complainant, and the Adrian Waterworks Company was sole defendant.

Hearing on petition of the receiver to enjoin proceedings for the collection of taxes on property of the defendant, an insolvent corporation.

This is a suit in equity by the Chicago, Milwaukee & St. Paul Railway Company against William H. Tompkins, W. T. La Follette, and Alexander Kirkpatrick, constituting the board of railroad commissioners of the state of South Dakota.

<p>Cross Appeals from the Circuit Court of the United States for the Eastern District of Tennessee.</p>

<p>1. Mortgages — Rights Granted in the Property by Mortgagor.</p> <p>Under tlie general law governing mortgages in this country, a mortgagor is entitled to possession until condition broken, and during such time may lease and deal with the property in all respects as owner, subject, however, to the rights of the mortgagee, upon whose entry into possession all rights granied hy the mortgagor cease and determine; the contracts by which such rights are granted, whether of tenancy or of an easement, being no longer of force as against the mortgagee, nor binding upon the grantees.</p> <p>2. Same — Effect of Foreclosure — State Statute.</p> <p>The statute of Michigan (2 How. Ann. St. § 7847) providing that no action of ejectment shall he maintained by a mortgagee or his assigns or representatives for the recovery of the mortgaged promises until the title thereto shall have become absolute on a foreclosure of the mortgage merely takes away the remedy of the mortgagee hy entry or ejectment, and does not in any way affect his rights against those claiming an interest in the premises under the mortgagor, which are devested by the taking of possession after foreclosure the same as by entry at common law; and it is not necessary, to that end, that a tenant or the holder of an easement should have been made a party to the foreclosure.</p> <p>3. Telegraphs — Right to Occupy Railroad Right of Way — Effect of Act of Congress.</p> <p>The act of .Tilly 24. 18G6 (Rev. St. §§ 52(53, 52(58, 5269), authorizing telegraph companies complying with its terms to construct and maintain their linos along and over all post roads of the United States; and Rev. St. § 3961, making all railroads post roads, — do not give a telegraph company the right io occupy the right of way of a railroad with its line without its consent, or a contract with a prior owner which is binding upon it.</p> <p>4. Same — Right of Way — Powers of Court of Equity.</p> <p>A court of equity has no power, on the ground of public necessity, to effect an equitable condemnation of an easement of way for a telegraph line over the right of way of a railroad, on which it was built and operated under a contract with a prior owner of the road, which has heen terminated by the sale of the road on foreclosure of a mortgage antedating such contract.</p>

In tlie above case, the parties plaintiff and defendant, by a written stipulation, duly filed, waived a jury trial, and agreed that the case should be tried by the court upon tlie facts and the law; and, from the evidence submitted, the court finds the facts to be as follows: (1) When this action was brought, the plaintiff, W. H. Jamison, was a citizen of the slate of California, and the defendant, the independent school district of Rock iiapids, was a municipal corporation,…

<p>1. Life Insurance — Representations not Material to Risk — Intent to Deceive.</p> <p>An applicant for life insurance, in answer to a question, stated that he had never directly or indirectly been engaged in the sale of wines or liquors. He had during 10 years, .ending 5 years before the application was made, been engaged in business as a druggist, in connection with which he had sold considerable quantities of liquors. In an action on the policy, it was held that if the statement wd's made willfully, with intent to deceive, was relied on, and did deceive, it would avoid the policy, though immaterial to the risk; but if it was made incidentally, without reckless intent, and without having in mind the distinction between the traffic in liquors as a traffic- by itself and as one incidental to the druggist’s business, where it was not material to the risk, it would not constitute a defense.</p> <p>2. Same.</p> <p>Northwestern Life Ins. Co. v. Muskegon Bank, 122 U. S. 501, 7 Sup. Ct. 1221, and Insurance Co. v. Davey, 123 U. S. 739, 8 Sup. Ct. 331, applied.</p>

<p>SlIEItIB'FS — WRONGFUL EXECUTION OF WRIT OB' ReI'LEVIN — LIABILITY IN ThES-FASS.</p> <p>In the statutory action of replevin in Indiana; the plaintiff is required to state by affidavit that he is the owner, or is lawfully entitled to the possession, of the property described, which is unlawfully detained by the defendant; and the writ issued commands the officer to take the property from the possession of the defendant named therein. Held, that such a writ confers no authority on the officer to take the property from any other person than the defendant named, and if he executes it by seizing and taking the property by force from a stranger to the writ, who is the bona fide owner and in the actual possession, he may be sued in trespass therefor in a federal or other court having jurisdiction.</p>

<p>Í. Ret,base — Avoidin’o for Fraud in Action at Law — Pleading.</p> <p>It is proper, in a suit at law, for the plaintiff to meet a plea of release by a replication that the release was obtained by fraud, whether the fraud is in the execution or in misrepresentation as to material facts inducing execution, where the issue involves simply a question of fraud between the parties.</p> <p>8. Same — Impeachment for Fraud — False Statements.</p> <p>To entiilc a plaintiff to avoid a release for fraud, In law or equity, because of untrue statements knowingly made by defendant, it must appear — First, that defendant made such statements intending that the plaintiff should act upon them; and, second, that they were a substantial inducement to the execution of the release.</p> <p>8. Same.</p> <p>To render a false statement ground for 1he avoidance of a release, it must appear, not only that the person who executed the release would not have done so luid he been told the truth, but also that he would no1 have done so had no statement been made.</p> <p>4. Same.</p> <p>The holder of a policy of life insurance determined to surrender it, and obtain its surrender value, at the same time taking a new policy. For the purpose of effecting the change, he went to the office of the agent of' the company, where lie was examined by its physician, who rejected him as an applicant for new insurance, on the ground that he had an affection of the heart. At the same time, the physician stated to him that the disease was not in itself dangerous, and would not cause his death, but would prevent him from obtaining insurance in any other company, and advised him to retain the policy ho then held. The insured, however, surrendered the -policy, and he anti his wife, who was the beneficiary, executed a release thereon. In fact, his disease, as the physician knew, was likely to cause his death at any time, and did so within a. few days thereafter. Held, that the wife could not avoid the release because of the false statement made by the physician, which was not the inducement to its execution, nor intended to he so, although, if the physician had stated the truth within his knowledge, it might have prevented the surrender of the policy.</p> <p>5. Same — Execution without Reading.</p> <p>The beneficiary of a. policy of life insurance, who executed to the company a release of liability thereon upon its surrender, cannot avoid such release on the ground that she signed it without reading, at the instance of her husband, who was the insured, and in the belief that it was merely a receipt for accrued earnings, and left the policy in force, where she was able to read, and no fraud was practiced upon her by the company or its agent.</p>

This is an appeal from a decree of the circuit court affirming the decision of the board of general appraisers as to the classification of certain imported merchandise.

<p>1. Customs Duties — Construction op Law — Commercial Designation.</p> <p>To constitute a commercial or trade designation, as contradistinguished from a descriptive term, the words, it would seem, must be used in commerce in an unvarying or stereotyped order.1</p> <p>2. Same — Classification—Embroidered Handkerchiefs.</p> <p>Embroidered handkerchiefs, although both hemstitched and embroidered, are dutiable under paragraph 276 of the tariff law of 1894, as “embroidered handkerchiefs”; such words being descriptive, and not a trade-name.</p>

<p>Appeal from 1ke Circuit Court of the United States for the District of Oregon.</p> <p>This was a suit in equity by Edwin Norton and Oliver W. Norton, the appellants, against Mathias Jensen, the appellee, for the infringement Qf four letters patent, viz.: (1) The Norton patent, No. 267,014, dated November 7, 1882, as to claims 1 and 2; (2) the Norton and Hodgson patent, No. 274,363, dated March 20, 1883, as to claims 6 and 7; (3) the Norton and Hodgson patent, No. 294,065, dated February 26, 1884, as to claim 14; (4) the Jordan patent, No. 322,060, dated July 14, 1885, as to claims 1, 2, 6, 7, 11, 12, and 13. The patents, generally speaking, cover inventions for automatically putting the bottoms and heads on tin cans. The first of those patents (the Norton patent, No. 267,014) is upon what appellants claim to be the original invention of a machine for automatically applying tight, exterior fitting can-heads to can-bodies. The Norton and Hodgson patent, No. 274,363, and the Jordan patent, No. 322,060, are for improvements upon the Norton patent, No. 267,-014. The Norton and Hodgson patent, No. 294,005, is for a combined can-heading and crimping machine. The purpose of the hill was to restrain the defendant, Mathias Jensen, from using a machine for can-ending and crimping purposes for which a patent was issued to him on December 23, 1890, numbered 4-13,145. This was the second patent issued to Mathias Jensen for a can-ending and crimping machine. His first patent was issued to him on January 24, 1S88, is numbered 376,804, and was for “an improvement in can-crimpers and cappers.” This first patent has been before this court, and, in a suit brought by these appellants against the appellee, Mathias Jensen, and one John Fox, and the patent was held to infringe the four patents now sued upon. See Norton v. Jensen, 7 ü. S. App. 103, 1 C. O. A. 452, and 49 Fed. 859. It is strenuously contended by counsel for appellants that the rights asserted by them in that case and in the case at bar, and the matters of defense presented in both cases, are substantially the same, and that, therefore, the questions arising under the several patents of appellants now sued upon, with reference to the alleged infringement by the second Jensen machine, are res judicata between the parties. The claims of the four patents sued upon, alleged to have been infringed by Jensen’s second machine, are as follows: Claims 1 and 2 of patent No. 267,014, issued November 7, 1882, to Edwin Norton, of Chicago, Ill., for “improvements in machines for putting on the ends of fruit and other cans”: “(1) In a machine for applying to can-bodies heads fitting outside the same, .the combination of a device for sizing the exterior diameter of the can-body to conform to the interior diameter of the can-head, and holding the same so sized while the head is applied, said sizing and holding device having its end enlarged to fit the exterior diameter of the can-head, so as tp leave an annular space between it and the can-body for the reception of the flange of the can-head, with a device for forcing the can-head into said annular space, and thereby applying the head outside the can-body, substantially as specified. (2) In a machine for applying to can-bodies heads fitting outside the same, the combination of a chute or device for delivering the can-bodies to the machine, with a movable device for clamping the can-body and sizing its exterior diameter to conform to the interior diameter of the can-head, said clamping and sizing device having its end or mouth enlarged to leave an annular space between the same and the can-body clamped therein for the reception of the flange of the head, a chute or device for delivering the can-heads to the machine, and a device for forcing the can-head'into said annular space at the end of said clamping and sizing device, substantially as specified.” Claims 6 and 7 of patent No. 274,363, issued March 20, 1883, to .Edwin Norton and John G. Hodgson, of Chicago, Ill., for an “improvement in can-ending machines": “(6) The combination of the ean-body-clamping device or mold with a chute for the can-heads, a reciprocating head or piston at the base of said chute for automatically feeding the can-heads to the mouth of the mold and applying the same to the can-body, and a spring pin or device for holding the can-head in position at the mouth of the mold, substantially as specified. (7) The combination of the delivery-chute wheel having half-molds upon its periphery, reciprocating half-molds, chute for the can-heads, piston for applying the same to the can-bodies, -and discharging chute, substantially as specified.” Claim 14 of patent No. 294,065, issued February 26, 1884, to Edwin Norton and John G. Hodgson, of Chicago, Ill., for an “improvement in can-ending and seaming machines”: “(14) The combination, with a can-body-clamping mold, of a chute or device for delivering the can-bodies thereto, a chute or device for delivering the can-heads at the mouth of said mold, mechanism for applying the cdh-head to the can-body, and a mechanism for binding and compressing into a seam the flanges uniting the can head and body, substantially as specified.” Claims 1, 2, 6, 7, 11, 12, and 13 of parent No. 322,060, issued July 14, 1885, to Edmund Jordan, of Brooklyn, New York, assignor, by mesne assignments, to Edwin Norton and Oliver W. Norton, said patent being for an invention in “heading-machines for automatically applying the heads on the bodies of sheet-metal cans”: “(1) In a can-heading machine, the combination, with two reciprocating part-molds, of a reciprocating device for conveying the can-body to a position between said part-molds, and holding it there while said molds move forward to clamp the can-body, substantially as specified. (2) The combination, with two part-molds, of a l’eciprocating device for eon-veying the can-body to a position between said part-molds and holding it there until clamped thereby, substantially as specified.” “(6) The combination, with a pair of molds for clamping the can-body, of a plunger-head and a slide to adjust: the can-head opposite the mold, substantially as specified. (7) The combination, with a pair of can-body-clamping molds, of a plunger-head, a reciprocating slide; to move the can-head opposite the mold, and a clmte for delivering the can-heads to said slide, substantially as specified.” •‘(11) The combination, with a pair of can-body-clamping molds, of a chute for the can-heads, a slide for moving the can-head opposite said molds, and a lever and cam for operating- said slide, substantially as specified. (12) The combination, with two part-molds, of a can-head chute, a slide to move the can-head opposite the mold, a lever and cam for operating said slide, a plunger and plunger-liead, and a cam and lever for operating said plunger, substantially as specified, (it!) The combination, with two part-molds, of a reciprocating conveyor to convey to and hold The can-body between said molds, and a cam and lever for reciprocating said conveyor, substantially as specified.”</p> <p>Patent No. 207,014, Issued to Edwin Norton, November 7, 1882, is claimed, and was held to be, in the ease of Norton v. .Tensen, supra, an invention of a. primary character. It was held that Norton’s invent ion must be “considered as being of a primary character, standing at the head of the art as the first machine ever invented for applying tight, exterior fitting can-heads to can-bodies automatically.” That patent was therefore held to be entitled to a broad and liberal construction. It appears affirmatively, however, that the file wrapper of patent No. 2(57,014 was not offered In evidence in the case of Norton v. Tensen, supra. Put it was offered in evidence in the more recent case of Norton v. Wheaton, 44 U. S. App. 118, 17 O. O. A. 447, and 70 Eed. 83.'!. In that ease this court held that “the contents of the file wrapper, not; in evidence in the case of Norton v. Jensen, 7 U. S. App. .103, 1 C. O. A. 452, and 4Í) Fed. 859, show that Norton, in his application for the patent, claimed to have invented, not an automatic or any oilier kind of machine for putting ends on fruit or other cans, but to have invented ‘certain new and useful improvements in machines for putting on’ such ends.” This wrapper, which figures to such an important degree in the litigation affecting the validity of the various patents for automatically applying the heads on the bodies of sheet-metal cans, was introduced in evidence in the case at bar, and is as follows: “To All Whom It may Concern: Be it known that I. Edwin Norton, of Chicago, county of Cook, and state of Illinois, have invented certain new and useful improvements in machines for purling on the ends of fruit and oilier cans, of which the following is a specification: This invention relates to a machine for putting on the ends of fruit and other cans, wherein the joint, by which the ends are secured to the body is of the variety commonly called the ‘slip-joint,’ in contradistinction from a'seamed or turned joint. The objects sought are the performance of this operation automatically and with speed and efficiency. This invention consists in a clamping-mold, the interior dimensions and form whereof correspond with the exterior dimensions and form of the can-body, and the end whereof is chamfered away. In this invention the can-body is first placed within a clamping mold conforming accurately in shape and dimensions to the exterior of the can-body, and while confined in lliis mold the end of the can is forced upon the body by a piston entering the mouth of the mold, room being provided for the entrance between the mold and can-body of the flange home upon the end of the can hy chamfering away the interior of the mold slightly as far as said flange extends. The mold is also preferably made tapering at the mouth, whore the can end is received, so as to guide the end accurately to the body, and insure the registering of one with the other. In the furtherance of speed, 1 place a series of these molds, accompanied by pistons, upon arms radiating from and revolving around a common center, or upon a wheel, and at proper times actuate the molds to clamp and release the cans and the pistons to put on the ends by means of suitable devices with which they are connected or come in contact during the rotation of the arms or wheel.”'</p> <p>Norton then proceeds to describe his invention very particularly, by a reference to the drawings. Tie then made the following claims for his invention: “(1) In a can-ending machine, the combination of a clamping-mold conforming to the exterior of a can-body, a piston for forcing the cap or end piece upon the body, and devices for operating said mold and piston, substantially as specified. (2) In a can-ending- machine the combination of a damping-mold conforming to the exterior of the can-body, and chamfered away at the end so as to give room for flange of the cap or end-piece, a piston for forcing the end-piece upon the body, and devices for operating both mold and piston, substantially as specified. (3) In a can-ending machine, the combination of clamping-mold, conforming to the exterior of the can-body, a chute for admitting the can-ends, a piston for applying the ends to the body, and devices for operating both mold and piston, substantially as specified. (4) In a can-ending machine, the combination of a series of clamping-molds, mounted and rotating about the common center, devices for opening and closing said molds, a piston or pistons for each mold, and a device or devices for operating said pistons, substantially as specified. (5) The combination with a movable can-clamping and discharging mold, of a device for forcing the can-end upon the can-body while clamped in said mold, substantially as specified. (6) The combination with a clamping-mold for the can-body, of a chute or device for delivering the can-bodies to said mold, a device for presenting and retaining the can-end in position at the mouth of the mold, and means for forcing the can-end upon the can-body, substantially as specified.”</p> <p>The patent office, after due examination, rejected all of these claims, and assigned the following reasons: “Claims 1, 2, and 5 are rejected on each of the following: Pierce, December 21, 1880, No. 235,700, soldering machines. Dillon & Oleary, October 12, 1880, No. 233,079, and Brooks, March 23, 1880, No. 225,685, die seaming, and English patent, A. D. 1873, No. 4,237. Claims 3 and 6 are rejected on Pierce, and, since the chute which he shows may be applied to any one of the other references, the claims are rejected on all the other references, taken in connection with Pierce. Claim 4 is rejected on Pierce and on the English patent, each showing a series of clamps, and a stationary piston for inserting the head into each mold and its contained can as it comes opposite the piston. In view of the broad description, including various modifications of applicant’s machine, these patents meet the fourth claim.”</p> <p>Norton thereupon amended his application by inserting after the word “efficiency,” in his original application, the following: “Heretofore machines have been constructed for applying the heads to that class of cans where the flange of the head is inserted inside the can-body, or where the head is crimped on the can-body. In such machines the interior of the can-body is ordinarily sized so as to fit and receive within it the can-head by means of an interior mandrel or former, which is forced inside the can-body while it is secured within a mold or holder, and then the can-head is dropped or pressed into place inside the can-body, as illustrated in letters patent No. 235,700, granted to George H. Pierce December 21, 1880. As the can-bodies are originally formed around an inside mandrel, the interior diameter of the can varies, if at all, very slightly, and the side seam also ordinarily forms no projection on the inside of the can, as it does on the outside; so that the operation of applying the heads to this class of cans would be comparatively simple and easy, even if the heads were required to fit the can-bodies tightly, which, however, is not the case. But heretofore no successful method has yet been devised for automatically applying heads or covers to that class of cans wherein the flange of the cover, slips or fits over the body of the can, forming the ordinary slip-joint. In that class of cans it is essential that the heads or covers, when snapped on the can-body, should fit the same very tightly and accurately; and as the exterior diameters of the can-bodies always vary somewhat, owing to the varying thickness of the different parts of the stock from which they are made, the. operation of snapping or fitting the heads on the can-bodies is one of considerable difficulty, and when done by hand, as it heretofore always has been done,,it requires skilled labor,'and is a slow and tedious operation. The heads or covers for the cans are formed by a stamp, so that their interior diameters are always precisely the same, and in my machine the can-bodies are placed within a can-sizing and clamping mold, and compressed thereby until the exterior diameter of the can-body is made to conform accurately to the interior diameter of the head, and so held -while the head is forced upon 1he can-body, the mold or holder being* out away or enlarged at each end to conform to the exterior diameter of the head, thus leaving an annular space between (lie ean-body and mold conforming to tlu; (hickness and width of the flange on the can-head or end, into which annular space the head is forced, and then the mold is opened and the headed can discharged.”</p> <p>In lieu of the six claims made by his original application, which were rejected, as stated, by the patent office, Norton substituted four other claims as amendments. The fourth claim was ag-ain rejected by the patent office, but. the first three were allowed; and, as thus allowed, a patent was issued to Norton. The third claim is not involved in this case; the first two are, and have already been set out. In a. note appended by Norton to the amendments made to his original application, he thus further explained the character and scope of his invention: “The principle and mode of operation of the present invention is entirely different from that of the machine shown in the references, and is designed to- effect a very different result or purpose. The references all show devices for putting the heads inside of the cans. Instead of the inside mandrel shown in the Pierce patents for sizing and flaivui the interior of the can, in applicant’s invention no such method of operation is, or could be, adopted. In applicant’s invention the can is sized from the ouiside. None of the references show a mold or clamp for the can-body having an annular space between the can-body anti mold, into which Hie head is forced, nor do any of the references show sizing the exterior of the can from the outside, both of which are essential features of applicant’s invention. By the amended claims, ns well as by the amendment to the specification, it will be seen, we think, that applicant’s invention is properly limited and distinguished from the prior art, as disclosed by the references.”</p> <p>Two facts of vital importance in this case appear from the wrapper, viz.: first. Norton, in liis original and amended specification, never took the position of being an original inventor, but, on the contrary, simply claimed to be an improver. He claims to have invented certain new and useful “improvements in machines for putting on the ends of fruit and other cans”; second, when the patent office rejected all of his claims in the original application on the ground that they were anticipated by other inventions, Norton failed to contest, or enter any protest to, this ruling of the patent office, hut amended and limited his claims so as to conform to the ruling.</p> <p>In the specification forming* part of letters patent No. 443.445, which cover’s Jensen's second machine, he states that he has “invented a new and improved machine for capping and crimping* cans”: that “the invention consists in an improved mode of applying tire same principle as adopted in my prior invention. shown and described in United States letters patent No. 370,804, granted to mo January 24, .1888”; that “the object of the invention is to increase capacity and insure certainty, especially in capping and crimping cans after rlie same are filled, without spilling the contents.” After minutely describing his invention with reference' to the drawings accompanying the same, and llie mode of operation, Jensen made 1lie following claims: “(1) In a machine for capping and crimping cans, a heading device provided with two semicircular plate's, eaeh plate having one-half conical guíele at eacii end, and aelnpied 1e> close on eiilie'r one of two sietes alternately, and thereby form an endin' cone-guide or tapered hole on one side, while opening and separating on the other side1, substantially as shown and described. (2) In a machine' for capping and crimping earns, ilie combination, with a recessed table having two fixed, conical gniding-hoh's opposite each othe'r, of two semicircular plate's fitted in the said recess, adapfeel to close and form an entire conical guiding-hole on e'ither one of two side's alternately, and, in conjunction with cither one of said fixed, e’onical guiding-lioles, two passages adapted to receive nnel guíele', the can-caps, one at a, time, over said entire cone-guide when closed on either side, and means to move and stop the can-heads, one at a time', in said passage, while the ends of the can-bodies, one at a time, are guided through saiel entire eone'-guiele into the can-head, and a. headed can re'le'ased at the opposite side, substantially as shown and describe'd. (3) In a machine for capping anel crimping cans, the combination, with a table having two tapered guiding-holes fixed opx>osite eaefi other, of two semicircular plates fitted Into sa,Id table, and adapted to close at either one of two sides and form an entire tapered guiding-hole in conjunction with either one of said fixed holes, stop-pins on the said table through slots in the said plates to insure the said conjunction, and means to move and stop the can-heads, one at a time, over the small end of said entire guiding-hole when closed on either side, and while the end of a can-body is forced through said hole into the can-head, and a headed can removed at the opposite side alternately, substantially as shown and described. (4) In a machine for capping and crimping cans, the combination, with a revoluble can-heading device provided with flanges to push the can-caps forward with the revolution of said heading device, of a fixed plate or device adapted to guide the can-caps, one at a time, into said heading device, and hold it while the end of a can-body is forced into it, with means to actuate the same, substantially as shown and described. (5) In a machine for capping and crimping cans, the combination, with a revoluble disk horizontally arranged, and provided with an even surface to carry the can-heads on, of a fixed guideway adapted to guide the can-heads while carried on said even surface, a stop to stop the can-eaps while said even surface slides under the'same, and means to move the can-caps, one at a time, from said disk into a heading device, substantially as shown and described. (6) In a machine for capping and crimping cans, the combination, with-a revoluble* disk horizontally arranged, and provided with a smooth and even surface to carry the can-bodies on, of a fixed guide-way adapted to guide the can-bodies while carried on the said smooth surface, a stop over said smooth surface to stop the can-bodies while said disk revolves, and means to move the can-bodies, one at a time,- from said stop into a can-heading device, substantially as shown and described. (7) In a machine for capping and crimping cans, the combination, with a revoluble disk horizontally arranged, and provided with a smooth and even surface to carry the can-bodies on, of a fixed guideway to guide the can-bodies while carried on said smooth surface, a stop over said smooth surface to stop the can-bodies while said disk revolves, with means to move the can-bodies, one at a time, from said stop into a heading device, and again remove the headed cans from the same to a crimping device, substantially as shown and described. (S) In a machine for capping and crimping cans, a crimping device mounted on a frame comprising a revoluble disk mounted in and flush with a table fixed in said frame, an arm pivoted in fixed bearings under said table, having a plate cushioned jn the end thereof, and adapted to raise and lower the said disk, a second disk mounted and rotated in fixed bearings above the said table, adapted to receive and revolve the can when raised on the said first disk, a third revoluble disk journaled in an arm pivoted in a fixed support on the said table, and means to automatically place the cans, one at a time, between said first and second disks, and revolve the same while the periphery of said third disk is applied against the flange of the can-head, with means to release and discharge the crimped can, substantially as ■ shown and described. (9) In a machine for capping and crimping cans, the combination, with a horizontally-arranged disk rotated in fixed bearings, and flush with a table having a smooth surface adapted to carry the cans in an upright position, of a stoppage across said smooth surface to stop the cans while said disk revolves under, a swinging arm or device adapted to move the can-bodies from said stoppage to and from a crimping device, so that one follows another in succession, and means to actuate the same, substantially as shown and described.”</p> <p>Upon the evidence adduced in the case, and in view of the prior decisions of this court, as contained in Norton v. Jensen, supra, and limited by the subsequent decision of Wheaton v. Norton, supra, the learned judge of the court below held that the Norton patent, No. 2(»7,014,- should be strictly construed, and, being so construed, that the invention and patent of Jensen to his second machine did not infringe the appellants’ invention and patent. It was also held that the Jensen machine did not infringe any of the other inventions and patents sued on in this case. The bill was therefore dismissed, and the present appeal is brought to review that decision.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio.</p> <p>This is an appeal from a judgment of the district court againsl the city of Cleveland for damages sustained by the steamer William Chisholm Uirough a collision between the steamer and a drawbridge constructed and managed by the city of Cleveland. The opinion of SAGE, District Judge, clearly states the case and his conclusions of fact and law, and is as follows:</p> <p>“The claim of the libel is for damages resulting from the collision of the steamer William Chisholm with the upper Seneca street drawbridge across the Cuyahoga river at Cleveland. The averments of the libel are that the steamer started from the Tipper Furnace Dock, above the bridge, about. 8:45 p. m., being in every respect staunch and strong, well manned, and equipped with the usual and necessary complement of officers and men, and that she was in tow of a harbor tug. As she approached the bridge she made a proper entrance into the starboard draw, which was the customary and usual draw for such vessels proceeding down the river. A craft was moored on the starboard or northerly side of the river, just below the bridge; and in consequence, it was necessary for the steamer to, and she did, take a course close to the center protection, which extends above and below the center pier on which the bridge swings, and should extend out from the sides of the pier, and be of sufficient strength to- ward oft a vessel without coming in contact with the bridge when properly swung. When the steamer was about halfway through the bridge and was proceeding slowly and in the usual and proper course and manner, it was noticed by those in charge that the lower end of the bridge had been permitted by those operating it to swing out, and a little beyond the protection of the navigable part of the draw. The attention of those operating the draw was called to this circumstance, but they failed to correct the position of the draw; and, although the sicamor was promptly backed, her forward fender on the port side; rubbed against the bridge between the center pier and the lower end, and pushed that end of the bridge away. Thereupon those operating the bridge permitted it to swing around so that the upper end was out and over the. side of the Chisholm, coming into collision with her cabin just abaft the boiler house; and although she was backing strong, and -was brought to a standstill as quickly as possible, the bridge tore out the cabin, carried away the cranes and boat davits, and the roof of the cabin, and otherwise broke and injured the vessel to such an extent that the cost of making the necessary and proper repairs amounted to the sum of $3-,368.05, and the vessel was necessarily detained by reason thereof for a period of eight days, during which time her charter value, and the loss to libelants by being deprived of her use, was the further sum of $511.08, making the total damage of $3,-879.05. Libelants aver that the Chisholm and her officers and crew were without fault, and, on information and belief, that the collision and damage were caused solely by the negligence and carelessness of the defendant, and of its officers, agents, and servants who were in charge of the bridge and operating the same. The specific faults charged are: First, the insufficient width of the protection; second, not having and keeping the bridge open in a proper manner for the Chisholm to pass; third, permitting the lower end of the bridge to swing and extend out over the channel; fourth, failing to prevent the upper end from swinging out so as to come into collision with the Chisholm’s cabin; and, fifth, that the attendants in charge of the bridge were inattentive and incompetent. The answer to the libel denies each and every averment of fault, and charges that the injuries resulted from the carelessness and negligence of the officers and crew of the Chisholm, and that the collision occurred solely through the fault of the Chisholm and her crew, and without any fault on the part of the respondent.</p> <p>“It is admitted that the. Cuyahoga is a navigable river. The-Chisholm is 264 feet in length. Her width of beam is 36 feet 9 inches. She was light, drawing 11 feet aft and 5Vs feet to 6 feet forward. She had been through the draw as often as once a week for several months or years prior to the collision, without damage to herself or to the bridge or protection. The distance from the outside of the central abutment of the bridge to the shore abutment on the starboard or northern side of the river is about 6S or 70 feet in the clear, and the width of the bridge is about 28 feet. The protection is composed of piles driven into the bed of the river, and extends 8 or 9 feet above the water, which -was there about 15 feet deep, and deeper in the middle of the channel. The testimony for the city is that when the draw was open the side of the bridge and the side of the protection were exactly even, to use the phrase of one witness; that the bridge both above and below the center was flush with the protection, to use the phrase of another witness; and, according to the superintendent, that the protection throughout its length extended six inches.further out than the bridge, so that, when the bridge was swung in line with the protection, its starboard side was six inches within the line of the protection. The superintendent, however, was recalled after having had the bridge opened, and seen how it stood with reference to the protection, and then admitted that, with the extreme upper end or corner of the bridge flush with the side of the protection, the lower end swung out over the channel and beyond the protection, and that, as a matter of fact, if the protection was put there for the purpose of warding off vessels and preventing contact with the bridge, it was not of a character suitable and efficient to accomplish that purpose; also, that if a man, in fining the bridge in the nighttime, with no guide excepting his eye, should get its upper end even two. or three feet inside the protection, and hold the bridge there, a vessel coming down close to the protection would naturally strike the lower part of the bridge. Two other witnesses, for the city (one an ex harbor master) testified that they did not consider that the protection was a safe protection for the bridge; that, to make it safe, it would be necessary to drive a' row of piles outside the present piles; and that it was not as well protected as other bridges in the river. Two other witnesses for the city testified that the protection extended 12 inches further out than the bridge, throughout its entire length. The present bridge captain testified that, if one end is just inside the protection, the other end is somewhat outside, and that, because of this peculiarity in the bridge and its protection, and because it is customary for the large vessels to go within 4 or 5 feet of the protection, and often closfe up to it, it is necessary, and it is the practice of the bridge tenders, when a vessel is descending in the nighttime, as the Chisholm was, to hold the upper end of the bridge in until the bow of the vessel is safely entered, past the end of the bridge, and then straighten up the bridge so that the lower end may be flush with the lower part of the protection. The testimony of this witness is corroborated by that of four witnesses examined on behalf of the libelants, and is accepted by the court as the true statement of facts.</p> <p>“The Chisholm came into the draw in a fine substantially parallel with the line of the protection, and near the protection. At the time of the collision the stern of the vessel was but a foot or two from the upper part of the protection. The claim on behalf of the city, that she came down about the middle of the channel, and sheered over so as to strike the protection at an angle near its lower end, and thereby threw the lower end of the "bridge in and over the pier, and the upper end out, although testilied to by two or more witnesses, is against the weight of the evidence. If such had been the position of the Chisholm when the protection and the bridge were struck, her stern must have been out to the center of the channel, at least, and the upper end of the bridge could not possibly have been thrown out so far as to have produced the collision. Several witnesses for the city testilied that the Chisholm sheered. The testimony to the contrary is so strong as to make the fact exceedingly doubtful. But, if she did, there are strong grounds for 1lie inference that it resulted from the displacement of water, and from the circumstance that the abutment on the shore of the northern side of the river forced the water against that side of the vessel, while on the other or port side there was much greater width, and opportunity for the water to Ifow away from the vessel. The weight of testimony is that the vessel did not sheer. The protection was inadequate. Tt was impossible to have the side of the bridge even flush with the protection for more than about half its length. If the side of the upper end of the bridge was exactly over the outer side of the protection, the side of the bridge, from a little below its center, projected over the channel; and, if the upper end of the bridge was 2 feet inside the protection, the lower end was several feet outside of it. The fact that a vessel was moored to the wharf on the northern side of the river, just below the draw, made it necessary that the Chisholm should come into the draw near the protection, because just below the bridge the river made a turn to the left, and, if the Chisholm had passed down along the middle of the channel, in swinging, her stern would have come into collision with that vessel. There is testimony tending to prove that the protection was marked with black paint, and the plank was cracked at the place where it is claimed the Chisholm sheered in and brought her bow in collision with the protection and with the lower end of the bridge; but that collision must have been by a. vessel with dark paint, whereas the Chisholm was painted a light color, and had no dark paint.</p> <p>“The decision of Judge Brown in Edgerton v. Mayor, etc., 27 Fed. 230. is in point. Tha t was a case of a collision with a bridge. The court held that the duty to take proper care of a bridge included the duty to make proper provision for the passage of vessels through the draw, and that the custo-diare of the bridge were bound to the use of ordinary diligence to avoid accidents to vessels going through in customary manner. The city was therefore responsible for the want of ordinary care on the part of its servants. In that case there were no guards beneath the draw to protect vessels approaching it. The court said that reasonable consideration for the safety of vessels going through such passages as there existed demanded that such guards should ho constructed corresponding with the open projection, and that the duty to take proper care of a bridge included the duty to make proper provision for the passage of vessels through the draw. In that case there was a strong tide. In this case it is claimed by the city that there is a strong tendency to sheer, caused probably, as we have seen, by the displacement of water in the narrow channel. T'pon the whole case, I am satisfied that there was no fault in the management or navigation of the Chisholm, that the protection was inadequate, and that the draw was not operated with proper care. Tire decree will be for the libelants, with a reference to ascertain the amount of the damage.”</p>

This case comes up on appeal from tlie district court of the United States for the Eastern district of North Carolina, sitting in admiralty. The libel is filed on behalf of Edward Pearsall, engineer, and John S. Brogan, fireman, of tlie steamtug Jacob Brandow, and J. N. St. George, cook of tlie steamtug Blanche, and Ephraim Swain, fireman of the steamtug Alexander Jones.

<p>This was a libel in rem bj Charles J. Tice, owner of the barge Ada No. 6, against the steamtugs Zouave and Sea King and the barges Chalmette and J. F. Merry to recover damages resulting from a collision in the East river at Hell Gate.</p> <p>The following is a copy of the map referred to in the opinion:</p> <p> </p>

<p>J. Jurisdiction of Federal Courts — Suits for Infringement of Copyrights — Residence or Citizenship of Defendants.</p> <p>The act of January 6, 1897, amendatory of Rev. St. § 4906, relating to suits for the infringement of copyrights for dramatic or musical compositions, which authorizes the service and enforcement of injunctions granted in such suits anywhere in the United States, and confers jurisdiction on circuit courts of circuits other than that in which the suit is brought to entertain motions for tbe dissolution of such injunctions, does not affect the jurisdiction of a court to entertain the suit or grant an injunction with reference to the question of the residence or citizenship of the defendants.</p> <p>3. Same.</p> <p>The provision of the law of 1888 requiring suits to be brought in the district whereof the defendant is an inhabitant does not apply to suits arising under the patent or copyright laws of the United States, of which the circuit courts have exclusive jurisdiction; and a suit, under Rev. St. § 4906, for the infringement of a copyright for a dramatic or musical composition, may be brought in any district where the defendant can be found and served.</p>

This was a suit in equity by Elmer E. Pope and another against William (t. Hoopes, Jr., and others for the reformation of a written eon-iraet, and its specific enforcement against the defendants as reformed. Plaintiffs appeal from a decree dismissing the bill.

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>This was a bill filed by the appellee, as a judgment creditor of the appellant, the Central Appalachian Company, Limited, to set aside certain alleged fraudulent conveyances of all of its property to the appellant, the International Dp.velopinent Company, and a mortgage thereof by the latter corporation to the appellant, the Corporation Trust Company, ostensibly for the purpose of securing an issue of bonds by the said mortgagor company aggregating $1,500,000. The judgment debtor, as well as its grantee in the conveyance assailed, filed answers and cross bills substantially identical. The answers admitted that the conveyance by the Appalachian. Company to the International Company was- not upon any valuable consideration, the purpose being a mere reorganization of the former company, and that the latter, as successor to the former, stood in the shoes of the grantor, and was liable for all of its just debts and liabilities. In respect to the mortgage to the Corporation Trust Company, these answers averred that it had been made with no fraudulent purpose, and only with the object of raising means to discharge the liabilities of the said Appalachian Company, and to carry out the business purposes of the reorganized corporation. The Corporation Trust Company was a corporation of the state of New Jersey, and had no agency within Kentucky. It was made a defendant under an order of the court, directing service upon it in the state of New Jersey. This was done. It neglected to plead within the time it was required to defend, whereupon judgment by default was entered against it. The principal questions to be determined upon this appeal arise upon the cross bills filed by the two answering corporations. These were filed for the purpose of setting off against the judgment in favor of the complainant, Buchanan, a demand for $60,000, claimed as liquidated damages arising out of a breach of the covenants in a certain conveyance of chattels and real estate theretofore made by the Southern Land improvement Company to one ID. H. Patterson, for the use aud benefit of the Central Appalachian Company, Limited. The same cross demand was set up in the answers as a defense to any relief upon the judgment. The cross defendant, Buchanan, excepted to so much of the answers as set out this cross demand as scandalous, and also demurred to the cross bills for want of equity. The court below sustained both the demurrer and the exception. Thereupon amended cross bills were tendered, stating with somewhat more detail the facts upon which the set-oil ivas assorted. The learned trial judge did not regard the difficulties in the way of the assertion of this claim as an equitable set-off as having been removed by the proposed amendments, and therefore declined to allow them to be filed. He also denied a motion made by tlie Corporation Trust Company to allow it to file an answer, and directed a decree as upon bill and answer to be entered against all the defendants, as piayed by the bill. All of the defendants have appealed.</p> <p>The averments of the cross bill, as amended and tendered, were substantially as follows: (1) That Buchanan had been appointed receiver, January 3, 1894, by the circuit court of the United States for the district of Kentucky, under a bill filed in said court by Martha G. Memweafher and others, against the said Southern Land Improvement Company; that, by the order appointing him, he was directed to take possession of all the property of the said company, and to collect all of its debts, and for this purpose to bring all necessary suits in his own name or that of the corporation. (2) That the Judgment sought to he en forced in this case was upon a demand for rents which accrued to the said' Southern Land Improvement Company under a lease of certain lands to the Central Appalachian Company, said lease hearing date October 13,-1892; that the demand so sued upon “was a demand which accrued to the Southern Land Improvement Company, and to no one else, and the said company was joined with the receiver as a necessary co-plaintiff in the action at law brought on said demand”; that said receiver “proceeded to collect said claim, only because of the fact that he was instructed by the court to collect all demands which were due or might become due to said company.” (3) It is then averred that, upon the property thus leased, the said lessor “had certain valuable colliery properties, such as coke ovens and various appliances necessary to a colliery plant, and including the commissary house with the ground upon which it was situated.” “These colliery properties,” it is averred, “were indispensable to the use of certain coal mines, which were then open and in operation by the Southern Land & Improvement Company.” Cross complainant then avers that it made a proposition through “its agent and general manager, E. H. Patterson,” to buy these colliery properties, provided it could malee a satisfactory lease of the mining privileges of said company upon its lands, and that terms satisfactory were agreed upon, which resulted in the lease of October 13, 1892, mentioned above, and in the purchase and sale of said colliery properties situated upon the leased lands. The conveyance of the purchased property was made at the same time, and bears the date of the lease, and it is averred that both “were indispensable parts of the same transaction.” The conveyance aforesaid was made to E. H. Patterson, it being averred that it was so made by direction of Patterson, who conducted the transaction for the Central Appalachian Company; that $25,000 was paid in cash, and subsequently $35,000 more. It is averred that the Southern Land & Improvement Company knew that Patterson was buying the property for the Appalachian Company, and that its money was used in paying for it. It is averred that the grantor made the title to Patteison, binding him to convey same to the Appalachian Company, when the latter should acquire title to a certain amount of lands, having no interest in the condition, which was inserted for Patterson's purposes, and to better enable him to compel his principal to receive the titles to certain lands which he was engaged in selling or procuring for it. It is averred .that this conveyance was therefore made to said Patterson in trust for the real and known purchaser, and that the seller intended the warranty and covenants of said conveyance “to inure to the benefit of the Central Appalachian Company.”</p> <p>This conveyance is made an exhibit to the cross bill, and the property sold is thus described: “(1) The colliery plant of coke ovens, consisting of one hundred in number, situate upon lands this day leased by the improvement company aforesaid to the Central Appalachian Company, Limited, of Belgium, lying between the junction of the right and left forks of Straight creek, and the present terminus of the Pineville, West Virginia & Tennessee Itail-road. (2) All tiae miners’ and operators’ houses, being thirty-nine in number, and all other buildings now erected and standing on said leased lands and on either side of the right fork of Straight creek, including carpenter shop, butcher shop, pump house, power house, blacksmith shop, tipple, stables, and coke-oven stables. (3) All the tools and implements, all the tramway cars, tracks’ scales, mile scales, machinery, mine railway tracks, and all the property of the improvement company, the first party hereto, now in place and being used by the improvement company in the operation of the mines and coke ovens now conducted by it, excepting only the teams, harness, wagons, and cars of the improvement company. (4) The building known as the ‘Commissary Building,’ together with the land upon which it stands, being 'a lot of seventy-five (75) feet front by one hundred (100) feet deep, it being understood that the land upon which the other structure stands is not sold or conveyed.” This instrument contains the following condition, namely: “Said property is conveyed on condition that said Patterson will convey same, free of incumbrance or lien by him, to the Central Appalachian Company, Limited, of Belgium, whenever that company shall have received title to seventy-two thousand (72,000) acres of land in Southeastern Kentucky, un-incumbered, and shall hare placed the deed therefor of record, or lodged same for record,” — and concludes with a warranty and covenant in these words: “To have and to hold the said property, together with the'rights and thing;, and estate appurtenant thereto herein conveyed to him, the said second party, his heirs and assigns, forever, the said first party hereto warranting ¡he tille to the said property by covenant of general warranty; and said first party furthermore covenants that it is seised of a good and lawful and fee-simple tide to said property.”</p> <p>Bocembor 7, 1893, Patterson conveyed all this property to the said Central Appalachian Company for the nominal consideration of one dollar. The cross hills then aver that, when this conveyance and warranty were so made to said Patterson for the use and benefit of the cross complainant, said property was subject to a mortgage for ¡8300,000, made by said Southern Land & Improvement Company to the Louisville Trust Company, as trustee; that subsequently a decree foreclosing said mortgage for the satisfaction and payment of said debt was obtained in the said circuit court, and on August 11, 3890, said decree was executed by a sale of all the mortgaged property, including that so sold to cross complainant, and said properly was purchased by thi' National Iron & Coal Company; that this sale was confirmed and deed made to the purchaser October 13, 1896; and that cross complainant has thus lost the properly, real as well as personal, and has (hereby been damaged to tlie full extent of the purchase price of $00,000, with interest. The insolvency of the said Southern Land & Improvement Company is also averred. The prayer is that the amount due upon the judgment in favor of Buchanan, receiver, be credited upon the larger amount due to cross complainant, and that the balance be satisfied out of the funds in the receiver’s hands, etc.</p>

These were actions in ejectment by the Manhattan Life Insurance Company against .Edward O’Neil. There were judgments for defendant, and plaintiff brings error.

This was an action by William E. Ball against Anna M. Warrington, a citizen of Pennsylvania, to enforce an alleged liability of defendant as a stockholder in a Kansas corporation. The circuit court held the affidavit of defense insufficient, and rendered judgment for plaintiff, from which defendant brings error.

<p>1. Carriers op Goods — Contract op Carriage — Liability op Connecting Lines.</p> <p>A carrier receiving goods billed for carriage beyond its own line is presumptively bound only to carry such goods to the end of its own line on their route, and to safely deliver them to the connecting line, to be forwarded; and it is not liable for loss or damage occurring after such delivery, except by special contract.</p> <p>2. Same — Const; tiotion op Birr op Lading.</p> <p>A bill of lading for goods to be carried over several connecting lines, by which the initial carrier undertakes, for itself and the connecting carriers named, “severally and not jointly,” that each carrier on the line-shall safely carry and deliver the goods received to the next succeeding carrier, until they reach their destination, expressly stipulating that lhe liability of each as to the goods destined beyond its own line shall terminate on their delivery to the next succeeding carrier, and that in ease of loss or damage to the goods the carrier in whose actual custody they are at the time of such loss or damage shall alone be responsible therefor, although it names a through rate, constitutes a several contract between the owner of the goods and each carrier accepting them thereunder in the course of shipment, and renders any carrier in whose custody they are at the time of loss or damage; liable directly to such owner therefor, as a carrier, and not merely for negligence as agent of the initial carrier.</p> <p>8. Same — RAiLKOADK---DKKKGTrvE Cars.</p> <p>It is the duty of a railroad to furnish fit and suitable cars for the carriage ot goods, and it cannot avoid responsibility for loss or damage caused by defective ears by devolving upon the shipper the duty of inspecting or selecting the ears in which his goods are to be shipped.</p> <p>4. Same — Ownership op Cars Used.</p> <p>The responsibility of a railroad carrier is the same whether the goods are carried in its own cars or those of another.</p>

This cause comes on to be heard upon a petition by the plaintiff in error of the tenor following: “Your petitioner, plaintiff in error in the above cause, respectfully shows that this suit… Held: upon the hearing of the cause, that the suit abated with his death. The case was a good one upon the merits, as petitioner verily believes, and the only question for trial in this court is whether there is error in the judgment of the trial judge in his holding referred to above.

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

<p>In Bankruptcy. On motion to restrain an assignee for benefit of creditors from disposing of tlie bankrupt’s estate.</p>

<p>In Bankruptcy. On motion to dissolve a restraining order preventing the sheriff from delivering certain replevied goods.</p>

<p>This is a suit in equity by tbe Newton Manufacturing Company against Daniel C. Wilgus for infringement of a patent.</p>

Two separate actions are brought for infringement of the same patents, both submitted by stipulation upon the same testimony.

This was a suit in equity by Allen GL jST. Vermilya against the Pennsylvania Steel Company and its receivers for infringement of a patent. There was a decree for complainant (87 Fed. 481), from which defendants appeal.

<p>1. Patents — Suit for Infringement — Estoppel by Plea of License.</p> <p>A defendant is not estopped from denying the validity of the patent sued on by a plea of license, where such plea is withdrawn, before the hearing, by leave of court, and an answer filed in which a license is not pleaded.</p> <p>2. Same — Invention—Public History of the Art.</p> <p>For the purpose of determining the question of invention, a patentee must be presumed to have had knowledge, at the time of the claimed invention, of everything which was contained in printed publications or in the public history of the art.</p> <p>3. Same — Transferring- Appliance to Another Similar Art.</p> <p>The art of painting on canvas o-r paper is so nearly allied to that of painting or decorating clay ware that no patentable invention is involved in transferring the use of an atomizer for applying pigments from one art to the other.</p> <p>4. Same — Improvement in Art of Decorating Pottery Ware.</p> <p>The Pry patent, No. 309,020, for an improvement in the art of decorating pottery ware, is void for want of patentable invention, and for anticipation, particularly by the “air brush” or atomizer for applying pigments to all surfaces, patented by Peeler and improved by Walkup.</p>

<p>This is a suit in equity by J. Berre King and George B. King against R. Napier Anderson and Enos A. Bronson for infringement of a patent.</p>

<p>1. Maritime Liens — State Statute — Work or Materials Furnished Charterer.</p> <p>The effect of the statute of Washington (2 Ballinger’s Ann. Codes & St. § 5953; 1 Hill’s Code, § 1678) which makes every contractor, subcontractor, builder, or person having charge in whole or in part of the construction, alteration, repair, or equipment of a vessel an agent of the owner for the purpose of contracting debts on the credit of the vessel, is to relieve persons who extend credit for work done or material furnished in that state for the alteration, repair, or equipment of a vessel, at the instance of a charterer having possession, from the necessity of malting inquiry as to the authority given by the charter party; and, unless they have actual knowledge of its provisions, their right to hold the vessel liable is not affected thereby.</p> <p>2. Same — Validity of State' Statute — Vessels Engaged in Interstate or Foreign Commerce.</p> <p>Local statutes subjecting vessels to liens for debts contracted in equipping and fitting them for service are not regarded as amendments of the general maritime law, and, in the absence of legislation by congress establishing a uniform rule, are upheld as applied to vessels engaged in interstate or foreign commerce, and owned in other states, as being in aid of commerce, by enabling such vessels to obtain credit for necessaries when away from their home port.</p>

This was a libel by Rilatt Bros, against the tugs E. Y. MeCaulley and Ivanhoe for the loss of a tow. The district court dismissed the libel (84 Fed. 500), and the libelants appeal.

'nils was a suit in ejectment to recover the possession of the S. E. % of the 8. E. ti of section 33, and an undivided one-half interest in the 8. W. % of the 8. AV. % of section 34, township 50, range 32, situated in Jackson county, in the state of Missouri.

Bill in equity to enjoin the defendants from enforcing, or attempting to enforce, a certain order of the board of supervisors of Stanislaus county fixing the rates which the complainant should charge for water distributed by it, and to declare said order null and void. Demurrer for want of jurisdiction and of equity. Demurrer overruled.

<p>Jurisdiction of Federal Courts — Suits by United States.</p> <p>Under tbe judiciary acts of 1SS7-88, tbe federal courts have jurisdiction of a civil action at law in wbicb tbe United States is plaintiff, without regard to tbe amount in dispute.</p>

The parties plaintiff and defendant in the above-entitled cases, by written stipulations duly filed, waived a jury trial, and submitted the evidence to the court, from which the court finds the facts to be as follows (it being agreed that the cases should be consolidated for trial purposes): (1) The plaintiff the Keene Five-Cent Savings Bank was when this action was brought, and is now, a corporation created under the laws of the state of New Hampshire; and the defendant…

<p>Hearing on objections made to testimony offered before the examiner, and referred (o the court.</p>

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

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

• This was a creditors’ bill, which was exhibited by George A. Allen and others, the appellees, composing the firm of Paris, Allen & Go., against the National Bank of Commerce in Denver, the appellant, and against the A. K. Clarke Mercantile Company, hereafter termed the “Mercantile Company.’’ The bill was filed by Paris, Allen & Co., as judgment creditors of the Mercantile Company, for their own benefit, and for the benefit of such other judgment creditors of the Mercantile…

These were suits in equity for the foreclosure of a purchase-money mortgage, which were consolidated, and in which cross bills were filed for the canee.Mion of such mortgage.

<p>1. Municipal Corporation's — Action on County Warrants— Burden of Proof.</p> <p>In an action on county warrants, where the only defense is that the county had exceeded the constitutional limit of indebtedness, the introduction of the warrants, properly executed, and proof of their ownership by the plaintiff, make a prima facie case, and place on the defendant county the burden of proving by competent evidence the facts necessary to show that, when the indebtedness represented by the warrants was created, the county was incapacitated by the limitation from incurring the same.</p> <p>2. Samp. — Constitutional Limit of Indebtedness.</p> <p>In determining the indebtedness of a county of Colorado with reference to the limitation placed on such indebtedness by the state constitution, debts created prior to August 1, 1870, when the state was admitted into the Union, and the constitution became effective, are not to he considered.</p> <p>3. Same — Evidence—Statements of County Finances.</p> <p>Gen. St. 1883, p. 2S0, § 150, requires boards of county commissioners to make out semiannual statements at their regular sessions in January and July in each year, which statements shall show the indebtedness of the county in detail, and contain a detailed account of the receipts and expenditures for the preceding six months, and shall be published or jiosted as therein prescribed, and be entered of record by the clerk. Held, that statements designated “quarterly reports,” which did not purport to have been made out through any action of the county board, nor conform to the requirements of the statute in giving details of receipts or expenditures, and which were not shown to have been published or posted, and were merely certified by the county clerk as being correct statements of the expenditures of the county as appeared from the.books of his office, were not receivable in evidence, as the statements required to be made by the statute, to establish the indebtedness of the county at the times of their dates.</p> <p>4 Same — Statements as Official Records.</p> <p>Nor were such statements admissible, under the general rules of evidence, as official records to prove that the indebtedness of the county was the amount therein recited, being merely the conclusions of the dork drawn from whatever books or papers he may have examined in reaching such result, and the books and records of the office being themselves the primary evidence of whatever facts they show.</p> <p>5. Same — Evidence of Date of Indebtedness — Date of Warrant or Claim.-</p> <p>Neither the date of a .county warrant nor of the claim on which it was issued is evidence of the date of the creation of the indebtedness.</p> <p>6. Same — Recitals in Claim.</p> <p>A recital in a claim filed against a county of the date when the services were rendered on account of which the claim is made is merely evidence of such date to go to the jury, and a court is not justified in basing its charge on the assumption that such recital is conclusive.</p> <p>7. Same — County Records as Evidence.</p> <p>Entries in the records of a county, made by the clerk in due course of business, either under the express provisions of a statute or in the usual course of official duty, are admissible in evidence in behalf of the county, and it is no objection to the admissibility of such an entry, offered for the purpose of showing the date when an indebtedness represented by a warrant sued on was created, that it was in the form of a tabulated statement of the expenses of an election held on a certain date, identifying by number, date, and name of payee the warrant in suit as one issued in payment for services rendered at such election.</p> <p>8. Same — Claim Filed against County as Evidence,</p> <p>Where a county warrant declared on and introduced in evidence shows on its face that it was issued on account of a claim bearing a certain number, a certified copy of such claim from the county records is admissible on hehalf of the county as evidence of the date of the rendition of the services for which the claim was filed.</p> <p>9. Same — Trtal—Tabulating Evidence in Aid of Jury.</p> <p>In an action against a county on a large number of warrants of different dates, tried to a jury, and contested on the ground that the indebtedness represented by such warrants was created when the county was indebted beyond the constitutional limit, which involves the ascertainment of the date of the creation of each item of such indebtedness, and of the indebtedness of the county on each of such dates, it is proper for the court, in aid of the jury, to admit the testimony of a , competent person, who has prepared a tabulated statement in writing, summarizing the material facts shown by the hooks and records, which are themselves in evidence.</p>

<p>Receivers — Effect of Appointment — Foreclosure of Mortgage.</p> <p>Tbe appointment of a receiver in a foreclosure suit does not constitute a taking of possession of the property by the mortgagee, as against other creditors, nor affect priorities, but the receiver holds possession for all parties' interested.</p>

<p>This is a suit by James C. E. D’Esterre against the city of Brooklyn and George W. Palmer, as comptroller of the city of Brooklyn, to establish the validity and compel the registration of bonds issued by the town of Gravesend before its annexation to the city of Brooklyn.</p>

<p>1. JUDGMENT— OoNCUtTSIVENESS— Mortgagees NOT PARTIES.</p> <p>A judgment against a railroad company is not binding on its bondholders or mortgage trustees who wove not parties thereto, and they may relitigato the plaintiff's right to recover, as well as the amount of recovery, when it is sought to establish such judgment as a lien superior to the mortgage.</p> <p>3. Easements — Effect op Vacation op Highway on Private Right op Way.</p> <p>Tile action of public authorities in discontinuing a highway cannot affect a private right- of way over the land secured to the owner of adjoining property by contract with the owner of the fee..</p> <p>3. Railroads — 'Destruction op Means op Access to Property — Lien for Damages.</p> <p>A direct permanent injury to, or destruction of, a private right of way giving access to property by the construction of a railroad over the same, constitutes a taking of such property for public use to the extent of the actual damage sustained and entitles the owner to a lien for such damage on the proceeds of the railroad when sold on foreclosure superior to the lien of the mortgage, the right to a lien in such case being the same as though the railroad had acquired its right of way as to such property by contract or condemnation.</p>

Tilia ia a suit in equity by the American Steel & Wire Company against the Wire Drawers’ & Die Makers’ Unions Nos. 1 and 3, Walter Gillette, and others. Heard on an application to vacate service, on demurrer to the bill, and on application to amend the bill.

<p>1. INJUNCTION — Right to Use of Streets — Obstructing Access to Premises.</p> <p>The owner of a house, whether a dwelling, store, or mill, has a distinct right of property in the streets and highways adjacent and used as approaches to it; and a use of such streets or highways by others for the purpose of forcibly preventing- access to such house is an unlawful interference with such right, and constitutes a private nuisance, which may be abated by injunction.</p> <p>2. Same — Suit by Corporation — Defense of Unlawful Trust.</p> <p>A claim that a corporation is a trust and illegal cannot be made .collaterally as a defense to a suit by the corporation to enforce a private right .by injunction.</p> <p>8. Same — Strikes—Interference with Right of Property and Contract.</p> <p>Defendants, who had formerly been employes of plaintiff, in- its mills, as wire drawers, but who had gone out on a strike, for more than two months had patrolled the streets adjacent to plaintiff’s works both day and night, keeping within call at all times a large body of men, for the claimed purpose of dissuading other workmen from taking employment in their places. The evidence showed but a single instance during that time in which defendants stood aside and permitted a wire drawer to enter the mill, and that instance was disputed, although in a number of instances workmen attempted unsuccessfully to enter, and several conflicts occurred between them and the strikers. Held, that such action was an unlawful interference by defendants with plaintiff’s rights of property _and freedom to contract, which entitled plaintiff to relief by injunction.</p> <p>4. Same — Unlawful Force and Violence.</p> <p>It is not necessary that actual batteries or assaults shall be committed, to constitute unlawful force or violence which will afford ground for relief by injunction; but a display of force sufficient to deter others from attempting to exercise a lawful right, and intended to accomplish that purpose, is sufficient.</p>

In this case an order of sale of the property of the Brewer Pottery Company was issued, and the property, when first offered, was hid off by Albert Brewer, one of the defendants, for the sum of $49,000. A deposit of $5,000 was made to secure the sale.

<p>1. Contract — Evidence to Establish — Estoppel by Acquiescence.</p> <p>Where plaintiff, who was making advances to defendant, advised him by letters and by statements, from time to time, of the contract under which such advances were made, as he understood it, the defendant could not remain silent, and obtain future advances, without dissenting from such understanding, and afterwards deny the existence of the contract.</p> <p>2. Account Stated — Implied Assent of Party — Obligation to Pay Balance.</p> <p>A failure to object for two years to a statement of account rendered by a factor to a customer, which included, in connection with other commissions and interest on advances made, a charge for commissions on cotton not shipped to the factor, but on which he clainjed commissions under a contract between the parties, renders the account a stated one; and, in an action thereon, the question of the right to charge such commissions is not in issue, the contract implied being to pay the balance shown to be due.</p>

This was an action in ejectment by John C. Martin against Charles A. Hughes and others. There was a judgment for defendants, from which the plaintiff brings error.

This bill was filed by a stockholder to restrain his corporation, its officers and directors, from selling the company’s lands, and also from selling or otherwise disposing of timber standing upon its lands, unless previously authorized thereto by a vote of throe-fifths of the capital stock of said company. The corporation sought to be enjoined is a mining company organized under the provisions of chapter 123, How. Ann. St. Mich.

<p>1. BUILDING CONTRACTS — -PROVISION REQUIRING DECISION OF ARCHITECT.</p> <p>A provision in a building contract requiring the submission of all questions thereunder to the architects, if valid, does not preclude a suit by one of the parties where it is sho-vvn that the architects refused to act when they should have done so.</p> <p>2. Same — Legality—Ousting Jurisdiction of Courts.</p> <p>It is not competent for parties to a building contract to stipulate that any dispute arising between them, including' questions not only as to the value or character of the work done, but also as to their legal rights under the contract, shall be submitted to the architects, whose decision shall be final; and such a stipulation will not oust the jurisdiction of the courts.</p>

This was an action by Elizabeth C. McKown, executrix of James C. McKown, deceased, for the use of Elizabeth C. McKown, against the Manhattan Life Insurance Company. From a judgment for plaintiff, defendant brings error.

<p>1. LimitattoN op Actions — Commencement op Action — Statute op Oregon.</p> <p>Hie liability of directors oí! a bn.uk, under Hill’s Aim. Laws Or. § 3231, wliieli makes such directors who vote for the declaration of a dividend when the bank is insolvent “jointly and severally liable for the debts of the corporation then existing or incurred while they remain in office,” is penal in its nature, and the directors are not, as to such liability, “joint contractors or united in interest,” within the meaning of section 14 of such Laws, providing that an action shall be deemed commenced as io each defendant when the complaint is filed and the summons served on him or on a co-defendant, who is a joint contractor or united in interest with him; hence an action to enforce such liability is not commenced as to a particular defendant until the service of summons on him.</p> <p>2. Same — Demurrer—Facts Appearing on Face op Complaint.</p> <p>Under Hill’s Ann. Laws Or. § 67, which authorizes a demurrer -when it appears on the face of the complaint that the action lias not been commenced within the time limiied by the Code, it being further provided by section 14 that the action shall be deemed commenced when the complaint Is filed and the summons served, the complaint and writ must be read together, and what appears from the two> will be deemed, for the purposes of such demurrer, to appear on the face of the complaint.</p>

<p>This is a hearing on a writ of habeas corpus.</p>

<p>1. Bankruptcy — Effect of Bankruptcy Act on State Insolvency Laws.</p> <p>Tlie enariment by congress of a. national bankruptcy act suspends the operation of state insolvency law's from tlie time of such enactment, subject only to such limitations as may be prescribed in the bankruptcy act.</p> <p>3. Same — Time of Taking Effect.</p> <p>In regard to its suspensive effect on state insolvency laws, the national bankruptcy act of 1898, providing that, “this act shall go Into full force and effect upon its passage: provided, however, that no petition for voluntary bankruptcy shall be filed within one month of tlie passage thereof, and no petition for involuntary bankruptcy shall lie filed within four months of the passage thereof,” and that “proceedings commenced under state insolvency laws before the passage of this act shall not be affected by it,” took effect, as to involuntary proceedings, from the date of its approval, July 1, 1898, and not from November 1, 1898, when petitions in sin-li cases might first be tiled.</p> <p>8. ¡Same.</p> <p>The postponement of the right to file petitions in involuntary cases until four months after the passage of the bankruptcy act did not authorize state courts, in the interval, to take jurisdiction of proceedings begun under state insolvency laws, being a mere regulation of procedure, and not a denial or impairment of tlie rights of suitors.</p> <p>4. Same — Jurisdiction of Corners of Bankruptcy.</p> <p>A district court of the United States, sitting in bankruptcy, bas jurisdiction to entertain a petition in involuntary proceedings against a corporation amenable io the law', and to appoint a temporary receiver of its effects, notwithstanding the fact that proceedings had been begun against the same corporation in a state court, under a statute of (he state, after the passage' of the national bankruptcy law, but before tlie date when involuntary petitions under it could lie filed, founded on alleged insolvency and fraud of the defendant, and seeking to hike possession of its assets for the same purposes involved in the bankruptcy proceedings, and including an application for the appointment of a receiver.</p>

<p>1. Internal Revenue — Construction of Amendments to Revised Statutes.</p> <p>When a chapter of the Revised Statutes relates to cigars, and the leading section defines cigars to include cigarettes, “within the meaning of this chapter,” a subsequent change in the sections of the chapter by-striking out the original sections of the Revised Statutes, and substituting new sections in place thereof, demands that the amendatory law be treated as-still governed by the statutory definition in the leading section of the Revised Statutes, and criminal sections substituted for sections in the original chapter in the Revised Statutes, and in terms applicable to cigars, apply to cigarettes.</p> <p>3.Revised Statutes — Amendments.</p> <p>A statute amending a section of the Revised Statutes by striking out the same, and substituting other amended provisions therefor, becomes part of the Revised Statutes.</p> <p>3. Same.</p> <p>The case distinguished from decisions under the pension laws, which, by section 5485, Rev. St., made it criminal to charge a greater compensation than was authorized in the title pertaining to pensions (section 4785), in which it was held that a statute enacted subsequent to the Revised Statutes, and repealing section 4785, and fixing- different compensation, rendered the criminal provision (section 5485) unenforceable, because no compensation was provided any longer in the title pertaining to pensions.</p> <p>4. Internal Revenue — Construction of Statutes.</p> <p>The statutory definition of cigars, making them include cigarettes (Rev. St. § 3387) when the term is used in a certain chapter, is not applicable to provisions of the same chapter, which, on their face, show that the term “cigars” is used in contradistinction to “cigarettes,” and exclusive thereof, like Id. § 3394.</p> <p>5. Construction of Statutes — Provisos.</p> <p>The construction of provisos considered. A particular provision held to be a proviso, and not an independent enactment, although the occasional use of tlie term “provided,” to introduce provisions which are-independent enactments, and not provisos, is recognized.</p> <p>6. Same.</p> <p>Statutes should be construed so as to harmonize and give effect to all their provisions, so that, when a body of law is amended, the whole system must be regarded in each alteration, and no disturbance allowed of existing legislative rules of general application beyond the clear intention of congress. Revenue statutes are, moreover, to be construed liberally.</p> <p>7. Criminal Law — Complaints on Information and Belief.</p> <p>Complaints in criminal cases must be upon such oath as is required by the United States constitution and Rev. St. § 1014; and a complaint purporting- to be on information and belief, in which no grounds. and sources of information are stated, lmt only certain grounds of belief not appearing- to be based on deponent’s personal knowledge, is insufficient, and does nor, confer .jurisdiction to issue a warrant of arrest.</p> <p>8. Same — Issuance op Warrants.</p> <p>Quaere: Is jurisdiction conferred to issue a warrant in a case in which the warrant is issued upon the sworn complaint of a private citizen, which is not approved in writing by a United States district attorney, as required by Act May 28, 1890 (2 Supp. Rev. St. p. 480), even when the complaint is presented to the commissioner by an assistant United States district attorney?</p> <p>9. Same.</p> <p>Defendant was charged in criminal proceedings before United States Commissioner Shields with violations of sections 3392 a.nd 3397, as amended, of the Revised Statutes of the United States (1 Supp. Rev. St. pp. 241, 804). because of dealings with cigarettes not packed, etc., in the manner authorized by the statutes. Counsel for the prisoner moved that the commissioner dismiss the proceedings for want of jurisdiction on the following grounds: (1) That the facts alleged in the complaint do not const!fute a crime under any law of the United States, because neither of the statutes mentioned in said complaint, nor the statutes amendatory thereof, in their features apply to cigarettes; (2) because the warrant has not been based on ¡he proof under oath required by the constitution and Rev. St. § 1014; (3) because the complaint is by one other than a government officer upon his information and belief, and was not approved in writing, before its issuance, by a United States district attorney. The material portions of the -complaint a,re set out in, the opinion. The complaint purports to be on information and belief by one Kassel, a private individual, and the grounds of his information and belief given are expressed only in the following passage: “Deponent’s belief is based upon falsely made cigarettes, purporting to be his manufacture, which are not his manufacture, and which bore deponent’s stamps, whicli cigarettes liad been sold by the defendant.” The commissioner, by consent of the United States attorney and the attorney for the prisoner, certified the questions to the court for determination. The court, in the following opinion, decides that the motion to dismiss for want of jurisdiction should be granted because the second point is relevant; the first point is decided in favor of the government; and the third point is not decided, because the decision on the second point renders it unnecessary.</p> <p>(Syllabus by the Court.)</p>

This is a suit in equity by the Richmond Mica Company against Gustav Re Clyne and others for infringement of a patent and the specific enforcement of a contract. Heard on motion for preliminary injunction.

<p>Patents — Cork Sleeve for Penholders.</p> <p>The Tower patent, No. 378,223, for a penholder with a cork sleeve for ease of the fingers, held valid, and infringed.</p>

These are two suits in equity by the Ball & Socket Fastener Company against Julius Cohn and others, each for the infringement of a patent, and for an accounting, and the.recovery of damages for unfair competition in trade. Heard on demurrers to the bills.

<p>1. Patents — Construction of Claims — Amendment of Application.</p> <p>Where an applicant for a patent amends and limits his claims and specification to meet objections of the patent office, whether such objections were well founded or not, he is not entitled to the benefit of the original claims under the patent issued, nor to a construction making the amended claims as broad as those abandoned.</p> <p>2. Same — Limitation of Claim by Specification.</p> <p>The words “substantially as set forth,” at the end of a claim, refer to the specification, and make it an essential part of the claim; and, where the language of the claim is general, it is limited by the more specific description contained in the specification.</p> <p>3. Same — Trucks for Street Cars.</p> <p>The Brill patent, No. 432,115, for a street-car truck, as to claims 1, 4, and 6, must be limited to a combination of parts, an. essential element of which is that the housings of the axle-boxes shall extend to or below the bottom of such axle-boxes. Claim 3, which described the truck frame, was anticipated by the frame shown in the Woodbury patent, No. 48,008, for a frame for a steam street car.</p>

This was a libel in admiralty for demurrage on account of delay of the respondents, as consignees, in discharging a cargo.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>On motion to dismiss appeal.</p>

The Erie Shooting Club, the complainant below, is a shooting club incorporated under the law of Michigan. The object of the incorporation was to secure, hold, and protect suitable territory for hunting and fishing for the exclusive use of its members. In pursuance of this purpose, it has acquired by lease between three and four thousand acres of land, with the exclusive right to hunt and shoot thereon the wild game and fowl which might frequent said property.

Oh Motion for Injunction Pendente Lite. These are 10 suits in equity, as follows: Metropolitan Trust Company of the City of New York, trustee, against the Houston & Texas Central Railroad Company and others; the Meri*autile Trust Company, trustee, respectively against the St. Louis Southwestern Railway Company of Texas and others, the Tyler Southeastern Railway Company of Texas and others, the Texas & Pacific Railway Company and others, and the International & Great Northern…

<p>Appeal from tbe Circuit Court of tbe United States for tbe Western District of Pennsylvania.</p> <p>This was a suit in equity.</p>

For opinion of circuit court,- see 86 Fed. 30. Suit in equity to quiet title to certain lands, and to enjoin the city of Oakland (which claims that the land in question has been dedicated as a public street known as “Fallon Street”) from interfering with the same.

<p>Hearing on motion, by agreement of parties treated as a demurrer to the petition.</p>

<p>1. Patents — Invention—Pkaciticai. Success ov Device.</p> <p>In a doubtful case, the fact that the patented device has gone into general use, and superseded other devices, may be sufficient to turn the scale, and support the presumption of patentability arising- from the grant of the patent.</p> <p>2. Same — Impkovemhxt in Ranges and Stoves.</p> <p>The Hayes' patent, No. 310,276, for an improvement in ranges and stoves, covers a true combination, and discloses patentable invention, and is valid.</p>

<p>1. TitiAii — -WArvEB op Exceptions.</p> <p>An exception to the denial of a motion for nonsuit, made at the close of plaintiff’s evidence, is waived by ¡he subsequent introduction of evidence by defendant.</p> <p>8. Railroads— Action jcok Personal Injury — Sufi’icibncy op Evidence.</p> <p>' The evidence showed that while plaintiff was rightfully on the platform of a station on defendant’s railroad a large number of sparks escaped from the bottom of a passing engine, which were blown upon the platform, and one of which struck plaintiffs eye, destroying the sight. There was also evidence tending to show ¡hat the escape of sparks in that manner from an engine was not usual if the ash pan was in proper repair, a,nd the engine properly handled. Held, that such evidence was sufficient to justify the submission of the question oí defendant’s negligence to the jury.</p>

<p>On Demurrer to the Declaration for Misjoinder of Causes of Action.</p>

<p>Army and Navy — Enlistment of Minor — Subjection to Court-Martial.</p> <p>The enlistment of a minor in the army without the consent of his parents or guardian, required by Rev. St. § 1117, is not void, but voidable only, and while he remains in the service under such enlistment the minor is amenable to the articles of war, and cannot be remanded to the custody of his parents by a civil court on a writ of habeas coiqras while undergoing a sentence imposed on him by a court-martial for a violation of such articles.</p>

This is a proceeding by tbe United States for tbe forfeiture of certain liquors. Heard on demurrer to a plea filed by the claimant.

This was a suit in equity by the United States Glass Company against the Atlas Glass Company, Robert J. Beatty, president, and J. W. Paxton, secretary and treasurer, for the infringement of a patent. From a decree dismissing the bill, the complainant appeals.

<p>1. Patents — Anticipation—Design Patent.</p> <p>An inventor who has obtained a patent for an article of manufacture, which patent discloses the design Thereof, cannot, on an application made two years later, obtain a valid patent for such design.</p> <p>8. Same — Design for Dox-Pastenhh.</p> <p>The Cary design patent, No 28,142, for a box-fastener, is void for anticipation by patent No. 450,753 to the same patentee for the article itself.</p>

<p>This is a suit in equity by the Ousliman Paper-Box Machine Company against Harry W. Goddard and others for the infringement of a patent.</p>

<p>This is a suit in equity by the United States Playing-Card Company against A. G. Spaulding & Bros, for infringement of a patent.</p>

This was a suit in equity by the Palmer Pneumatic Tire Company against Henry A. Lozier to determine a question of interference between certain patents, both relating to “a new and useful improvement in fabrics.” Prom a decree adjudging defendant’s patent to be prior in point of invention and reduction to practice (84 Fed. 659), the plaintiff appeals.

<p>1. Jurisdiction — N ational Vessel — Salvage.</p> <p>Where a libel was filed to recover compensation for salvage services rendered to a vessel, which, though not commissioned in the navy of the United States, was owned, manned, supplied, and armed by the United States, and used in the transport service, held, that the judicial tribunals of a country cannot entertain suits in which the sovereign power of that country is sought to be made a party, respondent.</p> <p>2. Same.</p> <p>Held, also, that the property of a state or nation cannot, as a general rule, be proceeded against in its courts.</p> <p>3. Same.</p> <p>BeM, also, that the court has no jurisdiction over the vessel in question, although she is merely a transport.</p>

. This was a libel in admiralty for demurrage for delay caused by a failure to provide a place for discharging a cargo consigned to respondents.

<p>On Demurrer to Complaint.</p> <p>The hill of the complainant, an Ohio corporation, sets up a contract entered into with the city of Defiance in 1887 to furnish the city with 130 hydrants at 840 each per year; that, to comply with this contract, and relying on the revenue to he derived therefrom, a large amount of bonds were issued, and a plant built; that said revenue is the only means of meeting■ the interest on these bonds: that on January 7, 189(5, the council passed an ordinance or resolution attempting to rescind and annul the contract; that subsequently it passed ordinances looking to the construction of waterworks by the city; that alter $3,142.50 had become due under said contract, for the Iasi half of 1897, the council colluded with the city solicitor to bring suit against themselves, and procured an injunction against their paying any money under said contract: that such action of the city,' a municipal corporation, impaired the obligation of its contract with the complainant, and deprived it of its property without duo process of law. The prayer of the bill was for an account, and for an injunction restraining the city and council from denying the existence of the contraer, and from abrogating or attempting to annul the same, and other equitable relief. The defendants demurred to the bill on the ground that the court had no jurisdiction of the cause: that the hill contained no matter of equity; that, by complainant’s own showing, it was not entitled to the relief asked; that there was an adequate remedy at law; that the court had no jurisdiction to grant the relief asked against the city and council.</p>

This was a suit in equity by 'Daniel K. Bayne and others, creditors, against the Brewer Pottery Company, an insolvent corporation, and others. On distribution of the proceeds of defendants’ property, sold by the receiver.

<p>On Motion to Vacate Order Overruling Motion for New Trial.</p>

<p>1. Action against Federal Receiver — Removal.</p> <p>Whether authority to sue a receiver appointed by a federal court is given by the court or conferred by statute, the action arises under the laws of the United States, and it is removable to a federal court.</p> <p>2. Obstruction of Stream by a Railroad Bridge — Injunction.</p> <p>The evidence showed that a railroad crossed, by a wooden bridge 73 feet long- supported on rows of piles, a stream about 30 feet wide, and from 1 to 2 feet deep, but which in February and May of each year flooded the country above and below the bridge for 6 or S miles. A county-road bridge of one wooden span, resting on two stone abutments, 31 feet apart, crossed 25 feet above the railroad bridge, and 90 feet above this bridge was a floodgate stretched across the stream by riparian owners on both sides, to prevent cattle escaping. The approaches to the railroad-bridge were on high banks, and there were six rows of piles, 14 feet apart, and four piles in each row. One row stood in midstream, and the others were on or near the bank, ranged substantially in line with the curifent. There was no evidence that any particular damage was done by freshets because of the single row in midstream or the others. The space for a flood under the railroad bridge was more th'an double that under the county bridge, and the weight of the evidence showed that debris, ice, and timber, during high water, caught against the bank of the highway bridge rather than against the bents of the railroad bridge, and still more was caught by the floodgate. Held insufficient to authorize an injunction against building a new railroad bridge by driving down new piling parallel with the old, which were to be afterwards removed, on the ground that the piles driven to support the bridge would unduly obstruct the stream and injure the county highway and farms lying in the river valley.</p>

<p>1. On, and Gas Lands — Funds i’oit Development.</p> <p>- Feinting the determination of the title to certain oil lands, the court appointed a receiver to take charge of and develop the property, the necessary funds to be furnished by the title claimants, with the understanding between them ihat they were to be refunded to them from the sales of oil, should the same be sufficient. Held that, the title to the land having been found to be in one claimant, the other was entitled to such reimbursement.</p> <p>2. RECEIVERS — Oorts.</p> <p>The fact ihat two claimants under oil leases, at whose instance a receiver has been appointed, fail to sustain their claims, will not necessarily require that the costs of the receivership shall be charged to them, rather than to the funds in court, which are part of the subject of the receivership.</p>

<p>1. Receivers — Jurisdiction to Appoint.</p> <p>To give the circuit court jurisdiction to appoint a receiver for a corporation at the suit of a stockholder, it must appear that the amount in controversy, or the par value of the complainant’s stock, equals ¡¡>2,000.1</p> <p>2. Corporations — Action by Stockholder.</p> <p>When'a stockholder brings a suit in chancery against the corporation, he must show that he has made an earnest effort to secure remedial action by the corporation for the grievance complained of.</p> <p>3. Corporation — Suits against — Interest op Complainant.</p> <p>To entitle a stockholder to relief against a corporation, as .a stockholder, he must show in his pleadings that he was the owner of stock at the time the matters complained of occurred.</p>

These are suits by William A. Platt, as receiver of the Commercial National Bank of Colorado, against I. Reynolds Adriance, William A. Adriance, and John E. Adriance, respectively, as stockholders, in such bank. Heard on motions to require plaintiff, who resides in Denver, Colo., to file security for costs.

This was a bill in equity by the American Surety Company of New York against the Worcester Cycle Manufacturing Company and others to foreclose a first mortgage. The cause was heard on demurrer to the bill.

<p>1. Trial — Direction of Verdict.</p> <p>Where the evidence leaves substantial ground for doubt upon any material question of fact, the doubt should he resolved in favor of the right to a trial by jury, and a peremptory instruction is not justified. ■</p> <p>2. Master and Servant — Action for Personal Injuries — Contributory Negligence.</p> <p>The fact that an employé, in doing his work, went into a place which was unnecessary to its proper performance, and there stepped into a hole in the floor, and was injured, does not raise a legal presumption of his contributory negligence, where it appears that he was inexperienced, and had not been instructed as to the proper manner of doing the work, nor warned of the presence of the hole; but the question is a proper one for the jury.</p>

This cause comes here upon appeal from a decision of the circuit court, Eastern district of New York, sustaining the demurrer of defendant to the bill of complaint. 78 Eed. 396.

<p>Contract — Severance — Illegal Consideration.</p> <p>An agreement by an agent of a. life insurance company to extend a premium note of a policy holder on condition that the latter would pay a personal indebtedness to the agent is indivisible, the condition exacted being the sole consideration for the agreement to extend; and, where such condition was not performed, the fact that it was one the agent had no right to impose, and was illegal, does not render the agreement to extend obligatory or effective to continue the policy in force contrary to its terms, after default in the payment of the note.</p>

<p>On-Motion for New Trial.</p>

<p>1. Depositions — Subrcena Duces Tecum:.</p> <p>A subpoena duces tecum may properly be issued against a deponent whose testimony is taken under Rev. St. § 86S.</p> <p>2. Same — Federal Statute — Power to Take Outside oe District.</p> <p>Under Rev. St. § 8(>3, a witness may be required to appear and submit to an examination outside the district in which the suit is ponding.</p> <p>3. Attorney and Client — Attorney’s Lien on Parers or Client — Subrcena Duces Tecum.</p> <p>An attorney, having- a lien on papers of a former client in his possession for unpaid fees, cannot be compelled to produce such papers by a subpoena duces tecum issued on behalf of the client.</p> <p>4. Same — Proceedings eor Contempt.</p> <p>A court will not ordinarily determine the validity of an attorney’s lien, unless by consent, in summary proceedings for contempt against the attorney for refusing to produce papers of the client in 1ns possession in obedience to a subpoena duces tecum.</p>

<p>On motion of S. 0. Denson for the readmission oí John L. Boone as an attorney and counselor of the court.</p>

This is au appeal by Samuel Schiff & Co. from a decision of the board of general appraisers affirming the classification for duty of certain imported merchandise.

This is an appeal by H. Oppenheimer from a decision of the board of general appraisers affirming a classification for duty of certain imported merchandise.

<p>1. Customs Duties — Class into at con — Metallic Pins.</p> <p>Fancy pins, with metal shafts, ami metal, glass, or paste heads, are dutiable under paragraph 206 of the tariff law of 1890, as “pins, metallic,” and not under paragraph 108, as ‘•manufactures of which glass is the component of chief value, not specially provided for”; paragraph 206 containing no exception of “pins otherwise provided for.”</p> <p>2. Same — Hat Ouxauents ov Paste.</p> <p>Hillinery or hat ornaments composed chieflj in value of paste, in the form of so-called “Rhinestones,” their remaining material being metal backs and frames to hold the paste stones, are dutiable under paragraph 459 of the tariff law of 1890, as manufactures of which paste is the component of chief value, not specially provided for, and not under paragraph 108, as manufactures of which glass is the componeijt of chief value, not specially provided for, nor under paragraph 452, as'articles of jewelry.</p>

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

<p>Customs Duties — Classification—Fruit Preserved in Its Own Juices.</p> <p>Prunes boiled in water, and pressed through a colander, without the addition of sugar or any other material, which article is not a “jelly,” in the common meaning of that term, nor commercially known as jelly, are dutiable under paragraph 219 of the tariff law of 1894, as fruits preserved in their own juices, and not under paragraph 218, as jelly.</p>

<p>Customs Duties — Classification—Medicinal Preparations.</p> <p>The medicinal use for which a proprietary preparation is designed dominates its chemical composition for the purpose of classification.</p>

<p>Customs Duties — Classification—Portrait Lenses.</p> <p>A patent portrait lens, used as a part of a pliotograpbic camera, consisting of eight single lenses arranged in pairs and mounted in metal, which constitutes but a small part' of the value of the whole, the complete articles being commercially known as lenses, is dutiable, under paragraph 100 of the tariff law of 1894, as “lenses of glass,” and not under paragraph 98, as “optical instruments.”</p>

<p>This is an appeal by F. Meyer from the decision of the board of genera] appraisers affirming the classification for duty of certain imported articles of merchandise.</p>

<p>This was an appeal by the United States from a decision of the board of general appraisers sustaining the protest of the importers as to the classification of certain imported articles of merchandise.</p>

This is an appeal by the United States from a decision of the board of general appraisers sustaining the protest of J. ¡S. Johnson & Go. against the classification for duty of certain imported merchandise.

<p>Customs Duties — Classification—Initialed Handkerchiefs.</p> <p>Handkerchiefs on which an initial is embroidered are dutiable, under paragraph 258 of the tariff law of 1891, as “handkerchiefs,” and not under paragraph 276, as “embroidered handkerchiefs.”</p>

<p>1. Internal Revenue Stamps — Deed by Master.</p> <p>The fact that a conveyance is made by a master commissioner under a decree of foreclosure in which the priority of liens is considered and settled, and after competitive sale, does not affect the requirement that the instrument, being a “conveyance of realty,” under Schedule A of the revenue law (Laws 55th Cong. 2d Sess. c. 448), shall have the required revenue stamps affixed, to be receivable for record.</p> <p>2. Same — Exemptions.</p> <p>The exemption of cheeks, drawn by the clerk of the district court on funds held by the court, from the requirement as to revenue stamps, cannot be extended to a deed executed by the master commissioner, although the property conveyed in the deed has been in the hands of a receiver under the order and direction of the court.</p> <p>3. Same — Expenses.</p> <p>The revenue stamps required to be affixed to a conveyance of realty may be paid for, as expenses, out of the funds in the hands of the receiver, when the conveyance is by a master under decree and sale.</p>

<p>Revenue Act — Telegrams—Duty to Stamp.</p> <p>Under the act of congress of June 13, 1898, § 18 (30 Stat. 450), providing that a telegraph company shall incur a certain penalty for transmitting a message not stamped as therein required; and section 7 (30 Stat. 452), providing that any person who shall “make, sign, or issue” an instrument not properly stamped shall be subject to a fine, — it is the duty of the maker or signer of the message offered for transmission to affix the stamp.</p>

<p>This is a suit in equity by Markar G-. Dadirrian against Gamaliel M. Yacubian and another to restrain the infringement of a trade mark or name.</p>

<p>Unfair Competition in Trade — Imitation of Packases and Labels — Preliminary Injunction.</p> <p>AVhere imitation oí packages, stamps, and letters is complained of, the question is whether there is such similarity as is likely to impose on ordinary purchasers, exercising such care only as is commonly used in purchasing the article in question. AVlien this question cannot be answered with certainty or safety, and there is no prooí that any one has actually been misled, a preliminary injunction is properly denied.</p>

<p>1. Patents — Preliminary Injunction — Review of Order.</p> <p>The functions of tlie circuit court of appeals, in reviewing orders granting or refusing preliminary injunctions, are such that it may properly afiirm an order granting an injunction in one case, and an order refusing one in another, on substantially the same evidence; the matter being one not involving the exercise of exact legal judgment on the part of the trial court, but merely judicial discretion.1</p> <p>2. Same — Failure of Defendant to Make Full Disclosure.</p> <p>The refusal of a preliminary injunction in a suit for infringement, although (lie defendant’s affidavits did not disclose the materials or mode of manufacture of the alleged infringing product, will not be reversed on appeal. the weight to be given to such fact being a matter within the sound discretion of the trial court.</p>

<p>Appeal from the Circuit Court of tlie United States for the Eastern District of Michigan.</p> <p> </p> <p>This was a hill in equity to restrain the infringement of a patent. Plaintiff, the Solvay Process Company, is the owner, hy assignment, of a patent issued to William B. Cogswell, May 17, 1887 (No. 362,938), for the purpose of cooling saline solutions. The defendants attack the validity of the patent. The purpose described In the specifications of the patent is applicable to the absorber or bicarbonate column used by Ernest Solvay, and described in the specifications for a patent issued to him March 4, 1873, for an improvement in the process and apparatus for the manufacture of carbonate ol' soda. Mg. 1 of that patent, which is given on next page, sufficiently shows the structure of the column. Sol-vay said in the specifications: “Into this absorber 1 place a number of plates, perforated with small holes, so as to divide the gas as much and so often as practicable, and also a number of plates provided with one or a few large holes, which will just allow the liquor and gas to pass without permitting the fresh liquor entering the absorber to mix with the nearly-saturiited liquor at the bottom of the absorber. The perforated plates I prefer to make of the shape of globular segments, and to provide them with projections or teeth round their circumference, the openings between the said teeth allowing tlie liquor and gas to pass, when the small lióles may he partially stopped up. The above-mentioned plates may bo cast as part of the apparatus, or be sellarate pieces, or be supported therein by any convenient means. This absorber is always kept nearly full of liquor, while the carbonic acid obtained from any convenient source, but by preference from a limekiln, is forced — say by means of an air pump — in at the bottom of the absorber through a pipe. The carbonic acid gas should enter under a pressure exceeding the pressure of the column of liquor which the gas has to pass through. By these means the gas is brought into very intimate contact with a high column of liquor moving- in an opposite direction, and is at the same time made to expand, and to do .a considerable amount of mechanical work, in consequence whereof it absorbs an amount: of heat sufficient to prevent all heating of the liquor in the apparatus, otherwise produced by the absorption of the carbonic acid, and which I have found very difficult to prevent by any other means.” The liquor referred to in the patent is a solution of salt and ammonia which, after uniting with carbonic acid gas, produces by two chemical reactions crystals of bicarbonate of soda.</p> <p>The drawings, specifications, and claims of the patent In suit are as follows:</p> <p> </p> <p>“Apparatus for Cooling Saline Solutions.</p> <p>“Specification Forming Part of Letters Patent No. 362,9S8, Dated May 17, 18S7.</p> <p>“Application filed July 20, 1885. Serial No. 172,146.</p> <p>“(No Model.)</p> <p>“To All Whom It May Concern: Be it known that I, William B. Cogswell, of Syracuse, in the county of Onondaga, state of New York, a citizen of the United States, have invented certain new and useful improvements in bicarbonate columns, of which the following is a specification, reference being-bad to the accompanying drawings, in which Fig. 1 is a longitudinal vertical section of one of the horizontal segments of the column; Fig. 2, a top plan view of same, showing sections of construction at the ends of the piping system; Fig. 3, a plan view of the inner face of the pipe-heads; Fig. 4, an elevation of the column. My invention relates to the manufacture of biearbonates, and it consists in the construction of the apparatus, and not in the chemical portion of the process. My object is to partially cool the liquid contents of the column, or reduce their temperature, so that they leave the column cooler than- by the ordinary process, where tubular columns are used without any cooling attachments. It consists in the use of internal or partly internal and partly external cooling pipes, with the exterior internal surface of which the hot liquid comes into contact, and which pipes are kept as cool as possible by maintaining a flow of cold water through them, or by any other equivalent means. I construct my column as follows: A represents a section of the column, tubular in form, and provided with flanges, which are secured to the preceding and following sections in any ordinary manner, as the column is built up of successive superimposed sections until the desired height is reached. B, B, are rectangular nozzles, formed integral with the body of the column, opening outward and into the interior of the section, the openings being usually rectangular in form. These nozzles are located opposite to each other upon the periphery of the section, and usually in the same horizontal plane. O, 0, are the flue sheets, perforated, as at a, to receive the flue pipes, D, D, and also provided with holes to receive the bolts by which these sheets are secured to the outward flanges of the nozzles. The flues are set in these sheets in any ordinary manner. Jfi. JG', are the covers, provided with the partition walls 1), i), upon E, and d upon Ifi', which walls stand out at right angles to ihe inner faces of the covers,*and when placed in position form the chain!¡ers 1, 2, 3, 4, and 5. F, F', are couplings for the inlet, and exit pipes for the water or cooling mixture. II, H', arc couplings, which can be used when it is desired to couple by connecting pipes the sections (two or more) of the column together, so that the water will flow from one section through another, in Mg. 1 several seclions are shown coupled together, and ail taking the water from a single stand-pipe, m; e, e, representing the connecting pipes and n, n, ¡he exit pipes. My invention is operated as follows: The water enters the chamber 1 through the coupling. If, passes thence through the flues transversely into the chamber 4, thence through the flues into the chamber 2, thence across into the chamber 5, and thence across into the chamber 3, from which it passes out through the coupling, F'. The drawings show the pipes, J>. arranged in pairs, but they may be arranged singly, or in any other maimer desired. By the use of these pipes the contents of the column are much reduced in temperature when they leave it, and the quantity of bicarbonate!! produced, is largely increased by the quickening of the process. What I claim as my inveution, and desire to secure by letters patent, is: (1) A bicarbonate column consisting of a series of superimposed sections, provided with transverse flues continuously connected, and having inlet pipes opening into (he flues and exit pipes coupling the sections together, substantially as described. (2) A section for a bicarbonate column, consisting of a body, A, nozzles, 1$, litio sheet, 0, lines. Í). cover, E, and inlet and exit couplings, F, F', con strut-tc-d and operating together, substantially as described, for the purposes set forth.</p> <p>“in witness whereof I have hereunto set my hand this 5th day of .lamiar/, W. B. Cogswell.</p> <p>"In presence of:</p> <p>“C. W. Smith.</p> <p>“S. I). Gilson.”</p> <p>It appears by the concession of counsel that the Solvay process patent was a very valuable one, and worked a revolution in the art of making bicarbonate of soda. No column was eroded in this country until 1883. The plaintiff then built a column in accordance with the Solvay patent at Syracuse. N. Y. Considerable diiiiculty was found in preventing the heat caused by the reac lion fioni .‘¡rising to such a degree as to interfere with the proper chemical changes. At first a hose was used to throw the water upon the column which was GO feet high and 0 feet In diameter. This proved not to be successful in properly reducing the heal:. A water jacket was then put around the column, but that proved not to be what was desired. Finally, within three or four months after the column was built, Cogswell, the patentee, conceived rhe present apparatus. II was introduced into the column, and increased the production per day of a column from 12 tons of bicarbonate of soda to more than 30 tonq. The court below held that there was no novelty in the device by reason of what was shown in the prior art.</p>

<p>Patents — Infringement — Improvement in Recording and Reproducing Speech.</p> <p>Tbe Bell & Tainter patent, No. 341,214, for an improvement in recording and reproducing speech, as to claim 21, covering a loosely-mounted or gravity reproducer, held valid and infringed, on motion for preliminary injunction.</p>

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

<p>1. Maritime Liens — Laches of Claimant — Bona Fide Purchasers.</p> <p>Tlie ■ question as to what length of delay in proceeding to enforce a maritime lien will constitute laches and bar relief against a bona fide purchaser of the vessel is always one of fact to be determined in view of the particular facts in each. case.</p> <p>2. Same — Facts Considered.</p> <p>Where a libel to enforce a lien for work against a steam tug was not filed until 17 months after the work was performed, during 10 months of which time the tug had been out of commission, and lying in the harbor of the city where the libelant resided, such delay constituted laches which barred the libelant of relief as against an owner who purchased the tug a few days before the libel was filed, without knowledge of the claim, and knowing that the vessel had been out of service for many months, and who made inquiry of the seller as to liens before the purchase.</p>

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

This was a suit to enjoin the infringement of an alleged trade-mark or trade-name in the word “Pocahontas,” as applied to coal. The circuit court having made an order granting a temporary injunction, defendants took an appeal, and this court on June 1, 1898, rendered an opinion affirming the order. 32 C. C. A. 77, 88 Fed. 642. The cause is now heard on a petition filed by the appellants, asking that the mandate be recalled and, a rehearing ordered.