Volume 94 — Federal Reporter

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

<p>1. Equity — Jurisdiction.</p> <p>• A bill by the assignee .of a contract with the government, who had completed the work thereunder, against the assignor, who was insolvent, and owed the assignee on account of the contract more than was due from the government, and who had filed objections with the government against payment to the assignee, to enjoin the assignor from collecting or receiving the mofiey due for the work, and to settle, as between the parties, which had the better right to the fund, is within the cognizance of equity.</p> <p>2. Parties.</p> <p>The government is not a necessary party to a suit by the assignee of a contract with it against the assignor to enjoin his collecting or receiving ■ the money due under it, and to settle as between the parties the better right to the fund.</p> <p>8. United States — Claims against — Assignment.</p> <p>There is no claim against the United States, and therefore no assignment of it, within Rev. St. § 3477, declaring void all assignments of a claim against the United States, and all powers of attorney or other authorities for receiving payment of any such claim, unless made after issue of warrant for payment thereof, where one having a contract to do work for the United States, before doing any work under it, contracts with another to obtain advances with which to do the work, agreeing to make payment for the advances out of the moneys to be received from the government for the work, and executes a power of attorney to such other person, authorizing him to collect all money to become due on the contract with the government.</p> <p>4. Same — Contracts—Assignment.</p> <p>Under Kev. St. § 3737, declaring that any assignment of a contract with the United Slates shall canse the annulment of the contract, so far as the United State's are concerned, the government may treat it as annulled, or recognize the assignment.</p> <p>5. Equity — Matters Considered.</p> <p>The court having taken jurisdiction of a suit by the assignee of a contract with the United States against the assignor to enjoin the assignor from collecting or receiving the money duo under it, properly ascertains the amount due complaiuant from defendant, and renders a personal decree against him for that sum.</p>

<p>3. Married Women — Restriction on Power to Anticipate Income — Effect on Contracts.</p> <p>Where a provision of a will that a married woman to whom the income-from a trust fund was bequeathed for life should have no power to aliénalo or anticipate such income was valid under the laws of the state where the will was probated and the trust estate existed, though it was only so valid because of an exception to the general rule in favor of married women, a note made by the woman while still under coverture can not be given effect as an anticipation and enforced against such income by a. court of equity, on the ground that the note constituted a valid obligation under the laws of another state in which it was made, and might there have been so enforced, and that it had been reduced to judgment in the courts of a third state, nor because the defendant, after the giving of the note, became, and still remains, a feme sole, nor even because of a subsequent change in the laws governing the trust, not in terms made retroactive.</p> <p>2. Statutes — Construction—Married Woman’s Acts.</p> <p>A change in the statutes of a stale by which a married woman is given the same power to malte contracts as though she were single, with the same rights and liabilities, in the absence of an authoritative construction b.v the state courts, will not be construed by a federal court of equity to abolisli an exception in her favor, and place her withir the general-rule of the state which makes invalid restrictions on the power to anticipate or charge future income.</p>

<p>Equity Jurisdiction — Receivers oj? National Banks — Suit to Recover Dividends.</p> <p>A receiver of an insolvent national bank may maintain a suit in equity in any district against all the stockholders within the court’s jurisdiction to recover hack unearned dividends received by them, and unlawfully paid from the bank’s capital when insolvent, on the ground that it is a suit to follow trust funds.</p>

<p>1. Equity — Laches — Failure of Creditors to Contest Allowances by Probate Court.</p> <p>A court of equity will not grant relief to creditors of an estate against alleged, extravagant allowances by a probate court to tbe family of tbe detedent or tbe attorneys for tbe estate, where it is not shown that tbe probate court was fraudulently imposed upon, or that tbe complainants were prevented by fraud from contesting tbe allowances in sucb court.</p> <p>2. Same — Jurisdiction—Unsettled Estate.</p> <p>A court of equity is not precluded from entertaining a suit by creditors of an estate to set aside a payment by tbe administratrix to one creditor to the exclusion of the others, alleged to have been made through a fraudulent agreement between tbe favored creditor and tbe administratrix, because tbe estate is still unsettled, tbe pendency of tbe administration in the probate court being a matter for consideration only in relation to the disposition to be made of the fund in case of recovery.</p> <p>3. Jurisdiction of Federal Courts — Pendency of Administration in Probate Court.</p> <p>Tbe fact that a transfer of property by an administratrix was made with the sanction of a state probate court, and that tbe estate is unsettled, and tbe administration still pending in such court, does not deprive a federal court of equity • of jurisdiction of a suit to set aside sucb transfer on the ground of fraud, where the complainant is a citizen of another state, and tbe requisite amount is involved.1</p> <p>4. Equity — Suit against Administratrix.</p> <p>„A bill by creditors of an estate against the administratrix and her attorney, alleging that tbe administratrix is the real owner of a claim against the estate, which has been in form transferred to her co-defendant, and that they have combined to subject property of tbe estate situated in another state to the payment of tbe claim to the exclusion of the other creditors, states a cause of action for equitable relief, as tbe admin-istratrix, if in fact the owner of tbe claim, cannot properly represent tbe estate in proceedings relating to sucb claim.</p> <p>5. Same — Multifariousness of Bill.</p> <p>A bill^by creditors of an estate against tbe administratrix and two other defendants to set aside a transfer of property of tbe estate by tbe admin-istratrix to one of her co-defendants as fraudulent, and which also seeks relief as to a separate transaction between tbe administratrix and tbe other co-defendant, in which tbe transferee of tbe property has no interest, is multifarious.</p>

<p>Costs — Master’s Pee — Recovery of Interest.</p> <p>Where a decree which, among other matters, fixed the fee of a special master without objection as to its amount, and awarded execution there•for against one of the parties, is appealed from and reversed, and the costs, including such fee, are taxed,against the other party, the master is entitled to recover interest from such party from the time his fee was allowed.</p>

<p>On Application for an Order Dispensing with Security on Appeal.</p>

<p>On Application to Compel the Solicitor oí the Complainant to Answer Certain Questions.</p>

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

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

These are actions of assumpsit, brought by Robert R. Beard, as receiver of the First National Bank of Bella, Iowa, to recover of the respective plaintiffs in error, who are commission merchants at Chicago, the proceeds of drafts of the bank, drawn in their favor and delivered to them by E. R. Cassatt, then president of the bank, in discharge of individual liabilities incurred in transactions conducted by them for him on the board of 1rade at Chicago.

<p>In Error to the Circuit Court of the United States for the Northern District: of 01 do.</p> <p>This is an action at law to recover compensation for legal services rendered by the plaintiff in error under a contract in these words:</p> <p>“Whereas, George L: Carlisle is the attorney at law and in fact of Cornelia T. Young in all matters relating to. her interests, in the' estate of Silas S. Stone and Marga re ti a Stone, both deceased: and whereas, it may become necessary or proper for him, in the discharge of his duties aforesaid, to have the assistance of an Ohio lawyer: Now, therefore, this shows that L. A. Russell, of Cleveland, Ohio, has been, and is hereby, retained and employed by George L. Carlisle, of New York City, to appear for Cornelia T. Young in any partition or oilier suit or proceeding' which may be commenced or taken with respect to the settlement of her interest in ilie estates of Silas S. Stone and Mar-gare tta Stone, both deceased, either or both, and to do an.d perform all tilings necessary for the speedy and conrplete settlement of said interest. Said Russell accepts said employment, and it is mutually agreed as follows: 1st. Said Carlisle shall be consulted as the principal or employing attorney herein in any such suit or proceeding hereunder (and as often as may be prior thereto) which said Russell shall commence or take, and (as near as may be) all papers necessary and of importance for the prosecution of said interest shall be first submitted to said Carlisle; and ail payments, on account, or otherwise of said interest shall be made to said Carlisle as the attorney for said Young. 2nd. The compensation which said Russell may charge for such services shall in no event lie more than he will charge and receive from either Silas S. Stone or ids brother, Frank W. Stone, for like services, nor more than seven and ono-lialf (7%) per cent, of the net amount of whatever recovery in cash shall be made tlii-ougli his efforts for said Cornelia T. Young during the continuance hereof, except that if a suit in equity (other than partition) or in law, for ejectment, shall be brought in the name of said Cornelia T. Young hereunder against the personal representatives, heirs, or next of kin of said Mar-garetta Stone or Silas S. Stone, deceased, or any other person or persons, to recover any moneys or other property now in the possession of said personal representatives, heirs, next of kin, or any other person, under a claim of title thereto or interest therein, but in which said Young is entitled to share, or if such suit be brought against said Young, then and in any such event said Bussell will charge and shall be entitled to receive for such services no more than ten (10) per cent., of the net, final recovery therein to said Cornelia T. Young. It is also understood and agreed that in event that any real or other property belonging to said estates, or either of them, be, in the settlement of the same, recovered by said Russell for said Cornlia T. Young during the continuance hereof, and which shall be set apart and accepted by said Young, either in common with her said brothers or either of them, or in severalty, that said Russell, for the purpose of computing and collecting his compensation hereunder, shall be entitled to substitute the value of said Young’s interest in such land's at the.time as so much cash; and, if dispute shall arise as to the true value thereof, the same shall be finally determined by arbitration in the usual way* In witness whereof, we have hereunto set our hands and seals this 12th day of February, 1892.</p> <p>“Signed, sealed, and delivered in the presence of James L. Barger.</p> <p>“George L. Carlisle.”</p> <p>“L. A. Russell.”</p> <p>The defendants were Cornelia T. Young and husband, William S. Young, and George L. Carlisle. There was a jury, and verdict for plaintiff in error for a balance due under the contract of $3,348.89 against William Shipman Young and wife, Cornelia T. Young, and a verdict for George L. Carlisle. From the judgment thereon the plain-tiff in error, L. A. Russell, has sued out this writ of error.</p>

<p>1. Sheriffs — Failure to Protf.ct Prisoner — Liability oh Official Bond.</p> <p>Tire duty of a sheriff to safely keep a prisoner charged with an offense, and committed to his charge, and to produce such prisoner in court at the time of trial, is one that he owes to the state alone, and for a breach of which no action lies in behalf of any citizen; but, in addition, it is his duty to exercise reasonable care for the protection of the life and health of any person lawfully placed in his custody as an official, and this duty he owes to such person, and he and his sureties are liable on his official bond for its breach, where such bond is conditioned generally for the faithful performance of the duties of his office.</p> <p>2. Same.</p> <p>It is no defense to an action against a sheriff and the sureties on his official bond, for his failure to exercise proiier care for the protection of a prisoner in his custody, that the acts charged in the complaint also constitute a crime.</p> <p>3. Same — Action by Legal Representatives.</p> <p>Under the Indiana statute (1 Bums’ Rev. St. 1894, § 285), providing that, when death is caused by the wrongful acts or omission of another, the personal representative of the deceased may maintain an action therefor if the deceased might have maintained an action for an injury resulting from the same act or omission had he lived, the legal representative of a prisoner who was murdered by a mob may maintain an action on the bond of the sheriff, in whose custody the deceased was at the time, for a failure of the sheriff to perform his official duty in protecting his prisoner.</p>

<p>1. Malicious Prosecution — Probable Cause.</p> <p>In an action for malicious prosecution, defendants are not liable, no matter how vindictive they may have acted, nor what their motives may have been, if they acted with probable cause.</p> <p>2. Same — Question for Court.</p> <p>Whether or not there was probable cause for the institution of a criminal proceeding, where the facts are undisputed, is a question of law for the court; otherwise, one of fact for the jury.</p> <p>3. Same — Evidence.</p> <p>The evidence showed that certain public officials in charge of the public records of the court and the sheriff of the county were informed, by a deputy clerk, that a former clerk was about to steal certain public records and destroy them, with an intent to prejudice such officials by showing payments made without proper vouchers, and that on a certain day he would carry his purpose into effect. On such day the former clerk was discovered by the officials removing such records from the clerk’s office, and thereupon they procured his arrest. Held that, in an action by such clerk for maliqjous prosecution, the jury should have been instructed that there existed, so far as the public officials were concerned, probable cause for the institution of the criminal proceedings.</p> <p>4. Same.</p> <p>A former clerk was arrested on a charge of stealing public records with intent to destroy them, but defended on the ground that his purpose was simply to examine the same in order to ascertain their validity. Certain public officials had been informed by a deputy clerk of the intent of such former clerk to steal the papers, and, on finding him in possession of the papers, caused his arrest. Held, in an action against such officials and the deputy clerk for malicious prosecution, it was error to instruct the jury that if the purpose of such former clerk in taking the papers was to examine them, and not to destroy them, and the person giving the information to the public officials had knowledge of such intent, that the arrest and prosecution of such clerk for taking the '’papers was without probable cause, in that it made no distinction between the public officials and the deputy clerk, as such public officials had no knowledge of the facts other than as communicated to them by said deputy clerk.</p> <p>6. Same — Res Judicata.</p> <p>Where an indictment for stealing certain road orders from the office of the clerk of court was sustained on demurrer, and the accused tried 'thereunder and acquitted, in a subsequent action for malicious prosecution accused cannot claim that the prosecution was instituted without probable cause, because the road orders were not subjects of larceny, as the judgment of the criminal court was binding and valid on the questions necessarily involved in the maintenance of the indictment, to wit, that a criminal offense was charged.</p> <p>6. Same — Advice of Attorneys.</p> <p>The advice of reputable counsel, bona fide sought and given on full and fair statement' of all the facts, and as a consequence of which a prosecution was instituted, is a sufficient defense in a suit for malicious prosecution.</p> <p>7. Same.</p> <p>On a trial for malicious prosecution, the defense that defendants acted under the advice of attorneys may be sustained, though the advice was taken after the arrest, but before the issuance of the warrant.</p> <p>8. Same — Evidence.</p> <p>On a trial of several defendants for malicious prosecution in procuring the trial of plaintiff for stealing public records, plaintiff could not prove stai aments made toy him to third parties before the taking of the papers, as to what were his objects and purpose in procuring such papers, such evidence being hearsay.</p>

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

<p>1. Review- — Casks Timen to Court— Effect oe General I?inbtn<j.</p> <p>The sufficiency of a declaration is reviewable on error by the circuit court of appeals, and, if it fails to state a cause of action, the defect is not cured by a general finding for plaintiff by the circuit court, where a jury is waived, nor is it waived by the defendant by answering and proceeding to trial after his demurrer has been overruled.</p> <p>8. Municipal Corporations — Liability on Contract for Public Improvements — Illinois Statute.</p> <p>A contractor for the making of public improvements in an Illinois city, governed by the city and village act (1 Starr & C. Ann. St. [2d Ed.] 777 et seq.), which provides (article 9, § 49) that all persons taking such contracts, who agree to be paid from special assessments, “shall have no claim or lien upon the city or village in any event, except from the collection of the special assessment made for the work contracted for,” and whose contract provided that he should make no claim against the city in any event, except from collections, and should take all risk of the invalidity, of the special tax, cannot maintain an action against the city for a general judgment on the ground that its officers failed or refused to levy a second assessment after the first had been held invalid by the supreme court of the state, but is confined to his remedy to compel the officers to perform their duty.</p>

<p>On Motion by Plaintiff for Judgment and by Defendants to Discharge an Attachment.</p>

<p>1. Trial — Direction op Verdict — Waiver op Error.</p> <p>Error in refusing to direct a verdict for defendant, on his motion, at the close of plaintiff’s evidence, is waived, where defendant proceeds with the case, and gives evidence on his part.</p> <p>2. Same — Right to have Verdict Directed.</p> <p>ltofusa.1 to direct a verdict for defendant at close of plaintiff’s case cannot he assigned as error.</p> <p>8. Same — Motion—Request por Instructions.</p> <p>A request for a charge that, under the evidence, the verdict must be for defendant, is equivalent to a motion to direct a verdict.</p> <p>4 Same — Authority to Direct Verdict.</p> <p>Where the trial judge is satisfied, upon the evidence, that plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, should be set aside, the jury may be directed to find for defendant.</p> <p>5. Master and Servant — Assumption op' Risk — Machinery.</p> <p>Tlie rim of a fly wheel was fastened on by bolts that projected towards the engine from 1% to 3 inches. Between the wheel and the engine block there was a water-pipe line connected with the engine pump. This line was only a half inch from the longest projecting bolt, and when the pump was in operation it vibrated. Held, that an engineer accepting employment under such conditions, and remaining in service without reliance on any promise of the master to remove the cause of danger, assumed the risk of the bolts catching the pipe and breaking it, and throwing part of it against him, although he did not anticipate that such an event might result from the situation of things.</p> <p>6. Same — Promise to Repair Defects.</p> <p>' A master is liable for an injury to a servant, resulting from an obvious defect and known danger, where the servant relied on an express or implied promise by the master to make repairs, for such time as would be reasonably required to repair tbe defect, but no longer; and, in tbe event of an injury during such time, tbe servant could recover therefor.</p> <p>7. Same — Knowledge of Defect.</p> <p>Where, tbe knowledge and tbe means of knowledge of tbe servant in respect to a patent defect are equal or superior to those of the master, tbe servant cannot recover for injuries resulting from such defect, where there is no question of the intricate character of the machinery or tbe imperfect intelligence of the servant involved.</p>

<p>1. Damages — Bbeach op Contract for Adoption'.</p> <p>The measure of damages for breach of a contract by one person to adopt. another and make the latter an heir, under the law of Pennsylvania, is not tlie value of the share of the promisor’s estate at his death which would have been inherited by the promisee, but the value of the services rendered or outlay incurred by the promisee on. the faith of the promise, with interest.</p> <p>2. Same — Wiiat Law Governs.</p> <p>Where a contract for adoption was. to he performed in a certain state, and the estate to which the person to be adopted would thus have become an heir Is there situated, the law of such state governs as to the measure of damages for a breach of the contract.</p>

In Bankruptcy. On review of ruling of referee The certificate of the referee (Henry J. Field, referee in bankruptcy for Franklin county, Mass.) was as follows: “The bankrupt, three or four years ago, was a member of a partnership at Lincoln, Nebraska.

In Bankruptcy. On petition of Walter Carter, as trustee in bankruptcy of Beecher G-oodykoontz, against the bankrupt and Zachanali T. Hobbs, to set aside certain mortgages and a lease of a brickmaking establishment made by the bankrupt to Hobbs, as being preferential and fraudulent. For decision of the court overruling a demurrer to the petition, see 92 Fed. 594.

In Bankruptcy. Augustus A. Oltapin, referee in bankruptcy, presents his petition, showing that on the 18th day of April, 1899, Samuel L. Morris and Charles H. Worden, as receivers of this court, sold the entire property of the.bankrupt corporation for $356,000; that they received in payment therefor the sum of $186,000 in the bonds of said corporation, which were held by the .purchaser, the General Electric Company, and $171,400 in money; and the referee claims that the…

<p>In Bankruptcy.</p>

<p>On Habeas Corpus.</p>

<p>Bankruptcy — Final Dividend — Rights of Subsequently Proving Creditors.</p> <p>Where the trustee in bankruptcy has collected and reduced to cash all 1 the assets of the estate, and has the same ready for distribution, the estate will be closed, and á final dividend, including the entire fund, will be declared and paid to creditors whose claims have been proved and allowed, notwithstanding the fact that the period of one year from the date of adjudication, within which time creditors may prove their claims, has not yet expired, and creditors proving thereafter will only be entitled to subsequently discovered assets and unclaimed dividends.</p>

This is a suit by William J. Buttfield against George R. Bidwell, collector of the port of New York, to restrain his action in respect to the importation of certain teas. Heard on motion for preliminary injunction.

<p>1. Criminal Daw — Offenses Cognizable by Federal Courts.</p> <p>Tlie courts of the United States do not resort to the common law as a source of criminal jurisdiction, bnt can only take cognizance of such crimes and offenses as are expressly designated by the laws of congress, and of which they are by such law-s given jurisdiction.</p> <p>2. Indictment — Sufficiency—Charging Offense in Language of Statute.</p> <p>Whore a statute fully, directly, and expressly, without any uncertainty or ambiguity, sets forth all the elements of an offense, an indictment is sufficient which charges the offense substantially in the language of the statute.</p> <p>3. Same — Description of Offense.</p> <p>The sufficiency of an indictment is to be tested by ascertaining whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant oí what he must meet, ami whether, in case oilier proceedings are taken against him for a similar offense, the record shows with accuracy to what extent he may- plead a former acquittal or conviction.</p> <p>4. Same — Reference to Averments of Previous Count.</p> <p>An averment- in the second or a subsequent count of an indictment, drawn under Rev. St. § 5209, that said defendant, on a date given, “being then and there the cashier of said association as aforesaid,” as such cashier, commit tod the acts charged, is sufficient to identify and incorporate in such count the averments of the iirst count that the defendant was, at the time referred to, the duly elected and acting cashier of a certain national banking association, and that such association was at the time existing and carrying on business under the laws of the United States.</p> <p>5. Same — Manner of Designating Year.</p> <p>The designation in an indictment of the year in which the offense is laid by Arabic figures is sufficient, and no prefix is essential; the year of the Christian era being understood as meant in all public or judicial documents in this country, unless otherwise expressed.</p> <p>6. National Banks — False Entries by Officers — Sufficiency of Indictment.</p> <p>An indictment against a sole defendant, charging that, as cashier of a national banking association, he caused and procured the making of false entries in the books of the bank, by certain clerks under ills control as such cashier, with intent to defraud, sufficiently charges him with the offense as principal; the making of such entries hy his direction being the same, in legal effect, as his making them in person.</p> <p>7. Criminal Law — ¡sufficiency of Indictment to Support Sentence.</p> <p>Where a verdict of guilty is rendered on a number of counts, a sentence which does not exceed that which may legally be imposed on any one count is supported by the indictment, if any count is good.</p> <p>8. Same — Plea of Former Acquittal — Manner of Disposition.</p> <p>Where a so-called “special plea of former acquittal” is made in the form of a motion to discharge the defendant and exonerate his bond, based on former proceedings in the same cause and court, so that no evidence thereon is required, and only a question of law is presented, it is not necessary that issue should be joined thereon, and it may properly be disposed of by the court, like any other motion.</p> <p>9. Same — Review—Waiver of Objection.</p> <p>A defendant who, after the overruling of a special plea of former acquittal, proceeds to trial without objection as to the manner in which' the plea was disposed of, waives the right to raise the question on appeal.</p> <p>10. Same — Former Acquittal — Construction of Verdict.</p> <p>In a prosecution against an officer of a national banking association, under I-tev. St. § 5209, for making false entries in the books of the association, and in reports to the comptroller, the indictment containing a number of counts, some charging the making of entries with intent to injure and defraud the association, and others with intent to deceive the association, and, in case of reports, the comptroller, the jury, on the first trial, rendered a verdict, which was set aside and a new trial granted, in which they found the defendant “guilty, as charged in the indictment, in falsifying the returns to the comptroller of the currency, and also hooks of the * * * hank, and on the balance of the counts we do not agree.” Eeld, that such verdict could not he construed as a special verdict, amounting to an acquittal.</p> <p>11. Same — Trial—Presence of Defendant — Sufficiency of Record.</p> <p>It is not essential that the record of a criminal trial should show the presence of the defendant at every step of the proceedings, but the presumption is that his presence, once noted, continues at least during that entire day.</p> <p>12. Same — Examination of Witness — Leading Questions.</p> <p>, Permitting the prosecution to propound leading questions to one of its witnesses is within the discretion of the trial court, and cannot he made the basis of an assignment of error.</p> <p>18. Same — Evidence.</p> <p>For the purpose of showing the falsity of an entry in the books of a national bank purporting to show a special deposit by a county treasurer of ?10,000 immediately prior to a report made to the comptroller, which was shown to have been withdrawn a few days later, the government introduced the treasurer as a witness, who testified that he did not remember whether or not he made the deposit, but, if lie did so1, it was from public funds in his hands as such treasurer. Held, that it was within the discretion of the court to permit the introduction of the treasurer’s cashbook for the purpose of showing whether or not any entry of such deposit or withdrawal appeared therein, although the witness testified that, if he made the deposit, no record thereof would appear on the books of his office.</p> <p>14. Witnesses — Right of Party to Show Inconsistency in Testimony of His Own Witness.</p> <p>While a party is not permitted to impeach his own witness, he is not precluded from showing facts inconsistent with some of the statements of the witness.</p> <p>15. National Banks — False Entries in Books by Officer — What Constitute.</p> <p>In a prosecution of an officer of a national hank for making false entries in its books with intent to deceive the bank examiner, where there ■wns testimony as to certain deposits made which were marked “special,”- and that the identical money was a few days later returned to the depositors, an instruction was correct which charged the jury that, if they found hoyond a reasonable doubt that the understanding between such depositors and the defendant was that the money ayes only to be used by the bank for the purpose of being shown to the examiner as a part of the funds of the bank, then the entry of such sums as deposits was a false entry.</p> <p>16. Same — Intent— Ineerence kiiom Facts Proved. •</p> <p>A finding as to the intent with which false entries were made in the hooks of a national bank by an officer of the bank may be based on legitimate inferences from the facts shown, and where, on the trial of a defendant for making such entries with intent to deceive the bank examiner, it is found that the entries were false'; that they were made, or caused to be made, by defendant; and that their necessary effect ivas to deceive the bank examiner, — it may be inferred that they were made with such intent.</p> <p>17. Cm min at, Raw — 1Triad—Construction op Instructions.</p> <p>In determining whether a charge in a criminal case is misleading, it must be road and considered as an entirety.</p>

This was a prosecution by the United States of A. J. Niemeyer and Charles Niemeyer for uulawfully cutting and removing, or causing to be cut and removed, timber from public lands of the United States. The defendants were, respectively, president and general manager of the Saginaw Lumber Company, located near Malvern, Ark. They justified the raking of the Umber under purchases from homesteaders occupying the lands from which it was cut.

<p>This is a suit in equity to enjoin alleged unfair competition in trade. Heard on motion for preliminary injunction.</p>

<p>1. Copyright — Infringement—Literary Production of Employe.</p> <p>Tbe literary product of a salaried employé, tbe result of compilations made in tbe course of bis employment, becomes tbe property of tbe .employer, who may copyright it, and when so copyrighted tbe employé has no more right than a stranger to copy or reproduce it; but he is not debarred from makjng a new compilation from tbe same original sources, nor, in so doing, from making use of tbe experience and information gained in his employment.</p> <p>2. Same — Suit for Piracy — Preliminary Injunction.</p> <p>A preliminary injunction will not be granted on ex parte affidavits in a suit for the piracy of a copyright publication, where the fact of piracy is not clear, but the question will be left for determination on a full hearing.</p>

This was a suit in equity by the Duff Manufacturing Company against the Kalamazoo Bailroad Velocipede & Car Company for alleged infringement of letters patent No. 455,993, granted July 11, 1891, and No. 527,102, granted October 9, 1894, both to Josiah Barrett, for a jacking apparatus. The claims involved are 1 and 6 of the earlier patent, and 19 of the later one. The cause was heard on a motion for preliminary injunction.

<p>1. Patents — Pleading and Evidence — Anticipations.</p> <p>There is no error in admitting- in evidence a patent of which notice has not been given, under Rev. St. § 4920, where it is introduced, not as an anticipation, but merely to show the prior state of the art, as bearing solely upon the question of infringement.</p> <p>2. Same — Construction oe Claims — Comiunations.</p> <p>When a specific element” is not claimed as a device by itself, but all the claims are for a combination, this is, in effect, an admission that such element was old, and was not invented by the patentee.</p> <p>3. Same — Ini-ringement of Combination Claims.</p> <p>If the invention claimed be but an improvement on a known machine, by a mere change of form or combination of parts, the patentee cannot treat another as an infringer who has improved the original machine by tlie use of a different form or combination performing- the same functions. Tlie inventor of tlie first improvement cannot invoke the doctrine of equivalents to suppress all other improvements which are not mere colorable evasions of the first.</p> <p>■4. Same — Expert Evidence — Jury Trial.</p> <p>Where, in a jury trial, the question is as to whether an element in defendant’s machine is the mechanical equivalent of one of the elements in the patented machine, the mere fact that there is testimony by experts that it is such an equivalent does not necessarily require the submission of the case to the jury; for the court is not bound to accept the opinion of experts, but may draw its own conclusions from an inspection of the respective machines or models, and if, in its opinion, tlie evidence is insufficient to support a verdict for the plaintiff, it may instruct the jury to find for defendant.</p> <p>5. Same — -Elevators.</p> <p>Tlie Hinkle patent, No. 257,943, for an improvement in freight and passenger elevators, construed, and held not infringed.</p>

<p>,1. Patents — Invention—Brake Shoes.</p> <p>There is no patentable invention in chill-hardening the extremities of a brake shoe through the entire mass of the metal, instead of through only a fractional part thereof.</p> <p>2. Same — Construction of Claims.</p> <p>A claim which is simply for a brake shoe having the metal at its extremities chill-hardened through its entire mass, instead of only a fractional part thereof, cannot, for the purpose of sustaining it, have imported into it, by construction, the particular method by which the patentee produces the chill-hardening.</p> <p>3. Same — Brake Shoes.</p> <p>The Charles E. Wohlfarth patent, No. 543,072, for an improvement in brake shoes, is void for want of invention.</p>

<p>1. Patents — Prior Use in Poreíos Country.</p> <p>Under Rev. St. § 4023, mero prior use in a foreign country does not defeat a patent where the pa tent ee is ignorant thereof, and believes himself to be th(! first inventor.</p> <p>2. Sajim — Anticipation — Prior Publications.</p> <p>A description which is insufficient to 'support a patent cannot be relied upon as an anticipation. Unless file prior publication describes the invention in such full, clear, and intelligible terms as to enable persons skilled in the art to comprehend it, and reproduce the process or article claimed, without assistance from the patent, such publication is insufficient as an anticipation.</p> <p>3. Same — Extrinsic Evidence.</p> <p>Prior patents and publications alleged to anticipate must be taken in the meaning disclosed upon their face, and extrinsic evidence is not admissible to reconstruct them, as by showing that a word having a sensible meaning in the context was erroneously used for another word.</p> <p>4. Same — Patentable Products.</p> <p>If a product be patentably new and useful, tbe patent should be sus^ tamed, even though the article may be produced by a process substantially like those used to'produce somewhat similar results in the prior art</p> <p>5. Same — Invention.</p> <p>The discovery that safranine-azo-naphthol, a coal-tar product, which was long believed to be insoluble, and valueless, was soluble by prolonged washing, so as to produce a cheap and valuable substitute for vegetable indigo, hold to involve patentable invention.</p> <p>6. Same — Decisions by Foreign Courts.</p> <p>A decision by the courts of a foreign country that the discovery of a certain process involved the exercise of patentable invention, while not binding on the courts of this country, is yet entitled to- weight as the opinions of trained experts in the country of the inventor where the particular art was best understood.</p> <p>7. Same — Blue Coloring Matter.</p> <p>The Julius patent, No. 524,254, for improvements in the manufacture of blue coloring matter, whereby a new dyestuff is prepared from safranine-azo-naphthol, held valid and infringed.</p>

<p>1. Patents — Ineringemmstt—Measure or Damages.</p> <p>Where the patentee himself manufactures the patented article, and maintains a close monopoly, so that one desiring to use it could purchase It only from him, It is proper, In case of wanton infringement, to conclude that but for the infringement the infringer would have purchased the articles from the patentee, and consequently that the latter is entitled- to all damages resulting from the loss of such sales.</p> <p>2. Same — Wanton Infringements.</p> <p>In cases of wanton infringement, any doubt arising in respect to the sufficiency of the evidence to warrant a finding of the amount of damages is to be resolved against the infringer.</p> <p>3. Same — Computation op Damages.</p> <p>In a case of wanton infringement, where it appeared that defendant had made and used a certain number of the infringing articles, and that the business of manufacturing the patented article as carried on by the patentee was one in which the expenses of manufacture could be readily computed, held, that he was entitled to recover the difference between the cost of manufacture, as shown by his evidence, and his established selling price, in the absence of any evidence contradicting his figures; especially when, if successful contradiction were possible, it lay within defendant’s power to furnish the evidence.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>This is a libel in rem, by shippers of goods shipped on board the steamer Queen of the Pacific, belonging to the claimants herein, to. recover damages for breach of contract of affreightment. There were a large number of libels filed, -which, being of the same nature, were consolidated. The respective proctors agreed to select two cases — those of the Bancroft-Whitnoy Company and Heilman, Haas & Co. — for trial, as it was believed they would fairly pi*e-sent all the questions of law and fact that might arise in the other cases; the disposition of the others to be subject to subsequent arrangement after the final decision herein.</p> <p>The libelants aver, in substance, that on or about the 28th day of April, 1888, the goods alleged to have been damaged were shipped, in apparent good order and condition, on board the steamship Queen, at the port oí San Francisco, for transportation to the port of San Diego, Cal., there to he delivered in like good order and condition; that at said time the Pacific Coast Steamship Company, claimant herein, entered into a contract of affreightment with libelants for the delivery of the goods, certain perils in said agreement excepted; that the Queen sailed for San Diego with said merchandise on board; that, notwithstanding said contract of affreightment, said merchandise was not delivered to libelants, at said port, or n1 any other place, In like good order as received, “hut, on the contrary, said merchandise was returned to said port of San Francisco in a greatly damaged condition, by reason of having been wet with sea water during said voyage, which, by reason of the negligence of said steamship company, its officers and servants, gained access to the interior of said ship, where said merchandise was stowed, lo wit, on or about the 80th day of April. A. D. 1888”; that said steamship is now in the Northern district of California; that, in consequence of the injury and damage to said merchandise, the libelants have sustained damage, etc. Exceptions were filed to the libels by the claimant of the vessel, which were overruled by the court. The Queen of the Pacific, 61 Fed. 218. The claimant then filed answers to the libels. The. answers admit that the said merchandise was received on board the Queen, and was not delivered at San Diego, and that it was returned to San Francisco, and was damaged by reason of having been wet with sea water; hut deny “that the same was so wet with sea, water during said voyage, or by reason of the negligence of said steamship company, its officers and servants, or either of them; and deny that by reason of such, or any such, negligence, sea water, or any water, gained access to the interior of said ship, where said merchandise was slowed,” or at any time, or at .all; deny that at the time the libels were filed the said steamship was,in the Northern district of California; and a.ver that for four days prior thereto, and continuously thereafter, the said ship was without the Northern district of California; denies all damages. And, for a further and separate answer and defense, the claimant alleges “that said steamship Queen of the Pacific was. when she sailed from said port of San Francisco, as in said libel alleged, stout, stanch, strong, and in every respect seaworthy, and in snch condition sailed from said port of San Francisco, fully and completely manned, officered, and equipped for her intended voyage, and with merchandise on freight, and a large number of * s; * passengers on board of her; that she left * * * San Francisco at about the hour of 2 o’clock p. m. of April 29, 1888; S: * * that no unusual incident was known to occur during said 29th of April, 1888; that, about 1 o’clock a. m. of the 30th of April, said steamship was noticed to have a slight list to starboard; that efforts were then made to correct such list by shifting freight to port in the between-decks, and burning coal mostly from the starboard bunkers; that about 2:15 or 2:30 o’clock a. m. of Monday, April 30, 1888, water was discovered to be dropping from a point in the iron bulkhead on the starboard side of the engine room, and about six (O') or eight (8) inches above the deck of the alleyway in the between-decks of the vessel; that an examination then made resulted in Witter being found in the between-decks of the steamship aft, such water exlending about halfway from the side of the ship to the hatch coamings, hut the aperture through which such water entered the vessel could not, after diligent search for the same, he discovered; that seamen were put to work passing such water down the hatches into the hold, so as to bring it williin reach of the bilge pumps, and such pumps were kept in operation, notwithstanding which the water steadily increased between-decks, and the list of the vessel became so great that about the hour of 5 o’clock a. m. it was deemed by the master of said vessel prudent to make for Port Harford with all convenient speed, which was done, and the said vessel at about the hour of 7 o’clock a. m. of said 30th day of April, 1888, was run upon the beach at said Port Harford, at which place sea water immediately came in over her deck, and nearly filled the vessel with water, and thereby said merchandise became wet with sea water; that the beaching of said steamship was necessary to prevent and avoid a total loss of said steamship, and of all the said merchandise then on board of her, and was done by the master thereof as the result of cool deliberation, and in the exercise of a wise discretion on his part as to what was best to be done, and with the purpose of saving said vessel and cargo, and of rendering entirely safe the lives of all the persons, passengers and crew, 212 in number, then on board of said steamship; that the said Pacific Coast Steamship Company, owner of said steamship, did at all times, and immediately prior to the sailing of said steamship from the said port of San Francisco with such merchandise on board of her, exercise due diligence to make the said steamship in all respects seaworthy, and properly manned, equipped, and supplied for her then intended voyage, to wit, a voyage to San Diego and way ports, and return; that the crew of said steamship was composed, during the times referred to, of persons competent to discharge the duties pertaining to their several stations on board said vessel”; that said merchandise was delivered to, received and carried by,' the claimant, under and in pursuance of the laws of the state of California, and the provisions of special contracts made by the libelants and the claimant; and that said merchandise was damaged, if at all, in said state. And, for a still further and separate defense, claimant alleges: That the libels are barred by the laches of the libelants in the prosecution of the same, by the terms of the contract alleged in said libels, which reads as follows: “It is expressly* agreed that all claims against the P. O. S. S. Co., or any of the stockholders of said company, for damages to, or loss of, any of the within merchandise, must be presented to the company within thirty days from date hereof, and that, after thirty days' from date hereof, no action, suit, or proceeding in any court of justice shall be brought against said P. C. S. S. Co., or any of the stockholders thereof, for any damage to, or loss of, said merchandise; and the lapse of said thirty days shall be deemed a conclusive bar and release of all right to recover against said company, or any of the stockholders thereof, for any such damage or loss.-’ That libelants did not present, or cause to be presented, to said company, within such 30 days, their claims for the damages, or any part thereof, as in said libels alleged; nor was this, or any, proceeding commenced in any court within said 30 days, nor at any time prior to the 28th of April, 1S92, at which time said steamship was not within the Northern district of California; nor was said steamship seized by the marshal under process until the 4th of May, 1892. That the libels are barred by the provisions of sections 337 and 338 of the Code of Civil Procedure of the state of California. That the same are barred by laches on the part of libelants, by delay in the prosecution of the same for such length of time as constitutes, and is, a bar to a recovery thereof in a court of admiralty.</p> <p>Under the issues as thus presented, the proctor for libelants at the trial contented himself with introducing the shipping receipts as evidence of' the apparent good order and condition of the goods when delivered to> the carrier for shipment, and, after offering some testimony as to the damaged state of the shipment of Heilman, Haas & Co., rested their case. Thereupon claimant moved for a judgment in his favor, which was overruled by the court (The Queen of the Pacific, 75 Fed. 74); and then the claimant introduced evidence in support of the averments in the answer. This evidence did not disclose the cause of the leak, nor the exact locality where the water gained access to the vessel. The court, upon the final hearing, rendered- a decree in favor of libelants. The Queen, 78 Fed. 155.</p>

This is a libel in rem, in admiralty, on an alleged contract, civil and maritime, against the steamboat City of Clarksville, her boats, tackle, apparel, and furniture, and against all persons lawfully intervening, tor their interests therein.

<p>1. Shipping — Contribution- in General Average — Liability of Carriers.</p> <p>The fact that the owners of a vessel cannot maintain an action against the owners of the cargo for contribution in general average for the ship’s loss by fire because the fire was caused by the negligence of one of their crew, which is imputable to them, does not protect them from a similar action by the owners of the cargo for contribution.</p> <p>3. Same — Excluding Loss to Ship.</p> <p>Although the owners of a vessel have been adjudged exempt from lia-Dility for damage to the cargo resulting from a fire due to the negligence of one of the crew, under section 3 of the Harter act, on the ground that they exercised due diligence to make the vessel seaworthy and in fit condition for the voyage, and were without personal negligence or fault, they cannot maintain an affirmative action against the owners of the cargo ror contribution in general average to the ship’s loss; hut whore they are invited to such an adjustment by an action brought by the sole owner of the cargo, the ship’s loss must be taken into consideration, as the effect of excluding it would be to make the same act for which they are acquittal of responsibility by the statute the basis of an indirect recovery of a. part of the damage which was in issue in the direct action.</p>

<p>Shipping — Construction op Charter-Party — Risk op Collision.</p> <p>A provision of a charter party that “the owners shall pay for insurance on the vessel,” to he given any effect as between the parties, must be construed as requiring the owners to insure against all such losses as would otherwise fall on the charterer; and, where the owners failed to procure insurance, they made themselves insurers, and cannot cast upon the charterer the burden of paying damages recovered against the vessel for collision, against which they might have insured.</p>

On September 24, 1897, at 7:20 a. m., the British steamship Torr Head, bound on a voyage from New Orleans to Belfast, drawing about 25 feet of water astern, grounded on the Frying Pan Shoals off the coast of North Carolina, near the mouth of Cape Fear river, between five and six miles inside of the light-ship there stationed, and about a mile east-northeast from the black buoy.

<p>Appeal from the District Court of tbe United States for the Eastern District of New York.'</p> <p>This cause comes here upon appeal from a decree of the district* court, Eastern district of New York. The suit was brought to recover damages for personal injuries sustained by libelant in consequence of a fall through an open hatch. The district court held both parties in fault, and divided the damages it assessed ($1,000) equally between them. 87 Fed. 349. The claimant has appealed. The facts sufficiently appear in the opinion.</p>

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

<p>1, Removal of Causes — Motion to Remand — Time for Filing</p> <p>It is tlie settled practice in the circuit courts of the United States in the Second circuit to allow a motion to remand to be made at once on the removal of a cause from a state court, without waiting for the next term, and, unless the record is filed by the removing defendant within a reasonable time, to permit it to be filed by the plaintiff.</p> <p>8. Same, — Nature o. Suit — Statutory Proceeding to Condemn Property.</p> <p>Under the statutes of Connecticut relating to the condemnation of property under the power of eminent domain, which delegate to a judge of a state court the power to first determine the right to take the property, and then to appoint a commission to fix the compensation, such a proceeding is not a suit at common law or in equity, of which a federal court would have original jurisdiction under the judiciary act of 1888, and hence is not removable under such act.</p>

Suit by John M. C. Dickey against Mary S. Dickey, executrix, to recover a legacy. Prom' decree in favor of plaintiff for part of amount claimed, he appeals.

<p>1. Telegraphs — Proceedings to Condemn Right of Way — Federal Statutes.</p> <p>Rev. St. § 5268, authorizing telegraph companies to construct their lines over an(i along any military or post roads of the United States, authorizes no compulsory proceedings to obtain a right of way over private property for such lines, and condemnation of such right of way can only be made by virtue of some law of the state where the property is situated.</p> <p>2. Same — Statutes of Ohio.</p> <p>Rev. St. Ohio, § 3454 et seq., relating to telegraph companies, when construed in connection with the original acts from which they were transferred by the,compilers, with some change of language, must be held to limit the right to maintain proceedings for the condemnation of rights of way for their lines to telegraph companies organized under the laws of the state. Hence a federal court cannot entertain a suit by a telegraph company of another state to condemn a right of way for its lines in Ohio.</p>

<p>Contract by City for Fire Protection — Right of Individual to Enforce —Privity.</p> <p>A contract between a city and a water company, by which the company agreed to construct, maintain, and operate a system of waterworks in the city, and, among other things, to maintain at all times a sufficient pressure in the mains for fire purposes, does not create a privity of contract between the company and a citizen or resident of the city which entitles the latter to maintain an action against the company to recover for a loss hy fire, on the ground that, if the required water pressure had been maintained, the fire would have been extinguished and the property saved.</p>

<p>1. Suit to Quiet Title — Equity Jurisdiction — Instrument Void on Its Face.</p> <p>Under the general chancery practice, and in the absence of a statute enlarging the remedy, a court of equity cannot entertain a bill to quiet title where the instrument sought to be relieved against is void on its face.</p> <p>2. Same — Parties—Suit to Construe Deed.</p> <p>A suit to determine the validity of a limitation over in a deed after the death of one grantee cannot be maintained by such grantee during his lifetime, for want of necessary parties to render such determination effective, where the persons who will be the beneficiaries under the limitation cannot be ascertained until it takes effect.</p>

<p>Taxation — Lien of Taxes on Personal Property — Minnesota Statute.</p> <p>Under Gen. St. Minn. 1894, § 1623, which provides that “the taxes assessed upon personal property shall he a lien upon the personal property of the person assessed from and after the time the tax books are received by the county treasurer,” the lien so created is paramount to any other lien upon the property, prior or subsequent, in favor of private parties.</p>

The bill in this case was filed by M. J. Curtis and A. D. Bowley, the appellants, against Josiah S. Lakin and the Sacramento Gold Mining Company, the appellees, on November 13, 189?, and was subsequently amended on March 8, 1898.

<p>1. Agent — Representing Adverse Interests — Notice to as Affecting Principal.</p> <p>The fact that an agent also acts as agent for the party adversely interested in the transaction does not prevent his principal from being hound by notice to or knowledge acquired by such agent where the principal consents to such adverse agency.</p> <p>2. Same — Acquiring Adverse Interests — Notice to as Affecting Principal.</p> <p>Where one negotiating the sale of a mortgage for a trust company is also the agent oi the proposed purchaser for the purpose of investing his money and examining his titles, and pending the negotiations the agent becomes the owner of the mortgage, without the knowledge of the principal, the agency ceases, so that on the subsequent purchase of the mortgage by the principal he is not hound by notice to or knowledge of the agent as to defects in the mortgage or its title, and is a bona fide purchaser- for value.</p>

On the 31st of January, 1888, William E. and Mary A. Clarke made and delivered their promissory note for $6,500 to the Northwestern Mutual Life Insurance Company, and to secure the payment of the same, made and delivered to the insurance company tlieir mortgage deed on tlie real estate here in controversy.

<p>MATTERS OE DEFENSE TO REVIVOR— BURDEN OF PllOOF.</p> <p>In defense to a Mil of revivor to carry into effect a decree in a suit which lias abated by the death of the original complainant, the defendants may show that the decree was rendered without jurisdiction over their persons, but the burden rests on them, in such case, to prove that the attorneys who appeared for and assumed to represent them in the case acted without authority.</p>

- This is an appeal from an interlocutory order granting a temporary injunction restraining appellants from in any manner working the property known as the “Independent Mine,” and from extracting or removing ores therefrom, or removing or selling any ores, until the final determination of the cause.

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

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

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

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

Mrs. Jennie Bronson (now the wife of Henry J. Young) was married to Alva M. Holbrook, in the city of New York, on the 25th day of June, J8G4. Holbrook was domiciled in the city of New Orleans. On the 20th day of December, 1871, upon a petition filed in November of that; year, a decree of divorce was pronounced in the Eighth district court for the parish of Orleans, dissolving the bond of matrimony theretofore existing- between these persons.

On January 4, 1893, Theodore H. Dravis, the defendant in error, was a merchant in business at Sibley, in the state of Iowa. ITe had a stock of merchandise, whoso cost price was $8,000. He mortgaged these goods to Kolm Bros., the plaintiffs in error, to secure the payment of $3,81(5 which he owed them.

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

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

<p>1. Appeal — Defective Verdict — Necessity of Objection in Trial Court.</p> <p>An objection to the sufficiency of a verdict cannot he urged in an appellate court, where the hill of exceptions does not show that the defect was called to the attention of the trial court, and proper exception taken to its action thereon.</p> <p>3. Same — Review of Instructions — Failure to Bring- into Record.</p> <p>The charge of a trial court is no part of the record, and cannot he noticed on appeal, unless brought into the record by the bill of exceptions, and without such charge before the court the refusal to give instructions requested cannot be reviewed.</p> <p>3. Same — Bill of Exceptions — Adding Matters by Stipulation.</p> <p>Neither testimony nor instructions can be added to a bill of exceptions, after it is signed and filed, by stipulation of counsel in the axipellate court.</p>

This was an action brought by T. H. Harby a.nd his wife, Maggie Harby, against the Texas & Pacific Railway Company, for damages resulting from the death of their infant child, who was run on and killed by a train of the railway company on a bridge across the Colorado river at Colorado City, Tex., on July 10, 1897. The child was 3 years and 11 months of age. The location of the bridge is west and a few hundred yards distant from the station at Colorado City.

<p>Accord and Satisfaction — Executory Agreement.</p> <p>An agreement to accept notes of a third person in part payment of a debt, and to extend the time for payment of the remainder, on the giving of certain security, must be fully executed before it can be pleaded as an. accord and satisfaction.</p>

Granted, and plaintiff: brings error. The plaintiff in error filed its petition in the state court of Colorado for condemnation of a right of way. The original petition was filed on September 12, 1892, and the cause was removed to the federal court by defendant in error on October 14, 1892. The transcript of the record was filed on November 1, 1892.

<p>In Error to the United States Court of Appeals in the Indian Territory.</p> <p>This suit is founded on two insurance policies, one for $2,500 and one for $1,000, which were issued by the Liverpool & London & Globe Insurance Company, the plaintiff in error, to T. K. Kearney .and J. W. Wyse, composing the firm of Kearney & Wyse, the defendants in error. The policies covered a stock of hardware located in the town of Ardmore, in the Indian Territory, which was destroyed by fire on the morning of April 19, 1895, during the life of the policies. For a defense to the claim made under the policies the defendant company appears to have relied altogether on the following provision of the policy, termed “the iron-safe clause”: “The assured under this policy hereby covenants and agrees to keep a set of books showing a complete record of business transactions, including all purchases and sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in the within policy is not actually open for business, or in some secure place not exposed to a fire which would destroy the house where such business is carried on; and in case of loss the assured agrees. and covenants to produce such books and inventory, and, in the event of a failure to produce the samé, this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss.” Noncompliance with this clause was alleged in the defendant’s answer, in that the insured did not keep books showing a complete record of their transactions, including all purchases or sales for cash and credit, nor any inventory of said business, or memorandum, securely locked in a fireproof safe at night, or in some secure place not exposed to fire; and in that they did not furnish to the insurer, as a part of their proof of loss, a record of their transactions, — that is, of the sales for cash or credit, or purchases, — or an inventory of their business. There was a verdict and a judgment at nisi prius in favor of the plaintiffs below, which judgment was affirmed by the court of appeals in the Indian Territory. 46 S. W. 414. The defendant below brought the case here on a writ of error.</p>

<p>1. Railroads — Care Required as to Person on Track.</p> <p>When, for a considerable period, numerous persons have been accustomed to walk across or along a railroad Track between given points, those in charge of passing trains are required to take notice o£ such fact, and to use reasonable precautions to prevent injury to persons whose probable presence on the track should be anticipated.</p> <p>2, Same — Injury to Child— Contributory Negligence op Parents.</p> <p>Where the father of a child two years of age was absent from home, and the mother had gone to a neighbor’s, a short distance away, leaving the child, with older children, at play in the yard, where a neighbor was also at work, and the child escaxied, unobserved, and went upon a railroad track some 250 feet from the house, and was run over and killed by a pr sing train, it cannot be held, as a matter of law, that the parents were guilty of contributory negligence, but the question Is one for the jury.</p>

<p>1. Board op Education — Corporate Nature — Bonds.</p> <p>rJhe board of education of the city of Huron, organized under Laws Dak. 1887, c. 47, is a body corporate, separate and independent from the city of Huron, and, in determining whether bonds issued by it increase the corporate indebtedness beyond the prescribed limit, its debts, and not the debts of the city, are to be computed.</p> <p>2. Same — Limitation op Indebtedness.</p> <p>Comp. Laws Dak. 1887, §§ 1149, 1150, providing that the limit of bonded indebtedness that may be incurred by a city or other municipal corporation shall be based on its assessed valuation for the year preceding the incurring of the indebtedness, do not apply to boards of education created under Laws Dak. 18S7, c. 47, which is complete in itself, and restricts the power of boards of education to issue bonds to an amount not exceeding 3 per cent, of their assessed valuation, though it is silent as to what assessment shall be used in the computation.</p> <p>3. Samis — Computation op Assessed Valuation.</p> <p>Under Laws Dak. 1887, c. 47, restricting the power of boards of education to issue bonds to an amount not exceeding 3 per cent, of their assessed valuation, the computation must be based on the last completed assessment before the bonds were issued. !</p>

This action was brought by Joseph Berberich, plaintiff below, against the Western Coal & Mining- Company, defendant below, to recover damages for personal injuries sustained by the plaintiff, while working for the defendant as a. coal miner in its coal mine, by reason of an explosion of gas in the mine.

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

, This case is substantially as stated by plaintiffs in error as follows: “This action was brought on the 12th day of January, 1893, in the district court of Harrison county, Tex., and was removed to… Held: (3) That the company had acquired the right of way by adverse use and proscription, and therefore plaintiffs could recover neither the land nor pay for same; (2) that the defendant in error had complied with its contract, and was not amenable to any suit whatever.

<p>1. Malicious Phosucutiox — When Actiou Libs.</p> <p>One who both makes an arrest, and originates the proceeding in which it is made, may, though protected as to the arrest, be liable for malicious prosecution.</p> <p>3. Same — Probable Cause — Mai,toe.</p> <p>Where defendant put in motion a criminal proceeding against plaintiff, a Chinaman, under the Chinese exclusion act, on the ground that he had not a certificate of residence as required thereby, thus subjecting him to imprisonment and compelling him to establish his innocence, the only incriminating circumstances at the time being want of resemblance between plain! iff and the indistinct photograph attached to the certificate in his possession, and the existence of scars on his face, while the certificate stated that the person named in it had no physical marks or peculiarities for identification, and the photographer testified that in his opinion the photograph was one of plaintiff, and that it might originally have shown the scars, and that they might have faded out, and defendant did not attempt to compare the photograph with the one which the act required to be filed in the olitce of the collector of internal revenue, and did not inquire when the scars were received, a finding of want of probable cause, from which malice may be inferred, is justified, though at a subsequent investigation, before trial before the commissioner, there was sufficient evidence of probable cause, in that plaintiff made contradictory statements as to his residence, when he obtained the certificate, and as to whether he had the sears before the photograph was taken, and he was found to be an inch taller than described in the certificate.</p>

. Tlie Penn Mutual Life Insurance Company, the defendant in error, brought a suit against, Benn Brewer, the plaintiff in error, to recover a balance due on a note for $20,000, which remained unpaid after certain foreclosure proceedings had been taken under a deed of trust which was given to secure the payment of the note.

<p>National Banks — Stockholders—Estoppel to Deny Liability for Assessment.</p> <p>Subscribers to the capital stock of a national bank previously organized and carrying on business, who accepted certificates of stock representing a portion of the original capital stock, obtained by the bank in some manner from the former holders, are estopped, after the lapse of five years, during which they retained the stock, received two dividends, and paid one assessment thereon, to deny that they are stockholders, in a suit by the receiver to collect a further assessment, on the hank’s insolvency, on the ground that they supposed they were purchasing a part of an issue of increased stock which the bank had voted to issue, but Hie issuance of which had not then been authorized hy the comptroller.</p>

In Bankruptcy. Wolf S. A. Von Borcke, the alleged bankrupt, gave a chattel mortgage on his property to a trustee to secure certain of his creditors; the same being dated October 31, 1898, and recorded November 3, 1898.

<p>1. BANKRUPTCY — PROVABLE DEBTS — STATUTE OP LIMITATIONS.</p> <p>A claim ioiuuled oil a judgment is not provable in bankruptcy against the estate of the judgment debtor when at the time of filing the petition in bankruptcy all right of action thereon was barred by the statute of limitations of the state where the judgment was recovered and by that of the skate where the creditor resides, as well as by the law of the state vthere the bankruptcy proceedings are pending.</p> <p>2. Same — Dkbt Listed in Kciikdulk.</p> <p>The fact that a bankrupt includes in his schedule of debts a claim already barred by the statute of limitations does not revive such claim, so as to make it a provable debt against his estate, to the prejudice of his other creditors.</p> <p>8. Same — lixpuNorno Claim.</p> <p>„ A claim duly proved and allowed against the estate of a bankrupt may be expunged, on motion, when it is shown to have been barred by the statute of limitations at the time the petition in bankruptcy was filed.</p>

<p>In Bankruptcy. On motion for new trial.</p>

<p>Custom's Duties — Classification—Alizarine Violet.</p> <p>Alizarine violet, known as “alizarine cyanine R” was entitled to free entry as an alizarine color or dye, under paragraph 368 of the act of 1894, and was not dutiable as a coal-tar product, under paragraph 14 of said act.</p>

<p>1. Indictment for Mailing Prohibited Matter — Sufficiency—Identification of Letter.</p> <p>An indictment under Rev. St. § 3893, charging the defendant with having deposited in a post office, for mailing and delivery, a letter giving information where, how, and of whom might be obtained an article designed and intended for the procuring of abortion, must in some manner identify such letter, to the end that the accused may be informed of the nature of the charge, and that a judgment may be pleaded in bar to a second prosecution for the same offense; and the letter should be set out in the indictment, or a sufficient reason given for not doing so.</p> <p>2. Same — Motion tn Arrest— Bill of Particulars.</p> <p>It is not Urn office of a bill of particulars to cure a ba.d indictment, and the failure of a defendant to ask for such bill does not deprive him of the right to object to Ihe sufficiency of the indictment by motion in arrest.</p> <p>8. CitiMiNAi, Law — Effect of Arrest of Jddsment as to One Count of Indictment.</p> <p>The arrest of judgment upon some of the counts in an indictment on which the defendant was tried and found guilty because of their insufficiency necessitates the setting aside of the verdict, and the granting of a now trial as to the remaining counts, where the evidence introduced under the defective counts was such as to prejudice the defendant in his trial on the others.</p>

<p>Patents — Validity and Infringement.</p> <p>The Tower patent, No. 378,223, for a penholder with a layer of cork, called a “sleeve,” at its lower end, to form a cushion (supposed to he anti-nervous), construed, and held not infringed.</p>

<p>This was a, proceeding in admiralty by John Seymour and others to limit their liability as owners of the steamer Puritan.</p>

<p>This was a suit in admiralty by Rundell, administrator, against La Compagnie Générale Transatlantique, to recover for the death of his intestate while a passenger on defendant’s steamship La Bur-gogne, through the alleged negligence of defendant. Heard on exceptions to the libel.</p>

<p>1. Review — Findings op Fact.</p> <p>It is the stilled rule of the supreme court and the circuit courts of appeals that, where a case is tried by a federal court without a jury, the sufficiency of the evidence to sustain its general findings of fact cannot be considered by the appellate court.</p> <p>2. JURISDICTION OP FEDERAL COURTS — FEDERAD CORPORATIONS.</p> <p>It is not the domicile of a corporation created by an act of congress which confers jurisdiction on the federal courts of suits to which it is a party, but the fact that it was so created, and that any suit by or against it arises under a law of the United States.</p>

<p>1. Jurisdiction of Federal Courts — Allegation and Proof of Jurisdictional Facts.</p> <p>‘It is sufficient to support the jurisdiction of a federal court that the facts requisite to confer it appear in any part of the record, or are the necessary consequences of the facts stated in the pleadings or the findings of the court.</p> <p>2. Same — Suit by Receiver of National Bank.</p> <p>A receiver for an insolvent national bank, appointed by the comptroller of the currency, may sue in a-federal court, without regard to his citizenship or the amount in controversy.</p> <p>■3. Review — Findings of Fact.</p> <p>Where a case is tried by a federal court without a jury, the sufficiency of the evidence to sustain its findings of fact cannot be considered by the appellate court.</p> <p>4. Promissory Note — Defenses—Failure of Consideration.</p> <p>The maker of a note given in payment for stock in a national bank, and transferred to the bank by the payee with the maker’s knowledge and acquiescence, cannot defend against an action thereon by the receiver of the bank on the ground of failure of consideration, because of the bank’s insolvency, where, he has been fully indemnified against loss by the payee.</p>

<p>1. CITATION — NECESSITY ON AfPKAT, — SPECIAL APPEARANCE.</p> <p>Willi reference to the rule that, there is no necessity for issuance of citation where appeal is taken in open court, one who appears for the purpose of making a motion to dismiss, even though the motion relates to a want of jurisdiction and lack of proper service, is in court for all purposes relating to the disposition of the motion, whether on appeal or otherwise.</p> <p>2. Jurisdiction as Basis op Motion to Dismiss Appkal.</p> <p>That the court below had no jurisdiction of the parties cannot be made the basis of a motion to dismiss an appeal.</p> <p>3. Substituted Service in Ancillary Proceedings.</p> <p>Service in ancillary proceedings on the attorney of record in the original cause is sufficiently supported by an order permitting such substituted service, on bill alleging that defendant is not an inhabitant of the district, and cannot he served with process and summons therein, and that he has an attorney appearing for him in the ease to which the suit is ancillary, and asking that service be made on such attorney.</p>

The bill was filed on April 5, 1898. A general demurrer was filed, which was sustained by the circuit court, in a decree dismissing the bill.

<p>Review — Conflicting Evidence — Findings of Fact.</p> <p>The findings of the chancellor on a question of fact will not be disturbed, unless clearly shown to be against the weight of evidence.</p>

<p>Contracts — Construction—Salk of Patented Articles</p> <p>A provision of a contract that it shall not be deemed to authorize either party to make sales of articles covered by patents owned by the other, cannot be construed as a covenant against the making of such sales, so as to afford a basis for a suit by one party to enjoin the other from making them, but it leaves the parties, as to such sales, as they stood before the contract was made.</p>

<p>1. Mineral Lands — Joint Location of Placer Claims.</p> <p>It is the policy of the government, in disposing of its mineral lands, to make a general distribution among as large a number as possible of those who wish to acquire such land for their own use, and it is contrary to this policy, and to the provisions of Rev. St. §§ 2330, 2331, to permit one person to cover more than 20 acres of placer ground by one location by the device of using the names of his employes or friends as locators.</p> <p>2. Same — Rights in Claims on Indian Lands — Necessity of Showing Actual Mineral Character of Land.</p> <p>Where mineral claims in litigation are located on lands recently a part of an Indian reservation, and which have not been opened to occupation by white people except for mining purposes, the actual mineral character of the land involved must be shown, otherwise the court will not adjudicate rights therein in favor of either party.</p>

These are suits in equity by the Cleveland City Railway Company and the Cleveland Electric Railway Company, respectively, against the city of Cleveland, to enjoin the enforcement of an ordinance reducing rates of fare on portions of complainants’ lines, on the ground of its unconstitutionality. Heard on application for preliminary injunction.

<p>1. CONSTITUTIONAL LAW — PlULlO IMPROVEMENTS — ASSESSMENTS—FRONT-FOOT Rule.</p> <p>The statute of Missouri (sections 1495, 1496, Rev. St. 1889) authorizing th(‘ apportionment of tho costs of repaving a street in cities of the third class on blocks and lots abutting thereon according to the front foot, without regard to the question of fact whether or not the given parcel of land is benefited thereby to the extent of the assessment, and without affording ihe property owner an opportunity to question the existence of such benefit, is iu contravention of the fourteenth amendment to the federal constitution, and is therefore void.</p> <p>2. Same — Peculiar Benefits — Hearing.</p> <p>The only theory of law under which the cost of such street improvements can be imposed as a special tax on the abutting property rather than as a burden upon the entire municipal community, being the fad, that the local property is peculiarly benefited thereby, statutes or ordinances which arbitrarily assume that such local property is benefited in the proportion of the frontage thereof are invalid, unless the opportunity is afforded, at some period in the progress of assessment and the enforcement thereof, to be heard upon the question of fact as to whether or not the benefit is equal to the burden imposed, and as the supreme court: of the state holds that, notwithstanding no notice or hearing is provided therefor when the tax is imposed by the city council, the owner when sued for the enforcement of the special tax cannot bo heard to defend upon the ground that his properly was not in fact benefited, nor upon the question as to whether the apportionment of the costs is equal among the several lot owners, (he statute Is violative of the fourteenth amendment of the federal constitution, and the whole (ax may be enjoined. Following- Village of Norwood v. Baker, 19 Sup. Ct. 187, 172 U. S. 269.</p> <p>(Syllabus by the Court.)</p>

<p>1. Constitutional Law — Due Process of Law — Disqualification by Interest.</p> <p>Rev. St. Ohio, § 2781, providing for an examination by the auditor as to property withheld from the tax list by the taxpayer, makes taxes found withheld delinquent from the time certified to the treasurer, and enforceable by distraint. Rev. St. Ohio, § 1071, allows the auditor a commission of 4 per cent, on all taxes so added to the tax duplicate. EM that, the functions of the auditor being judicial in their nature, his pecuniary interest renders proceedings conducted by him not due process of law within Const. Amend, art. 14. i 1</p> <p>2. Federal Courts — Equitable Remedies under State Laws — Restraining Collection of Tax.</p> <p>A remedy by injunction against the collection of an illegal tax, expressly provided by a state statute, may be applied by a federal court of equity in the state, notwithstanding the statute also provides for an action at law to recover back the tax when paid. Cummings v. Bank, 101 U. S. 153, followed.</p>

<p>These were three suits by the United States against the Southern Pacific Railroad Company and others to determine the title to certain lands, which were consolidated and tried together.</p>

On the 5th of March, 1895, the American National Bank made a written proposal to the Louisville Banking Company- as follows: “Gentlemen: As we have not the pleasure of an account from you, and being in a position to serve you to our mutual advantage, we beg leave to offer you our best services for the care of any business you have in this section, assuring you of our very best attention to your interest.

The object of this suit is to recover the proceeds of a large number of checks, drafts, notes, etc., — generally denominated “items of exchange,” — transmitted between July 31 and August 4, 1896, inclusive, by the appellee, complainant, to the American National Bank for collection. These proceeds, it is averred, were collected after the failure of the insolvent bank, and came into the hands of the receiver, the appellant.

<p>1. Interest — Rate on Bonks after Maturity — Effect of Declaring Debt Due for Default in Paying Interest.</p> <p>An election to declare railroad bonds due before they would otherwise mature, under a clause of the mortgage securing them, because of default in the payment of interest coupons, has no other effect than to render the principal presently collectible, and the provision of the bonds fixing the rate of interest thereon during the entire term for which they were to run continues in force until decree; but, as to interest coupons which have matured by their own terms, in the absence of any provision of the contract fixing the rate of interest after maturity, the legal rate will govern.</p> <p>2. Conclusiveness of Decree — Impeachment in Supplemental Proceedings.</p> <p>A decree in a suit to foreclose a railroad mortgage, which at the instance of the trustee in the mortgage determines the amount due on the mortgage debt, including interest accrued on the bonds and the matured coupons, renders the amount of such interest res judicata as to all bondholders represented by the trustee, and all others who are or may thereafter become parties to the suit, and the correctness of the decree in that respect cannot be questioned in supplemental proceedings brought thereunder.</p>

This suit was brought to recover the sum of $2,170, with interest, alleged to be due on 62 coupons attached to bonds issued by the city… Held: resulting in a majority vote in favor of said corporation, — some of those voting living inside, and some outside, of the limits prescribed by said charter; and upon return thereof the said county judge, by proper order, declared the said city duly incorporated, with the limits in said petition set out, and which contained an area of…

Eliza W. Patrick, the defendant in error, brought this action against Prank L. Underwood, the plaintiff in error, to recover certain sums of money claimed tó be due her on notes executed by one Nathan D. Allen. The substance of the facts set out in the complaint are: That Mrs. "Patrick was the owner of a tract of 615 acres of land adjoining the city of Omaha, Net)., which Underwood, Craig, and Allen wanted to purchase from her.

At close of plain tiff’s testimony the question was presented whether there was sufficient evidence to go to the jury, upon which the court ruled as follows.

In Bankruptcy. Specifications in opposition to the- bankrupt’s application for discharge were filed, as follows: ¡ “Shapira & Dryzer, of Knoxville, in the county of Knox and state of Tennessee, parties interested in the estate of H. Blumberg, bankrupt, do hereby oppose the granting to him of a discharge from his debts, and for grounds for such opposition do file the following specifications: The debt of Shapira & Dryzer against said bankrupt is one which arose from the…

, Appeal by the United States from a decision of the hoard of general appraisers, which reversed the action of the collector of customs in assessing duty upon the merchandise in question.

<p>Appeal by the United States from a decision of the board of general appraisers which reversed the classification of the collector of customs of the importations in question.</p>

Appeal by the importers from a decision of the board of general appraisers which sustained the classification of the collector of customs of the importations in question.

<p>OFFENSES AGAINST POSTAL LAWS — OPENING OF LETTER — WHAT CONSTITUTES Delivery.</p> <p>■ After a letter lias been delivered by the postal authorities to the person in whose care it is addressed, it is no longer in the custody of the United States, nor subject to its jurisdiction; and the opening and destruction of such letter, or the abstraction of its contents, after it has been so delivered, though readdressed to be forwarded, but before it has been again deposited in the mail, is not an offense, under Rev. St. § 3892.</p>

<p>This was a hearing on the application of Murphy L. Anderson, [William N. Barr, and George W. Metcalf for a writ of habeas corpus.</p>

<p>1. Trade-Names — Infringement—"Vichy” Mineral Water.</p> <p>The name “Vicky,” as applied to mineral waters, is a geographical name, used generally by the owners of springs near Vichy, in France, to designate the locality of origin, and indicate the general characteristics of their waters. It is not a trade-mark or trade-name in a legal sense, and a suit by such 'owners against a defendant for applying the name to artificial waters can only be maintained on the theory of unfair competition.1</p> <p>2. Same — Unfair Competition — Laches.</p> <p>Defendant’s testator began the manufacture of artificial “Vichy” water in New York in 1862, advertising- and selling the same under the name of “Schultz’s Vichy Water,” as his own product, and as made from analyses of the natural spring water. His waters attained a high reputation ánd a large sale, being considered by many superior to the natural water. There was no attempt at deception, and his labels were entirely dissimilar from those under which the natural spring water was sold. Held, that the use of the name “Vichy” in connection with this product did not tend appreciably to confuse the identity of the natural and artificial products, but, even if it did so, it having been begun in good faith, and continued for 30 years without objection on the part of complainants, they could not be heard to assert the right to an injunction. 2</p>

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

This was a suit in equity by the Crosby Steam Gage & Valve Company against the Ashton Valve Company for alleged infringement of a patent for improvements in safety valves. The circuit court adjudged that the patent was valid, and had been infringed by defendant, and entered a decree for complainant. From this decree, the defendant has appealed.

This was a suit in equity by William James Hogg against Gimbel Bros, for alleged infringement of a patent for-a design for carpets.

<p>This was a suit in equity by the Owatonna Manufacturing Company against F. B. Fargo & Co. for alleged infringement of a patent.</p>

<p>This was a suit in equity by the Consolidated Fastener Company against the American Fastener Company for alleged infringement of a patent. The cause was heard on a motion for preliminary injunction.</p>

<p>1. Patents — Infringement—Joinder op Elements.</p> <p>One may not escape infringement by the mere Joinder of two elements into one integral part, if the united part effects the same results, in substantially the same way, as the separate parts before the union.</p> <p>2. Same — Mechanical Equivalents — Workmen’s Time Recorders.</p> <p>In a workman’s time recorder, the mere substitution, for a turning key having the workman’s number on its ward, of a pushing key having such number upon a fin, the function of each being to set in motion mechanism which operate the impression devices, is but the use of a mechanical equivalent.</p> <p>3. Same.</p> <p>A patent for a workman’s time recorder, in which the printing is .done by pressing a recording strip against the type by a blow from an impression hammer, is infringed by a mechanism in which the type is pressed upon the recording strip by pressure only. The two methods are mere mechanical equivalents.</p> <p>4. Same — Construction op Patent.</p> <p>To be entitled to the benefit of the doctrine of equivalents, it is not essential that the patent shall be for a pioneer invention in the broad sense of that term. If the invention is one which marks a decided step in the art, and has proved of value to the public, the patentee will be entitled to the benefit of the rule of equivalents, though not in so liberal a degree as if his invention were of a primary character.</p> <p>j>. Same — Meritoriousness op Invention.</p> <p>The meritoriousness of an improvement depends — First, upon the extent to which the former art taught or suggested the step taken; and, second, upon the advance made in the usefulness of the machine as improved.</p> <p>6. Same — Estoppel by Accepting Action op Patent Office.</p> <p>To be estopped by the action of the patent office, the patentee must be shown to have surrendered something which he now claims in order to obtain that which was allowed.</p> <p>.7. Same — Workmest’s Time Recorders.</p> <p>The Bundy patent, No. 452,804, for a workman’s time recorder, construed, and held infringed as to claims 3 and 4 by the time recorder of the Watson patent, No. 515,805.</p> <p>8. Same.</p> <p>The Bauer patent, No. 305,882, for a watchman’s time detector, construed, limited, and held not infringed as to claim 4 by the time recorder of the Watson Patent, No. 515,805.</p>

<p>Costs in Admiralty— Action for Collision — Both Vessels in Eault.</p> <p>Where, on a libel for collision, both vessels are held in fault, and, libel-ant’s vessel alone having been injured, no cross libel is filed, and libelant recovers half his damages, each side will be allowed ono-half its taxable costs.</p>

<p>1. Appfal in Admiralty — Rrvtkw of Questions op Fact.</p> <p>Where The evidence in a suit in admiralty is taken before an examiner, the decision of the trial court on questions of fact is not entitled to the sanio controlling weight as where the judge saw and heard the witnesses testify, and will he more readily reviewed by an appellate court.</p> <p>2. CONTR TOT FOR REPAIR OF VESSEL — EXTRA WOKK — WAIVER OF WRITTEN CONTRACT.</p> <p>A provision of a written contract for the repair of a vessel, that no extra work should he done unless an estimate in writing was first made and submitted to and signed h.v an officer of the company owning the vessel, may he waived; and where, after the vessel was stripped to begin the work, it was found to he impossible to make the repairs specified in the contract without to a large extent rebuilding the hull, and after consultation with the. officers of the company the contractor was told by the presiden! 1o go on with the work, which ho did, and under the direction of a. superintendent employed by the company, and with the knowledge of its officers and directors, replaced all the rotten parts of the. hull, and made' the vessel sound and seaworthy, the company, having’ accepted the vessel, must he considered as having waived the written contract, and cannot invoke its provisions to defeat recovery for all work done not specified therein.</p> <p>3. Sami! — Waiver by Corporation.</p> <p>The fact that the owner of the vessel was a corporation, and took no formal action in the matter by its board of directors, would not prevent its being hound by the action of its officers, and the acceptance of the benefit of the contractor’s work without objection.</p>

<p>1. Bills and Notes — Collateral Security — Conditions—Mortgages.</p> <p>Liability of one on a note to a bank secured by a mortgage conditioned that the mortgage should be and remain a continuing security for all notes, bills of exchange, drafts, checks, and other evidences of debt to a specified amount of said party or a corporation with which he was connected, is not established where it appears that he had neither signed nor indorsed such note, that no demand on him for its payment had been made, that he had not been notified of renewals and the bank books do not show that he had any connection with the renewal of the notes.</p> <p>2. Ad mir alty — Rules—Intervention .</p> <p>Adm. Rule 34, providing that one may intervene and be heard in his own interest if he shall propound the matter in suitable allegations, and be admitted by the court, requires the court to pass upon the claim of the intervener to give him a standing in court.</p> <p>3. Champerty and Maintenance.</p> <p>An agreement that the purchaser of a note and mortgage from receivers, for which he pays nothing, shall foreclose the mortgage, bring all necessary suits, and pay all necessary costs, and pay the receivers one-half of what he may recover, he to retain the balance, is champertous.</p> <p>4. Same — Conflict of Laws.</p> <p>That the common-law doctrine of champerty does not obtain in New York except as brought forward under the statutes cannot be urged in an action on a contract made in New York, to be performed in North Carolina, which is brought by one who buys under an agreement to divide the amount recovered, it not appearing that the purchaser is an attorney, as the courts of New York hold that “an agreement by one who is not an attorney to aid in defending a suit is illegal and void for maintenance.”</p> <p>5. Same — Rule in North Carolina.</p> <p>There can be no recovery in North Carolina on a claim founded on a champertous contract.</p> <p>6. Assignment of Note by Receiver — Evidence of Authority.</p> <p>Recovery on a note assigned by receivers cannot be had unless it is shown that the assignment was authorized by the court.</p> <p>7. Maritime Liens — Evidence to Support.</p> <p>A claim for a maritime lien for money advanced at the special instance and request of the master will be denied where 'the deposition of claimant does not show at whose request the money was advanced, and it does not appear that the advancement was necessary for the navigation of the vessel, and neither the master of the vessel nor the agent through whom the money was paid are examined as witnesses, and the only evidence is the unsatisfactory testimony of claimant, as such liens are stricti juris, and will not be extended by implication or construction.</p> <p>8. Same — Seamen’s Wages — Rights of Assignees.</p> <p>The assignee of a seaman’s claim for wages has no lien.</p> <p>9. Sauce —Repairs of Vessel — Materials.</p> <p>Repairs io a vessel, and materials furnished in making the same, will sustain a maritime lien, though the owner of the vessel was absent and unknown, where the repairs were made on the credit of the vessel, and were necessary, and such as would have been made by a reasonably cautious business man under the circumstances.</p>

<p>Collision —Contributory Negligence — Anchored Vessel.</p> <p>A vessel cannot "be lield guilty of negligence contributing to a collision because ber machinery was disconnected and her sails taken down while at anchor, for the purpose of making repairs, when she was properly anchored in a safe berth, where she remained; the collision being- caused by the drifting against her in the night of another vessel, which was insecurely anchored.</p>

This is a suit in equity.against a city and others for the abatement of a nuisance alleged to have been created by the discharge of sewage from the sewer system of the city on the premises of complainants, and to recover damages caused to complainants thereby. Heard on demurrers to bill. The bill in this case alleges, in substance: That the plaintiffs are husband and wife, and citizens and residents of Bowie county, in the state of Texas.

This is a bill in equity to foreclose a mortgage. It is filed by the People’s Building, Loan & Saving Association, a corporation organized under the laws of the state of New York, against George W. Andruss and Hannah Andruss, residents and citizens of Texas. .The material facts, as agreed on between the parties, are as follows: “That on the 3d day of March, 1893. the defendants, George W. Andruss and his wife, Hannah Andruss, entered into and executed and duly acknowledged a…

This is an appeal from a decree for the payment of the sum of $35,093.-1.5, interest thereon, and costs, by John J. Reithmann, George Tritch, Job A. Cooper, I). C. Dodge, and John Good, to the appellee, Zoph. T. Hill, as receiver of the German National Bank of Denver, on account of the misappropriation of the funds of that bank in 1888 and 1889.

This was a suit by the receiver of an insolvent building and loan association to foreclose a mortgage executed by one of its stockholders, in which, the receivers of a corporation which had become the owner of the mortgaged property, and was also insolvent, and certain subsequent lienholders and grantees, were made parties or intervened.

This is a suit in equity brought by the complainant, under section 2326, Rev. St. U. S., in support of the adverse claim filed by him in the United States land office at Spokane against the application of the defendants for a patent to the Ben Tillman lode mining claim, situated in Eureka mining district, Ferry county, state of Washington; the complainant claiming title to the same ground under a mining location called the “Minnie Lode Mining Claim.”

<p>Motion to Het Aside the Verdict and Dismiss the Cause.</p>

This action was brought by John X’. Smith, receiver of the City National Bank of Ft. Worth, Tex., to recover of the State National Bank of Ft. Worth and John 0. Harrison the sum of $(¡,000 and 10 per cent, interest per annum thereon from July 10, 1896. The petition alleged, in substance, that the State National Bank of Ft.

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

<p>1. Limitation op Actions — Pleading Statute.</p> <p>Under Key. St. § 4920, the statute of limitations may be pleaded specially in the federal courts, either with or without the general issue, regardless of the state practice.</p> <p>S. Pleading — Federal Courts.</p> <p>The tendency of the federal courts is to regard with disfavor the interposition of inconsequential points of technical pleading.</p>

<p>1. Corporations — Creation by Implication— Conferring Corporate Powers on Luvke Board.</p> <p>A board of levee inspectors created by act of the legislature of Arkansas for a county, and given the powers usually incident to corporations, including the power to condemn land for levee purposes, employ engineers, attorneys, amt other agents, make contracts for work, and take bonds from the contractors, and fix the rate of taxation for levee purposes within their district, constitutes a corporation, with power to sue and be sued, although not in express terms'declared by the act to be a corporation.</p> <p>2. Levees — Right to Compensation for Lands Taken or Injured — Law of Arkansas.</p> <p>Whether or not there exists a servitude upon the lands bordering on the Mississippi river within all the original Louisiana territory which authorizes the taking of land for a public levee without compensation (a question not decided), it has never been the policy of. the state of Arkansas to claim or exercise such right, and it cannot be asserted in a federal court by a board of levee inspectors created by the legislature of that state by an act which provides for the payment of compensation for lands so taken.</p> <p>•3. Same — Taking Earth and Timber for Repairs — Right of Owner to Compensation.</p> <p>A levee board, in taking earth and timber from land of an individual owner for the repair of a levee previously constructed, acts in its corporate capacity and within its powers, although there is no statutory provision for such taking; and the board is liable in such capacity, under the constitution of Arkansas, for just compensation to the landowner for so much of his property as was “taken, appropriated, or damaged.”</p> <p>4. Eminent Domain — Damages for Property Taken — Benefits.</p> <p>General benefits resulting to a landowner in common with others from a public improvement are not to be taken into consideration, as against the value of his property taken or destroyed in making such improvement.</p>

This was an action to recover damages for the death of plaintiff’s intestate, based upon 1he ground that the injury which resulted in death was caused by the wrongful act and negligence of the defendant. The injury was sustained on a public landing in the city of Cincinnati, on the morning of September 10, 1805, at 6:50 a. m. This public landing is an open space on the river front, and is a large landing; equal in dimensions to about two ordinary city blocks.

In Equity. This was a bill in equity by William A. Hicks, as trustee in bankruptcy of Albert Knost and Arnold Wilbelmy, late partners under the firm name of Knost & Wilhelmy, against Bertha Knost.

<p>In Bankruptcy. On review of rulings of referee.</p>

Appeal frqm the. District Court of the United States for the Southern District of Illinois. In bankruptcy. On August 11, 1898, the bankrupts, who are surviving partners of Levi H. Henry, deceased, doing business as the Bank of Waverly, in the Southern district oí Illinois, made a voluntary assignment for the benefit of their creditors, under the statutes of the state of Illinois (2 Starr & 0. Ann.

In Bankruptcy. On review of rulings of referee in bankruptcy. The referee in bankruptcy found as follows: (1) That on the 12th of December, 1898, the said Gerson Richard was insolvent; his property not being sufficient in value to pay one-half of his indebtedness.

<p>In Bankruptcy. Submitted on certificate from William A. Ladd, referee in bankruptcy.</p>

Appeal by (he United States from a decision of the board of general appraisers, which reversed the action of the collector in the assessment of duty upon the merchandise in question.

<p>Appeal by the importers from a decision of the board of general appraisers, which sustained the action of the collector of customs in assessing duties upon the importations,in question.</p>

<p>Appeal by the importers from a decision of the board of general appraisers which sustained the action of the collector of customs in assessing duties upon the merchandise in question.</p>

<p>Customs Duties — Classification—-Pearl Scales.</p> <p>Strips of pearl, commonly called “pearl scales” or “stock pearl,” chiefly used for knife handles, but also used on fans, opera glasses, button hooks, and for inlaid work, are dutiable under paragraph 450 of the tariff act of 1897, as “manufactures of mother-of-pearl, not specially provided for,” and not under paragraph 153, as “parts of knives, wholly or partly manufactured.”</p>

Appeal by the importers from a decision of the board of general appraisers which sustained the action of the collector of customs in assessing duty upon the importations in question.

Appeals by the United States from decisions of the board of general appraisers which reversed the action of the collector of customs in assessing duty upon the importations in question.

This is an action brought by the plaintiff against the defendant, as collector of internal revenue, to recover the amount of a tax assessed against, and collected from, the plaintiff, as a retail dealer in oleomargarine, by the defendant. The pláintiff insisted that he was not liable to the tax, and paid the same to the collector under protest.

In Equity. Thjs was a suit in equity by the Dennison Manufacturing Company against the Thomas Manufacturing Company for alleged infringement of trade-marks, and for unfair competition in trade. Heard on demurrer to bill.

The appellee, the Elgin National Watch Company, filed its bill in equity in the court below, selling forth that it was a corporation organized under the laws of the state of Illinois, and having its principal place of business at Elgin, and its office at Chicago, in that state; that the defendant, the Illinois Watch-Case Company, is a corporation created and organized under the laws of the state of Illinois, and having its principal place of business at Elgin, in that state;…

<p>This is a suit in equity by the Mesinger Bicycle Saddle Company against Humber & Co. for infringement of a patent.</p>

<p>1. Design Patents — Infringement.</p> <p>Where- the similarity of appearance between designs for bicycle saddles was due rather to the general similarity of such saddles than to the particular similarity between the two saddles in question, and the patent was not of a fundamental character, held there was no infringement.</p> <p>2. Same — Bicycle Saddles.</p> <p>The Mesinger patent, No. 25,423, for a design for a bicycle saddle having a centrally disposed opening upon which are displayed lines extending “both at right angles and diagonally to each other, said lines being interwoven, as shown,” construed, and held not infringed.</p>

<p>1. Shipping — Injury to Cargo — Seaworthiness—Effect of Harter Act.</p> <p>Section 3 of the Harter act (2 Supp, Rev. St. p. 81) does not relievo the owner from the duty of furnishing a seaworthy vessel at the beginning of the voyage, nor affect his liability for damage to the cargo arising from unseaworthiness, but only exempts him from liability for damage arising from the risks therein designated when due diligence has been used to make the vessel seaworthy, etc. There is no expressed intention in the statute to replace the carrier’s obligation under the general maritime law to furnish a seaworthy vessel by the less extensive obligation to exercise due diligence to that end, and it cannot be extended by construction beyond its terms.</p> <p>2. Same — Fault in Management of Vessel.</p> <p>After a vessel had been out of port only four or five days, and had encountered no severe weather or known accidents, both covers of one of her ports were found to be open, and water had entered and damaged cargo in the compartment into which the port opened. Neither the covers nor tlio surroundings of the port were injured, and the hatches had been battened down since the beginning of the voyage. Held, that neither evidence that the vessel was inspected the day before sailing, and the port believed to be closed, nor even the positive testimony of witnesses that the covers were closed and screwed fast when the vessel sailed, was sufficient to establish such fact? but that, under the rule laid down in The Sylvia, 19 Sup. Ct. 7, 171 TJ. S. -t(>2, the condition of the port did not render the vessel unseaworthy, and the failure to close it before the injury was received by the cargo was a fault or error in the management of the vessel during the voyage, for which the owners are relieved from liability under section 3 of the Harter act.</p>

In Admiralty. The steamer Evangel having been sold under a decree in admiralty to satisfy maritime liens, and said liens having been paid from the proceeds of the sale without exhausting the fund, the case came on to be heard upon questions as to the disposition to be made of the surplus and remnants.

<p>1. Maritime Liens — Repairs in Foreion Port.</p> <p>Where repairs are made in a foreign port hy order of the managing owners, the presumption is against the existence of a maritime lien.1</p> <p>2. Bajii-, — Evidkni i .</p> <p>The refusal of the managing owners to pledge their personal credit for repairs does not justify an inference of the existence of a maritime lien, where the repairer agrees to accept payment out of the earnings of the vessel as they accrue.</p>

This was a suit in admiralty to recover for services rendered for procuring a contract of affreightment for a vessel owned by respondents.

The Marine Insurance Company, Limited, of London, England, the appellee, libeled the Canadian steamer Arabian, in the Fifth division of the United States district court for the district of Minnesota.

Suit in equity against the holder of a United Btates patent for land, of which the plaintiffs claim to be the equitable owners, for a decree directing a conveyance of the legal title, and to cancel a mortgage given by the patentee.

<p>1. Preliminary Injunction — Nature op Evidence before Granting.</p> <p>The granting of a provisional injunction rests in tlie sound discretion of tlie trial court, and it is not necessary that the court should, before granting it, he satisfied, from the evidence before it, that the plaintiff should certainly prevail upon the final hearing of the cause.</p> <p>2. Municipal Corporations — Mode op Granting Franchises and Privileges —Statutes op California.</p> <p>St. Cal. 1898, p. 299, § 1, prescribing the manner in which franchises and privileges shall be granted by municipalities, and providing that they shall be granted in the manner therein provided, “and not otherwise,” is applicable to the sale of th^ franchise in this case.</p> <p>3. Same — Power to Make Sanitary Regulations — Contracts for Cremation of Garbage.</p> <p>Under the constitution and statutes of California, the board of supervisors of the city and county of San Francisco has power to provide for the removal and disposition of garbage and materials about to become nuisances, and may do so by contract giving the exclusive privilege of receiving and cremating such garbage for a term of years to a single person or corporation, and authorizing the collection of a fixed charge therefor.</p> <p>4. Preliminary Injunction — Restraining Interference with Contract.</p> <p>The holder of a contract from a municipality giving it the right to receive and reduce all the garbage therefrom for a term, of years, at a fixed charge therefor, on a showing that in compliance with such contract it has built a crematory at large expense, is entitled to a preliminary injunction against third parties, restraining them from collecting and removing garbage to other places, in violation of its contract rights, pending . a he'aring on its bill for the recovery of damages and for á permanent0 injunction.</p>

<p>In Equity. On motion for the appointment of a receiver.</p>

<p>This was a suit in equity for the specific performance of a contract to convey real estate and to recover damages for its breach.</p>

<p>1. National Banks — Insolvency—Trust Funds.</p> <p>A national hank received funds of a school district which it had no right to receive as an ordinary dejiosit, or to mingle with its own funds, and which it undertook to hold for the special purpose of paying certain bonds of the school district, and no other. It did in fact mingle the funds with its own, and became insolvent, none of the bonds having been presented for payment. It had on hand, at the time it suspended business, cash in excess of the amount of such deposit, which came into the hands of its receiver. Held, that such deposit constituted a trust fund, which was recoverable by the school district from the receiver; the presumption being that so much of the cash on hand as equaled the deposit was the money of the school district.</p> <p>2. Same.</p> <p>Neither a bank nor its receiver can deny the receipt of money deposited with the bank as a trust fund on the ground that no money was actually deposited, where it received and accepted credit for the amount with a correspondent, and received the money thereon in dne course of business.</p> <p>8. Same — Claims Disallowed by Receiver — Interest.</p> <p>No interest is recoverable against the fund in the hands of the receiver of an insolvent national hank on recovery in a suit to establish a claim against the bank, made necessary solely by the disallowance of the claim by the receiver. The receiver is required to exercise his judgment as to the allowance of claims, and other creditors are not chargeable with interest because of an error on his part.</p>

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

<p>1. Public Lands — Control op Disposition — Powers op Congress.</p> <p>The paramount control over the disposition of the public lands of the United States remains in congress, and the fact that a contest over the ,right of entry of such lands is pending before the land department, a creation of congress, and not of the constitution, does not deprive congress of such paramount control, and it may at any time, by an act passed for that purpose, withdraw such contest from the jurisdiction of the department and itself determine the rights of the parties.</p> <p>2. Same — Decision op Contest by Secretary — Right op Successor to Annul.</p> <p>A secretary of the interior has no power to annul a decision of his predecessor which determines the rights of the parties to a contest for entry of public lands; such determination being a judicial act, which can only be reviewed by the courts.</p> <p>8. Same — Contest op Entry — Rights op Contestant.</p> <p>Section 2 of the act of May 14, 1880 (21 Stat. 140), giving a contestant who has paid the land-office fees and procured the cancellation of a prior entry of public lands a preferred right to enter the same, gives such contestant no vested rights in the land until the cancellation of the existing entry; and hence, where the decisions of the land officers, so far as a contest had progressed, were adverse to the contestant, and' during the pendency of the proceedings congress deprived the land department of further jurisdiction by the passage of a special act confirming the title of the entryman, the contestant acquired no vested rights in the land which a court can recognize or enforce.</p> <p>4. Same — Payment op Contest Fep.s.</p> <p>The payment of contest fees and costs by a contestant of an entry ■ of public land gives him no right in the land, unless the contest results in the cancellation of the prior entry.</p>

<p>Railroad Foreclosure — Sales Subject to Claims against Receiver.</p> <p>Where a decree for the sale of railroad property in a foreclosure suit contains an independent and unconditional provision that the sale shall be subject to all current liabilities of the receiver, the purchaser takes the property subject to such condition, without regard to the question of priority between such liabilities and the liens under which the sale is made.</p>

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

In the matter of the intervening petition of Mark T. Cox, Arthur P. Sturges, and William Church Osborn. .

<p>1. Creditors’ Suits — Right to Maintain.</p> <p>Simple-contract creditors cannot come into a court of equity to obtain a seizure of property of the debtor in satisfaction of their claims.</p> <p>2. Same — Following State Practice.</p> <p>This is so though a statute of the state may authorize such a proceeding in a state court.</p> <p>3. Same — Dismissal Without Prejudice.</p> <p>When a simple-contract creditor files a creditors’ bill, the dismissal should be without prejudice.</p> <p>4. Same — Modification op Decree on Appeal.</p> <p>When a decree dismissing a bill absolutely is erroneous, in that the dismissal should be without prejudice, the court will modify it on appeal, though complainant does not urge the error.</p>

<p>t)u Motion by Defendant for Judgment Notwithstanding the Verdict.</p>

This is an action brought by the plaintiff in error against the J. B. Donnally Company, Limited, and the defendant in error, on a bond of insurance or indemnity. The said plaintiff in error had judgment against the J. B. Donnally Company, Limited, for $6,634.15; but the circuit court directed a verdict for the defendant in error, and judgment was rendered in its favor.

<p>Boundaries — Riparian Owners on Cove or Bat — Frontage on Line of Navigable Water.</p> <p>Under the rule that the frontage of a riparian owner on the line of navigable water within a small bay or cove shall bear the same ratio to his shore frontage as the entire length of the line of navigable water within the cove bears to its shore line, a court cannot declare the boundary between two adjoining owners on the line of navigable water as a matter of law, where the evidence as to the limits of the cove is conflicting; and in such case there is sufficient uncertainty, so that the boundary may be fixed by the agreement or acquiescence of the parties.</p>

<p>Í. Sunday Contract — Validity as to Third Parties — Effect of Ratification.</p> <p>A debtor cannot defeat the collection of a valid debt by an assignee, on the ground that it was sold and assigned to him on Sunday, in violation of the laws of the state, where the transfer was subsequently ratiiied by the assignor, and became binding between the parties to it; and such ratification renders it valid from the date of the actual assignment for the purpose of an attachment thereon procured by the assignee on that day.</p> <p>8. Jurisdiction of Federal Courts — Amount.in Controversy.</p> <p>Where an action in a federal court is based on several accounts, exhibited with the declaration, the amount of the accounts in the aggregate is the amount in dispute, and, when it exceeds 82,000, the court is not deprived of jurisdiction, though the defendant successfully attacks the validity of the transfer of one of the accounts to the plaintiff, reducing the amount remaining below the jurisdictional limit.</p>

<p>1. Insurance — Action on Accident Policy — Evidence.</p> <p>The Pennsylvania act of May 11, 1881, which provides that no application or constitution or by-law of the company shall he admitted in evidence as part of a contract of life, or lire insurance, or as having any hearing thereon, unless a copy thereof shall have been attached to the policy, does not apply to contracts of accident Insurance.</p> <p>2. Review — Harmless Error.</p> <p>A judgment will not he reversed on account of the erroneous exclusion of evidence which was merely cumulative, and where the fact sought to he shown thereby was proved by other evidence without dispute, and properly submitted for the consideration of the jury.</p>

<p>1. Railroads — Obstruction on Track — Nkghgenoe.</p> <p>A rock weighing some 200 tons, which was embedded in the face of the slope of a, railroad cut along- the side of a mountain, slid from its place, in the night, upon the track, and an engine attached to a train, coming in collision with it, was wrecked, and the engineer killed. The cut was through a formation known as “slide,” consisting of loose boulders embedded in clay or gravel and the slope stood at an angle of about <15 degrees. The road had been built about eight years, during which time no change liad been made in the slope, and the only inspections had been made by observations from passing trains or hand cars. The bank was regarded as safe by the company’s engineers. There had been no recent rains, and no night patrol of the cut was being made at the time. Held, in an action against the railroad company to recover for the death of the engineer, that such facts did not warrant a peremptory instruction for the defendant, but that the question whether it had exercised ordinary care to construct and maintain its track in a reasonably safe condition was one for the jury.</p> <p>2. Damages — Action for Wrongful Death — Evidence in Mitigation.</p> <p>In an action for wrongful death the defendant is not entitled to prove in mitigation of damages that plaintiff has received insurance on the life of the deceased from a collateral source wholly independent of defendant.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This is a writ of error by the defendant in the court below to review a judgment for the plaintiff, the action having been brought upon a judgment in favor of the plaintiff and against the defendant rendered by the circuit court of the United States for the Eastern district of Tennessee.</p>

<p>Evidence — Shifting Burden of Proof.</p> <p>Where a defendant in an action on a policy of life insurance pleads as a defense ihat the insured committed suicide, by reason of which the policy became void, the burden of establishing such defense rests npon the defendant throughout the trial. The fact that the plaintiff introduces in evidence the proofs of death furnished the defendant, containing the statement that the insured committed suicide and the verdict of a coroner’s Jury to that effect, while such evidence is entitled to its weight, and, standing alone, -would establish the fact of suicide prima facie, does not shift the burden of proof on the issue, so as to require the plaintiff on the whole case to prove, by a preponderance of evidence, that death resulted from other causes.</p>

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

<p>1. Highways — Determination or Necessity by Courts — Validity op New York Statute.</p> <p>Laws N. Y. 1892, c. 493, providing for the extending of highways in one town into or through other towns in the same county, was not in violation of the state constitution because it conferred on certain courts of the state the power to determine the necessity or expediency of such extensions, the highest court of the state having upheld the exercise of such powers by the courts in numerous analogous cases arising under the same constitution.</p> <p>2. Municipal Bonds — Irregularity in Issuance — Bona Fide Holders.</p> <p>The fact that the municipal authorities gaye a credit to the purchaser of the bonds of a town, instead of selling them for cash, as required by the statute, is not a defense to an action on such bonds by a subsequent bona fide purchaser.</p>

Action at law to recover damages for a personal injury, commenced in the superior court for the state of Washington, and removed to the United States circuit court by the defendant the Oregon Eailroad & Navigation Company on the ground of a separable controversy. Heard on motion to remand.

In Error í o the Circuit Court of the United States for the Western District of Missouri. These were three actions for libel. The defendant In error, Harold Carlisle, was a merchant, living with his wife, in Kansas City, in the state of Missouri, where he had resided for more than two years, on February 20, 1897. He was 44 years old, and had a good reputation for honesty and integrity.

<p>1. Master and Servant — Injury of Railroad Employe prom Defective Cars — Ohio Statute.</p> <p>Section 2 of the Ohio act of April 2, 1890 (87 Ohio Laws, 149), which makes it unlawful for any railroad corporation to knowingly or negligently uso or operate any car that is defective, or upon which any attachment is defective, makes no distinction hot ween the cars owned by the corporation and foreign cars which it may operate, and the duty of proper inspection applies equally to both; and under the further provisions that, if any employe shall receive an injury by reason of any defective aliaohmem, the company shall be deemed to have had knowledge of the defect, and proof of the defect and injury shall be prima facie evidence of its negligence,' as construed by the supreme court of the state, to overcome the presumption of knowledge on tile part of the company, raised by the statute on such proof, it is not sufficient to prove that the company furnished a sufficient and competent inspector, but actual and proper inspection, or its equivalent, must be shown.</p> <p>2. Same — Duty of Railroad Company to Inspect Foreign Cars.</p> <p>As a, matter of general law, independently of statute, a railroad company owes to its servants engaged in handling or operating foreign ears on its road the legal duty of not exposing them to dangers arising from defects which might be discovered by reasonable insjiection before they are admitted into its trains, and for the negligence of an inspector in that regard the master is responsible.</p> <p>8. Same — Sufficiency of Inspection.</p> <p>A mere visual inspection of the grab irons constituting the ladders on cars, which brakemen are required to use more or less while the cars are in motion, cannot be held, as a matter of law, to be a sufficient inspection; and whether an inspection made was in fact a reasonable and sufficient one is a proper question for the jury.</p> <p>4. Same — Action for Death op Brakeman — Trial.</p> <p>In an action against'a railroad company to recover for the death of a brakeman, caused by the breaking from the car of a handhold forming part of the ladder upon which he was descending from a moving car, the testimony of an inspector that he inspected the car on the day before the accident by climbing up the ladder at one end and down that at the other is insufficient to warrant a peremptory instruction for the defendant. where the evidence disclosed that the iron was held to the car at one end only by a piece of a rusted screw half an inch long and imbedded in rotten wood.</p>

This is a suit wherein the Central Trust Company of New York, the defendant in error, hereafter termed the “Trust Company,” sued John C. Hubinger, the plaintiff in error, in an action which is essentially an action at law to recover damages for the wrongful disposition and destruction of property which at one time constituted an electric street-railway plant in the city of Keokuk, Iowa, the same being the property of the Gate City Electric Street-Railway Company.

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

<p>1. Bankruptcy — Dissolution of Lubns — Possession of Property under Levy.</p> <p>Where actions are begun in a state court, a.nd writs issued and levied on property of an insolvent debtor, within four months before the institution of proceedings in involuntary bankruptcy against him, the trustee is entitled to recover possession of such property from the sheriff holding the same under the levy, notwithstanding the pendency of an action of replevin in a state court against the sheriff by a stranger claiming ownership of the property; and the court of bankruptcy has jurisdiction to order the surrender of the property on summary petition by the trustee.</p> <p>2. Same — Sherike's Fees.</p> <p>A sheriff, holding property of an involuntary bankrupt under writs levied within four months before the commencement of the proceedings in bankruptcy, lias no right, as against the trustee, to retain possession of the property unlil payment of his fees. Such fees are taxable in the court from which (he writs issued, and, when there taxed and allowed, may be made the basis of a claim in the court of bankruptcy.</p>

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On report of referee in bankruptcy.</p>

In Equity. Motion to dismiss the bill on the ground that this court has no jurisdiction of the action, which is brought by a trustee in bankruptcy to set aside an alleged fraudulent transfer by the bankrupt of his property. All the parties are citizens of this state and reside in this district.

.Petition for Revision of Decision of the District Court of the United States for the Northern Distinct of Georgia. H. A. & B. T. Camp were duly declared bankrupts as a partnership and as individuals. T. V!. Zellars was appointed trustee of the estates of said bankrupts.

<p>In Bankruptcy. On review of ruling of referee.</p>

r the Middle District of Alabama. Willis Y. Bell, the appellee, resides in Montgomery county, Ala.

In Bankruptcy. On review of an order of tbe referee in bankruptcy directing the payment pro rata of certain labor claims against the estate of the bankrupt, and denying priority of payment to such of the said claims as were secured by a lien created and perfected according to the statutes of the state.

<p>Customs Duties — -Acids—Coal-Tar Preparation.</p> <p>A coal-tar preparation, not a color or dye, from wliieli crystal carbolic acid is made by “refining,” and wbicli is employed in tbe manufacture of disinfectants and some kinds of soap, is admissible free from duty, as an acid, witbin Act Oct. 1, 1800, par. 473, wbicb relates to “acids used for medicinal, chemical, or manufacturing purposes,” and not dutiable under paragraph 19, which relates to “all preparations of coal tar, not colors or dyes, not specially provided for.”</p>

This is an appeal by the importers from the decision of the board of general appraisers holding certain imported merchandise to be dutiable.

<p>Aliens — Deportation of Chinese.</p> <p>A Chinese person, not a laborer, who has come here with a certificate properly signed and vised, and after examination, has been permitted to enter the United States and has engaged in business here as a merchant for 17 months cannot, in the absence of fraud, be deported, on the ground that, the certificate is incomplete and defective in matters of nomenclature and description. j</p>

<p>Aliens — Deportation of Chinese — Evidencie of Citizenship.</p> <p>In proceedings for the deportation of Chinese persons whose right to remain in this country rests solely on a claim that they were horn in 1he United States, the testimony of their alleged father, shown by other Chinese witnesses to be inconsistent with previous statements made by him, which statements he denies having made, is not alone sufficient to establish such claim to citizenship.1</p>

<p>This is an appeal by the defendant from an order of deportation made by a. commissioner.</p>

<p>This was an appeal by defendant from an order of deportation made by a commissioner.</p>

<p>These were appeals by defendants from orders of deportation made by a commissioner.</p>

<p>1. Chinese Exclusion Act-Persons Born in United States.</p> <p>A person horn in this country of Chinese parents, who are permanently domiciled here, though aliens, is a citizen of the United States, and cannot he excluded therefrom or denied the right of entry. 1</p> <p>a Same — Habeas Corpus Proceedings — Sufficiency of Evidence.</p> <p>In habeas corpus proceedings brought by a Chinese person claiming the right to enter the United States from China, on the ground of being a citizen of this country by birth, the court is not bound to accept the testimony of the petitioner’s witnesses as conclusive, though uncontradieted, and where in such a case it appeared that petitioner, a girl 20 years old, had resided in China for 17 years, and the testimony as to her identity with the person claimed to have been born here was inconclusive or improbable, the finding of the court and its referee, who heard the witnesses, will not be disturbed on appeal.</p>

<p>1. Copyright — Suit for Infringement — Damages.</p> <p>In an action for damages for infringement of a copyright by the publication in a newspaper article of matter taken from a pamphlet copyrighted by plaintiff, the chief purpose of which was to advertise his business as a photographer, and of which a large number of copies had been distributed free, but.none had ever been sold or offered for sale, and where the evidence leaves it doubtful whether the pamphlet has any commercial value, the court cannot determine plaintiff’s loss on account of the publication with sufficient certainty to warrant a judgment for substantial damages.</p> <p>2. Same — Prior Publication.</p> <p>Giving away copies of a pamphlet by the author, or leaving copies in a public hotel office, constitutes 'a publication which renders a subsequent copyright ineffectual.</p>

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

<p>1. Jurisdiction of Court — Partnership Named as Plaintiff.</p> <p>The introductory part of a bill was as follows: “The Fruit-Cleaning Company, a co-partnership consisting of [three persons, named in full], doing business at the city of Brooklyn, in tlie state of New York, complainant, brings lliis, its bill of complaint,” etc. The bill further alleged that, “at all the times hereinafter mentioned, the said [naming such three persons] were and are co-partners in trade under the Ann name and style of the Fruit-Cleaning Company, having its principal place of business at tlie City of Brooklyn, in the state of New York.” Held that, while tlie co-partnership was named as tlie complainant, tlie bill sufficiently disclosed the real parlies in interest, and therefore should not be dismissed, a Her answer, on the ground that there was no legal party plaintiff sufficient to give Ihe court jurisdiction.</p> <p>2. Patents- Partnership as Patentee — Validity.</p> <p>A co-partnership, to which an invention has been assigned, possesses legal capacity to take tlie legal title to a patent when issued; and lienee a patent issued to tlie co-partnership, as patentee, is valid, and confers the exclusive right to the invention.</p> <p>3. Same —Invention—Commercial Success.</p> <p>Though one follows tlie general ideas of a patent issued many years before, yet if, by adding thereto other devices, he produces the first machine, which, in a commercial sense, successfully performs the work sought io be done, he is entitled to a place among inventors.</p> <p>4. Same,,-Construction of Claims — Reference to Specifications.</p> <p>If a claim contain the phrase, “substantially as described” or its equivalent, Ihe entire specification is entitled to be considered in connection with the claim.</p> <p>5. Same— I n f hi no eme nt — M ecu axic al K quiv alents.</p> <p>In a raisin-seeding machine, a laminated rubber roll employed to force the fruit upon the teeth of a carrier is the mere mechanical equivalent of a brush roll, used for the same purpose, and its substitution therefor does not. avoid infringement.</p> <p>6. Same- Fruit or Raisin Herders.</p> <p>The I.a Due patent, No. 513,834, for a fruit-seeding machine, adapted especially to the seeding of raisins, construed, and held not anticipated, valid, and infringed, as to claims 1, 2, 3, 4, and 5, by the Cox patent, No. 608,108, and not infringed as to claims 6, 7, and 8.</p>

<p>Ou Motion to Punish for Contempt in Disobeying Injunction.</p>

<p>1. Patents — Infringement jsy Improvers.</p> <p>An improvement may be itself patentable, but tlie inventor of the improvement acquires no right to appropriate the mam inveiuiou to which his improvement relates; and it is of no consequence that a patented article bo so dealt with as to impair its usefulness, if its essential features be still retained.</p> <p>2. Same — Introduction of Evidence.</p> <p>The defendant should complete his evidence with respect to the state of the art before the taking of complainant’s testimony in rebuttal, and any additional testimony and exhibits thereafter taken, even for the sole purpose of narrowing the claims, will be suppressed on motion.</p> <p>3. Same — V aridity and Infringement — Spring-Tooth I'arrows.</p> <p>The Smith patent, No. 522,4.95, for improvements in spring-tooth harrows, construed, and held valid and infringed as to claims 1 and 2.</p>

This was a suit in equity by the Westinghouse Electric & Manufacturing Company against the Catskill Illuminating & Power Company for alleged infringement of certain patents.

On or about March 8, 1808, William Henderson, appellee, was shipped at New Orleans, La., as a seaman in the service of the steamboat Lafourche, for a voyage to Thibodaux, La., in Bayou Lafourche, and return to New Orleans, at the wages of §80 per month and found. The boat made the outward trip with libelant in the service thereof.

District Court of the United States for the Eastern DLskic.t of Louisiana. From April, 1898, to the 22d day of September, 1898, the steamboat Liberty, owned by VT. P. Auc-oin and J. P. UfoKtroy, resident citizens of the state of Louisiana, with headquarters at New Orleans, was running In the Bayou Lafourche irado, making frequent short trips, wholly within the state of Louisiana.

These are cross appeals from a decree of the district court (88 Fed. Bol) holding the libelants entitled io recover the equivalent of 250 francs apiece. The facts sufficiently appear in the opinion. Roger Foster, for libelants.

This was a libel in admiralty by Ihe owners of the steamer Benton against the Combination Bridge Company to recover for the loss of Lite boat. Heard on pleadings and proof.

<p>This was a suit in rem to recover damages for collision.</p>

In April, 1893, Tí. W. Austin, as receiver of the First National Bank of Sheffield, Ala., filed his bill'of complaint in ihe United States circuit court for the Northern district of Alabama against tlie Alabama Iron & Kailway Company.

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p> <p>On October 12, 1892, Joseph W. Reinhart, Phillip Van Volkenburgh, and others, citizens of the slate of New York, filed their bill in equity in the circuit court of the United Stales for the Northern district of Georgia. The bill was brought for the complainants named in the bill, and such others as might thereafter be joined as complainants. The bill averred that the Augusta Mining & Investment Companj, incorporated under tlie laws of the state of Virginia, owes the complainants certain promissory notes, due on demand, for money loaned said corporation to enable It to carry on its business in Polk county, Ga.; that payment of the notes had been refused, the corporation alleging as a reason for the refusal lack of money to pay the notes, or any part of them; that, in addition to said notes, said corporation -was largely indebted to other parties, its principal indebtedness being the sum of $400,000 of first mortgage bonds, the majority of ■which is held and controlled by the complainants; that, while said bonds were not yet due, complainants believed and charged that there was great danger, owing to the character and condition of the assets of the corporation, and its inability to properly operate and carry on its business, on account of financial embarrassments, that it would not be able to pay the bonds when they became due; that but recently before the filing of the bill the corporation, being in need of funds to pay its current expenses, and to meet its obligations, which amounted to $75,000, issued debenture bonds for $75,000, the principal creditors of the corporation agreeing to take said bonds in payment of their claims, and the complaifaants hold, as such creditors, a majority of said debenture bonds, to wit, $40,000; that the interest due on said debenture bonds was not paid by the corporation, because of its inability to pay the same; that the corporation was largely indebted over and above the items of indebtedness above set out; that the corporation was the owner of large quantities of ore lands situated in the states of Virginia, Alabama, and Georgia; that said ore lands were very valuable, if the same could be fully equipped and operated, but that the defendant corporation was .operating only three of its ore plants, and had equipped another, and was preparing to operate the same; that, while it was true that the above property was valuable, yet that its value was less than the indebtedness of the company, and, if permitted to be brought to a forced sale or placed upon the market, it would be greatly sacrificed, and would not realize enough to pay any of its indebtedness; that not only was this true, but that the defendant had not been able to earn its fixed charges and operating expenses, but said charges and expenses had been allowed to accumulate until the corporation had become insolvent, and, unless its property and assets were, taken in charge by a court of equity, the complainants and other creditors would not receive payment of their debts; and that, even under the best management, it was very doubtful if the corporation could meet its liabilities, and especially would this be true if the defendant were not protected from vexatious litigation and attachments, and other proceedings which were then threatened against it, the effect of which would be to entirely destroy all prospects for the payment of the complainants’ claim then due, and the utter ruin of the only security which the complainants hold, being first mortgage bonds and debenture bonds. The complainants, in their own behalf, and in behalf of such other creditors as might become parties to the bill, prayed that the corporation might be brought to sale, or that if it should be deemed advisable, on account of the peculiar nature and character of the property, and on account of the fact that some of the débts were due and some not due, that no sale of the property should be had, but that the property should be kept together and operated by a receiver, and the profits of such business should be applied to the payment of the complainants’ debts and such other debts as might be due, and the corpus maintained intact for the payment of the debts not due, then the complainants prayed that the court might decree accordingly. They prayed further for the appointment of a receiver to take possession of the property, with the usual powers of receivers in such cases, with the power to manage and operate all of the ore banks then equipped and in operation, and with power to equip and operate more if it should be deemed advisable, and receive all the earnings and income thereof during the pendency of the suit, and with such other powers as should seem to the court right and proper.</p> <p>On the same day on which the above bill of complaint was filed, to wit, on October 12, 1892, Charles W. Haskins was appointed temporary receiver, the defendant corporation consenting to the appointment. The receiver was directed by the order appointing him to take possession of all the property of the corporation, with power as prayed for in the bill of complaint, and to manage, operate, and maintain the several ore banks, with authority to employ officers, employ^, and workmen, to keep the property equipped and in operation, and to collect all rents and revenues derived from the property over and above all expenses and liabilities authorized by the order of appointment. The receiver was specially authorized to pay all necessary and current expenses in the operation of the ore banks. It was also ordered that the debts for labor and for supplies and materials done or furnished since July 1,1892, be paid by the receiver. The above order of October Í2, 1892, -was maño on the motion of complainants. On Ge-mina.- 19, 1892, tlu; receiver reported to the court that by the order appointing him he was authorized to pay for materials and supplies furnished to the company, and wages ¡'or labor, since July 1, 1892, but that on account of extraordinary work done by Use company, in building a railroad from the company’s property to the blast & West Kailway, he had not sufficient funds in hand to pay all these expenses covered by the court's order; and the receiver therefore asked that he be authorized and empowered to borrow not more than $12,000, or such part thereof as might be necessary, upon his note, or notes, drawing not more than 8 per cent, interest, and (ho notes extending for a period not exceeding 12 months, — the receiver to report his action in the premises to the court. Upon this application, the court, on October 19, 1892, with the consent of the complainants, made an order authorizing the receiver to borrow not exceeding $12,-000, under the terms and for the purposes set forth in the application. On October 81, 1892, on the motion of the complainants for the apt ¡ointment of a, permanent receivin', the defendant corporation consenting, the court appointed Oharlr-s W. Haskins as permanent receiver. Amongst other tilings, the order provided that: “It is further ordered, in addition to the powers heretofore vested in said receiver by the orders of this court, that he is hereby authorized to pay out of such fund, as such receiver, that may come into his hands, from the earnings and income of the irroporty, or that he has boon or may be authorized by this court, to borrow for such purposes, all the debts due for labor and wages and for materials and supplies done and furnished to said defendant corporation Cor six months prior to his appointment as receiver. * * * It is further ordered that all matters and things set forth in the order appointing said Haskins temporary receiver, and also in the order heretofore granted by the court authorizing said receiver to borrow money for the purposes set forth in said order, be, and the same are hereby, ratified and reaffirmed, and made a part of this order, in so far as they are appropriate and proper.” On the 31sl of May, 1893, the Manhattan Trust Company filed its bill of complaint in the United Stales circuit court for the Northern district of Georgia. Tt alleged that it was the trustee of a mortgage executed by the Augusta Mining & Investment Company to secure an issue of $89(5,000 of first mortgage bonds: that the defendant corporation had made default in the payment of interest due upon the bonds; that by reason of such default the bonds had become due, under the terms of the mortgage; and that the complainant was entitled to a foreclosure of the same. The bill made special reference to the bill of complaint filed on October 12, 1892, by Joseph W. lieinhart and others, which has already been stated. Special reference was also made to the appointment of Ilasliins as receiver, and to the above-mentioned orders of court concerning said receiver. The bill alleged that the earnings of the Augusta Mining tk. Investment Company for the past year had been, and still were, greatly inadequate to meet and discharge the accruing obligations of interest upon its bonded indebtedness, or the payment of its current expenses, charges, and indebtedness. The bill also averred that said corporation was wholly insolvent. The bill prayed for the appointment of a receiver to the property of the corporation, and for the foreclosure of the mortgage.</p> <p>On Maj 31, 1898, a motion for the appointment of a receiver on the1 bill of complaint of the Manhattan Trust Company, or to extend the receivership in the cause in which -Reinhart and others were complainants, came on to be heard before the court; and, on the motion of counsel for the Manhattan Trust Company, it was ordered that the receivership of the property of the Augusta Mining & Investment Company, theretofore made, by the appointment of Haskins as permanent receiver, be extended to the second cause, and that ITaskins be appointed and continued as receiver in the second cause, with all the rights and powers as such receiver in the second cause which were conferred upon him under the said decrees of the court entered in the suit by ¡Reinhart and others, of date October 12, 1892, and October 31, 1892, respectively. Subsequently, on motion of the attorneys for the complainants in the above causes, the attorneys for the defendant consenting, the two causes were consolidated, and it was agreed that the final decree be taken in said causes as consolidated. On January 23, 1895, the decree of foreclosure was signed. The decree fixed the amount which the defendant corporation should pay into the registry of the court to prevent foreclosure, and classified the same as follows: “First, a sufficient sum of money to cover the expenses of the receiver,ship, including obligations and debts incurred by the receiver under the order and direction of the court, and the compensation of the receiver and his counsel, and any other preferential claims and debts that may be allowed by the court to parties to this cause, and the court costs;” second, the expenses of complainants, including counsel fees; third, the amount of the mortgage bonds. In case these amounts were not paid, the decree provided that the property be sold, and also provided for the payment of: “First, all court costs, and the costs of the master commissioner in making the sale under the decree; second, the payment of the fees of the receiver of the property, find his reasonable attorney’s fees, to be fixed by the court, and all proper obligations incurred by him under the authority of the court, as the same shall be determined and allowed by the court.” On August 2, 1897, a master in chancery was appointed by the court to report, among other things, upon all debts and claims against the defendant corporation and the receiver which were alleged to be prior in rank to the bonds secured by the mortgage made to the Manhattan Trust Company as trustee. The master found and reported that all parties holding receiver’s certificates for indebtedness due by the Augusta Mining & Investment Company prior to October 12, 1892, have no priority over the mortgage bonds, but that all the debts contracted by the receiver since his appointment are entitled to a preference over the mortgage bonds. Joseph W. Reinhart, Phillip Van Yolkenburgh, and others, all alleging themselves to be bondholders of the Augusta Mining & Investment Company, excepted to that part of the master’s report which gave priority over the bonds to the debts contracted by the receiver since his appointment. The parties whose claims were postponed to the bonds by the master excepted to such postponement. No exceptions were taken by the Manhattan Trust Company. On February 28,1898, the court made a decree by which it confirmed the master’s report as to the debts which he had found to be prior to the mortgage bonds, but overruling the master as to the debts which he had found to be inferior to the mortgage bonds. The decree recited that: “The exceptions filed to the report of the master are overruled, except as hereinafter specified; and the report of the master, except as so specified, is hereby confirmed, and made the judgment and decree of the court. It appears from the report of the master that certain notes were made by the receiver, under orders of this court entered October 12,1892, and October 19,1892, in payment of debts against the Augusta Mining & Investment Company for wages of employes and for materials and supplies furnished to said company for six months prior to the appointment of the receiver, which notes are specifically set out in Schedule No. 3 of the supplemental report of the master. The master found in his report that these notes, made under said orders of this court, were not entitled to priority of payment over the bonds secured by the mortgage to the Manhattan Trust Company; and to this finding of the master each one of the parties holding said notes set out in Schedule No. 3, as above mentioned, filed exceptions.' It is ordered that the exceptions so filed be, and the same are hereby, sustained and allowed, and that the holders of said notes take precedence, as receiver’s expenses,.in the fund arising from the sale of the property described in the mortgage to the said Manhattan Trust Company. It is further ordered and decreed that the fund arising from the sale of the property be distributed according to the priorities set out and fixed in the original decree of foreclosure.”</p>

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

<p>Water Courses — Use oe Water for Mining Purposes — Enjoining Pollution.</p> <p>A company having the right to use the waters of a stream for placer mining cannot complain of an injunction restraining it from so using them as to render them unfit for use in supplying the inhabitants of a city for domestic purposes, where the injunction does not interfere with defendant’s use in its ordinary and accustomed manner.</p>

<p>Wills — Judgment in Probate Setting Aside Fund for Annuities — Res Judicata.</p> <p>Where, under a will directing the executors, as trustees, to retain in their hands a. sufficient amount of the property of the testatrix to produce certain annuities bequeathed t>y the will, the sole executor who qualified set aside for that purpose certain specific property, and his action in so doing was confirmed by a judgment of the surrogate’s court in proceedings to which all persons in interest were parties, the rigid of the annuitants to he paid their annuities from the income of such property thereby became res judicata, as between all parties thereto; and they could not be deprived of such right by a decree of another court, in a suit to which they were not parties, directing the trustee to transfer a portion of such property to another fund for the benefit of other legatees.</p>

<p>This is a suit in equity to enjoin alleged unfair competition in trade. On motion for preliminary injunction.</p>

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

<p>Municipal Corporations — Constitutional Limitation op Indebtedness — Contract for Water Supply.</p> <p>Under the constitution of Montana, which limits the indebtedness of municipal corporations, and provides that all obligations in excess of the amount so limited shall be void, a city not authorized by statute to levy and collect a special tax for water purposes, and which is already indebted beyond the constitutional limit, has no power to bind itself by a contract for a supply of water to be furnished for municipal purposes; and a claim accrued for water furnished under such a contract is within the constitutional prohibition, and cannot be enforced.</p>

<p>1. Appeal Bond — Place op Execution.</p> <p>An undertaking on appeal given to stay proceedings pending the appeal is not delivered, so as to become effective, until filed, and hence, though signed in another state, is “executed” in the state where filed.</p> <p>2. Limitation op Actions — Appeal Undertaking — Kppkct op Furtheu Appeal.</p> <p>The running of the statute against an action on an appeal undertaking given on appeal to tiie general term of the superior court, of the city of New York is not affected by the taking of a further uppeal from the judgment of the general term to the court of appeals.</p>

United States for the Southern District of California. Abner T. Bowen sued the Needles National Bank upon four pauses of action, the first, second, and third of which were upon bills of exchange for $8,775, $8,300, and $5,864, which it was alleged in the complaint were drawn by the defendant at its place of business in the state of California upon the Chase National Bank, of New York, and payable to the order of the plaintiff under the name of A. T. Bowen & Co., which bills…

<p>1. Public Lands — Northern Pacific Railroad Grant — Pre-emption Rights.</p> <p>The provision of section 6 of the Northern Pacific Railroad grant, that “the odd sections of land hereby granted” should not he liable to sale, or entry or preTemption before or after their survey, except by the company, must be construed in connection with section 3, containing the grant, and which limited the same to lands to which the United States should “have full title * * * free from pre-emption or other claims or rights at the time the lien of said road is definitely fixed and the plat thereof filed.” Hence lands, to which pre-emption rights had attached at any time prior to the filing of the map of definite location, being reserved from the grant, were not within the provisions of section 6, and up to that time the right of pre-emption was not affected by anything in the act, or by the filing of the map of general route thereunder.</p> <p>2. Same — Piumc.mption Rights — Skttdkr on Uxsurvey'BD Land</p> <p>A qualified settlor, who enters itpon and improves unsurveyed public land, with the intention of obtaining title thereto under the pre-emption laws, lias a claim thereon, which is a right of pre-emption, and which continues until three months after the map of survey of the land has been iilecl in the land office, unless his entry is sooner made; and where a, settler was so occupying and residing upon a tract of unsur-veyed land at the time of the filing of the map of definite location of the line of the Northern Pacific Railroad, which brought the land within the boundaries of its grant, alihough the settler had made no application for entry, such land was at that time subject to a “pre-emption claim or right,” within the meaning of the reservation clause of the act making such grant, and the company acquired no title thereto.</p> <p>Gilbert, Circuit Judge, dissenting.</p>

<p>In Error to tbe Circuit Court of the United States for the Northern District of New York.</p> <p>The defendant in error, hereinafter called the' “plaintiff,” brought an action at law, subsequently removed to the United States circuit court for the Northern district of Now York, against tlie Grand Trunk Railway Company of Canada, hereinafter called the “defendant,” to obtain damages for an injury alleged to have been suffered by its negligence. A verdict for $14,500 was rendered for the plaintiff, upon which judgment was entered, and this writ ol' error was brought to review the judgment.</p>

This was a cause removed from the state court, and the question before the court was as to whether it was cognizable in the federal court, as a suit at law or in equity.

<p>On Motion of Defendant for Direction of Verdict.</p>

<p>On Petition for Rehearing.</p>

The plaintiff in error brought an action against the defendants in error for damages for breach of an option to purchase certain mining property.

<p>Municipal Corporations — Actions on Bonds — Necessity op Presenting Claims.</p> <p>The statute of Nevada requiring claims against counties to be presented to tlie proper officers for allowance and approval before suit brought thereon does not apply to bonds and coupons issued by the county, such claims being for all practical purposes audited when the bonds were issued; nor to judgments rendered on such bonds and coupons.</p>

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

This was an action brought in the district court of Nevada for Washoe county by B. F. Leete against the Pacific Mill & Mining Company, a California corporation, to recover the sum of $3,200 received by the mining company from the United States. The complaint alleged that this money was received for the use and benefit of the plaintiff.

<p>1. Variance — Action on Contract of Employment.</p> <p>In an action on a contract of employment to recover salary for services rendered thereunder, in Which the complaint alleges performance on the part of the employe, proof of such performance is essential, and the plaintiff cannot recover on evidence that the employe was prevented from performing the contract by defendant, it being shown that he did not in fact render any services thereunder.</p> <p>S. Federal Courts — Following State Decisions — -Construction of Contracts.</p> <p>A federal court is not at liberty to accept as conclusive the construction of a contract by the supremo court of a state, where such construction in no maimer depends on any state law, and is not pleaded as creating an es-toppel between the parties; but is required to exercise its independent judgment, giving to the state decision, however, due weight as a precedent.</p> <p>3. Partnership — Contract Creating — Construction.</p> <p>B., who was the owner of a publishing company, entered into a contract with S., by which he sold and assigned to him an interest in the business, reciting that it was shortly to be incorporated, in consideration of past seryices, and that S. should devote his services to the company for 10 years. The contract provided that the interest of S. should be forfeited and revert to B. if S. should fail to perform his part of the contract, and that one-half of it should revert in case of his death within five years. It further provided that the salary of S. should be a certain sum per month. Held, that the contract created a partnership, and contemplated the payment of the salary of S. by the firm, or by the corporation when formed, and that an action to recover such salary could not be maintained against B. individually.</p>

<p>1. Public Lands — Mineral Character — Saline Lands.</p> <p>Saline lands arc mineral, within the meaning of a provision of an act of congress reserving- mineral lands from a grant.</p> <p>3. Same — Grant to State — Effect of Reservation of Mineral Lands.</p> <p>By Act Cong. June 10, 1880 (21 Stat. 287), congress granted, to the state of Nevada 2,000,000 acres of land, ro be selected by the state from “unappropriated, nonmineral, public lands.” By an act of the state legislature of March 8, 1887 (St. 1887, p. 102), the state expressly disclaimed on behalf of itself and its grantees any rights in any mineral lands which had been or might he selected under such grant, and further provided that its conveyances should give no rights as against persons in actual adverse possession. JJcld, that the state acquired no rights in land selected under the grant which was in fact known mineral land, containing both salt and the precious metals, which had been appropriated in 1805 under an act for the location of land containing salt, surveyed, and the location recorded, and which had ever since been in the actual possession of the locator anti his grantees, who liad erected a quartz mill thereon at a cost of over $50,-000, and that a patent executed by the state therefor to an applicant to purchase who had actual knowledge of all such facts was void.</p> <p>3. Same — Patents by State — Collateral Attack.</p> <p>Such patent, being- without authority of law, and prohibited by the law of the state which issued it, is subject to collateral attack in an action at law.</p>

TMs action was brought hy James F. McElroy, plaintiff in error, in the superior court of the state of Washington, to recover $2,169.30 and interest, alleged to he due upon a policy of lire insurance issued to Mrs. J. 0. Powers, plaintiff’s assignor, by the defendant in error.

<p>In Bankruptcy. On review of ruling of referee in bankruptcy.</p>

<p>Customs Duties — Classification—Sticks of Carbon.</p> <p>Carbon sticks, 36 inches long, intended for ultimate use in electric lighting, but which require to be cut into suitable lengths, the ends of which must be pointed or ground, before they can be so used, are dutiable under paragraph 97 of the tariff act of 1897, as articles or wares composed wholly of carbon, not specially provided for, and not under paragraph 98, as carbons for electric lighting.</p>

<p>Patents — Incandescent Mantles for Lights.</p> <p>Tiie Bawson patent, No. 407,963, for improvements in incandescent mantles for gaslights, held valid, and infringed, on motion for a preliminary-injunction.</p>

This was a suit in equity by the Welsbach Light Company against the Apollo Incandescent Gaslight Company for alleged infringement of letters patent No. 407,963, granted July 30,1889, to F. W. & W. H. liawson, for improvements in incandescent mantles for lights. The cause was heard on a motion for preliminary injunction.

<p>This was a suit in equity by the Welsbach Light Company against the JRex Incandescent Light Company for alleged infringement of letters patent No. 407,963, issued July 30, 1889, to F. W. & W. S. Baw-son, for improvements in incandescent mantles for lights. A preliminary injunction was heretofore granted. See 94 Fed. 1004. The defendant now moves to vacate said preliminary injunction on the grouhd that a French patent for the same; invention had lapsed between the date of the application for the patent in suit and the date of its issuance.</p>

<p>1. Patents — Preliminary Injunction — Effect of Prior Decisions.</p> <p>When a patent has been established by a decision of a circuit court after careful consideration upon a full record, another judge sitting subsequently in the same1 court in a different case, upon an application for preliminary injunction on ex parte papers, may well deem himself constrained to adopt the rulings in the prior case, even- against his own judgment, when the facts are substantially the same.</p> <p>2. Same — Effect of Foreign Decision.</p> <p>Where a patent has been sustained on final hearing by an American court, the fact that since such decision an English court, construing a British patent for the same invention, has reached a different conclusion, is no reason why the same American court, in a subsequent suit, and on a motion for preliminary injunction, should refuse to follow the earlier American decision, especially when the language of the two patents is not identical.</p> <p>3. Same.</p> <p>The Bawson patent, No. 407,963, for improvements in incandescent mantles for lights, intended to make such mantles stronger, so that they can be handled and transported without breaking, was not anticipated by the French patent to Welsbach, No. 172,064, nor by the English patent to the same inventor, dated December 12, 1SS5. Held, therefore, on motion for preliminary injunction, that the Bawson patent was valid, and infringed.</p>

Appeals from the District Court of the United States for the District of Minnesota. These are appeals from two decrees in admiralty rendered in proceedings against the steamer Belle P. Cross. On December 14, 1896, Gustave Herman, Ralph B. Herman, and Edward G. Ashley filed a libel in the court below against this steamer, her engine, boilers, tackle, apparel, and furniture.

<p>In Admiralty. On exceptions to libel.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>On September 30, 1893, a libel in rem was filed in the district court for the Eastern district of New York against the canal boat Fred M. Lawrence by the Union Marine Insurance Company to recover damages for a collision, and the vessel was attached, whereupon Elizabeth E. I-Iickok filed her claim as owner, and the value of the vessel was fixed by consent, at $3,400. The said Hickok, Alfred Hamilton, and Edward M. Clarkson entered into a stipulation that, in case of default or contumacy on the part of the claimant or her sureties, execution for the agreed value, with interest thereon, might issue against their goods, chattels, and lands, and the vessel was released. The condition of the stipulation was, in substance, that, if the stipulators should at any time upon tho interlocutory or final order or decree of the disirict court or appellate court, and upon notice to the proctors for the claimant, pay the money awarded by the final decree, the stipulation should be void. The claimant filed her answer on December 16, 1893. Nothing more was done In the case until April 16, 1898, when a motion was made, which was granted on June 8, 1898, that, by reason of the insolvency of the sureties, the claimant or her sureties should furnish better and sufficient security at a specified time, and, if not furnished, the answer should be deemed stricken out. This order was made by authority of rule 23 of the district court, which was made pursuant to section 913 of the Revised Statutes. Rule 23 is as follows: “In all cases of stipulations in civil and admiralty causes, any party having an interest in the subject-matter may at any time, on two days’ notice, move the court on special cause shown for greater or better security; and any order made thereon may be enforced by attachment or otherwise.” The order was not complied with, and on June 25th it was ordered that the answer should be deemed stricken out, and that the libel should he taken pro confesso against the claimant and her sureties, and should be referred to a commissioner to report the damages. Counsel for the claimant attended upon the reference and upon the commissioner’s report, which found the damage to have been $3,266.39, and the interest thereon to be $970.65. A decree was entered that the libelant recover from the Fred M. Lawrence, the claimant, and the stipulators the amount thus found and costs, and that, unless the decree was satisfied within a specified time, the stipulators for costs and value on the part of the owner show cause within a specified time why execution should not issue against them. , From this decree the claimant and the sureties have appealed, upon the ground that the district court was without authority to order that the answer should bo stricken out, or that the libel should he taken pro confesso.</p>

<p>Collision — Negligent Navigation of Tug Along Pthbs.</p> <p>La ws N. Y. 1897, c. 378, § 879, making it unlawful for vessels to obstruct navigation in the East and North rivers by lying outside the piers, except at their own risk of injury from vessels entering or leaving any adjacent dock or pier, does not affect the right of a vessel lying beyond the end of a pier to recover for an injury caused by a collision with it of a passing tow through the negligent navigation of the tug, which was neither entering nor leaving an adjacent dock.</p>

<p>In Admiralty. Collision.</p>

<p>Motion for Preliminary Injunction. Livingston Gifford, for the motion.</p>

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

<p>Motion to Amend Bill of Complaint.</p>

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

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

<p>Motion by Defendant for Judgment Notwithstanding the Verdict.</p>

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

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

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

<p>Trade-Maiiks — Transfer—Effect of Assignment tn Insolvency.</p>

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