Volume 1 — Federal Reporter

St. §§ 2011-2015. The United States Statutes and the statutes of the state of Delaware, applying to the case, are set forth in the opinion of the court.

<p>Guardian and Ward — Civil War. — A guardian appointed by a surrogate court in the state of New York, who, together with his ward, was subsequently domiciled in a southern state during the waging of the civil war, was bound in good faith to keep his ward’s money and its accumulations safely during the war, and to account for such property at its close.</p> <p>Same — Removal op Trust Fund — Confiscation.—A guardian cannot lawfully remove the property of his ward in order to save it from confiscation by the United States government.</p> <p>Same — New Guardian — Release.—A new guardian may be appointed before a former guardian has been discharged, where such guardians are ■ resident in separate, state jurisdictions. A release from such new guardian will not, however, relieve the former guardian from liability, where such former guardian has unlawfully invested the funds of the ward.</p> <p>Same — Ratification by Ward. — The ratification by a ward must be made with a full knowledge of all the facts, and a full-understanding of all legal rights, and the same must be clearly established by the evidence. •</p> <p>Same — Next op Kin — Estoppel.—The acts and admissions of the next of kin of the ward, made during the life-time of the ward, are not subse- ' quently binding upon such next of kin when she becomes the administratrix of such ward.</p> <p>Same — Investment—Interest with Annual Rests. — Where a guardian unlawfully invests trust funds, he is liable to make good the amount invested, together with interest and annual rests.</p>

<p>Trade-Mark — -Fraud—Injunction.—A court of equity will restrain the fraudulent imitation of a package and label, although they do not technically constitute a trade-mark, where the public are thereby misled into purchasing the goods of the imitator as those of the original manufacturer.</p>

<p>P1~ ~CTICfl-~-PLEAS -~llEJf ER~' cjE.~--~W11ere judgments are pleaded in bar, the court on motion may refer the pleas to a master to ascertain the truth of the same.</p>

<p>National Banks — Juuisdiction—National banks are not authorized to institute suits in the federal courts out of the districts where they are established, when the amount in controversy does not exceed 8500.</p>

<p>Damages to Cargo — Drainage oi? Sugar — Freight.—Where a cargo of sugar was brought from Havana to New York in bags, and the consignees refused to pay the freight, alleging damage to the sugar by reason of bad storage, and careless delivery, to the amount of $1,100, whereupon the master brought suit to recover his freight, held, that upon the evidence the ship was not liable for any damage to the sugar which arose from unusual drainage, and not by fault of the ship, and therefore the master is entitled to his freight.</p>

<p>Indictment — ITíaud, now Aiíeged. — An indictment charging fraud should aver the fraud with sufficient particularity to enable tbe defendantPto prepare his defence, and plead the judgment as a bar to a subsequent prosecution.</p>

<p>Common Carriers by Water — Exceptions in Bill op Lading. — Exceptions in a bill of lading against breakage, leakage and rust, as well as tbe perils of the sea, do not relieve a carrier from liability where a cargo of iron was injured by salt water, owing to improper stowage and. the defective construction of the vessel.</p>

<p>Fire Insurance — Mortgagor and Mortgagee — Party to Suit. — In an action upon a policy of insurance on mortgaged premises, the mortgagee is not a proper party plaintiff, where the policy was issued to the mortgagor, although made payable to the mortgagee.</p> <p>Breach of Conditions. — Any breach by the mortgagor of the conditions contained in such policy will avoid the same.</p> <p>Restoration of Property. — If the injured property is repaired by the mortgagor, no right of action remains upon the policy.</p>

<p>Bankrupt Law — Unlawful Freferenob of Creditor. — Although, under a sound construction of the bankrupt law, mere passive non-resistance by the insolvent debtor will not defeat a judgment and levy where the debt was due and there was no defence to the same, still, very slight evidence of an affirmative character of a desire to prefer a creditor, or of acts done to secure such preference, maybe sufficient to invalidate the whole transaction.</p> <p>Circumstances in this case considered, and held sufficient to establish the fact that certain judgments were obtained and executions levied through the secret co-operation of an insolvent debtor, and were therefore void.</p>

<p>Invention — Whip Tip Independent op Stock. — A whip tip, made independent of'the stock, to which it may be fitted by means of a socket, is not alone such an improvement as may be patented.</p>

<p>Admiralty — Negligence.—It is not negligence to cover the lower deck beams of a steamer with loose planks, for the purpose of stowage, when the party injured has notice of the manner in which they are placed, and uses the same without any necessity.</p>

<p>Patent Case — Practice.—Modos oí proceeding before a master to whom a patent case has been referred.</p>

<p>Tlio plaintiff in the case first above named, by his writ, commanded the marshal to attach the goods or estate of the Androscoggin Mills, “a corporation duly established by the laws of the state of Maine, and doing business in Boston,” to a certain value, and “to summon the defendant.” The declaration was in trespass, for damages for the alleged infringement of a patent granted to the plaintiff. The return of the marshal was that he had attached a chip as the property of the defendant, and had delivered a summons to T. W. Walker, the president of the company.</p> <p>The defendants appeared specially, and moved to dismiss.</p> <p>The second ease was in all respects like the first.</p> <p>distinguished Ex parte Schollenberger, 96 U. S. 369; Williams v. Empire Transportation Co. 14 Off. Gaz, 423; Packing Co. v. Hunter, 1 Reporter, 455, in that the service in those eases was precisely such as the state courts required to be made upon foreign corporations, while in Massachusetts an effectual attachment of property must be made in such cases. Andrews v. Mich. C. R. Co. 99 Mass. 534; Peabody v. Hamilton, 106 Mass. 217.</p>

<p>Income Tax — Demand—Lien—Time it Attaches — Property it Attaches. — The lion of tlie income tax (Act July 13, 1866, 14 St. at Large, 107; Rev. St. j 3186) relatos back, upon demand, to tlie time when the tax was duo, hut only attaches to tlie property belonging to tlie person from whom the tax was due at tlie timo when the demand for the payment of the tax was made.</p> <p>Same — LrEN, How Created. — The assessment of such tax by the assessor, in the mode prescribed by law, is essential to the creation of such lien.</p>

<p>This action was prosecuted against the sureties upon an official bond; the principal was named as a defendant, but was absent from the district and was not served with process. In June, 1866, McCartney was collector of internal revenue for the third collection district of Massachusetts, and was duly directed by the secretary of the treasury to act as disbursing agent for that district, in accordance with section 4 of the act .of March 3, 1865, (13 Stats. 483,) and gave the bond in suit, which recites McCartney’s position as collector, and that the secretary has directed him to act as disbursing agent to pay the lawful expenses incident to the various acts relating to the assessment- and collection of the internal revenues; and is conditioned that McCartney, collector as aforesaid, shall faithfully perform his duties as such disbursing agent, and shall properly account for and pay over all moneys that may come into his hands as such disbursing agent.</p> <p>The course of business was for McCartney to make requisitions for the sums which he expected to need, and for the department to send drafts for the amounts, or so much as they thought necessary, which drafts were deposited by McCartney, who drew checks to pay the several expenses, which, before the passage of the act of 1868, presently to be mentioned, consisted of his own commissions and his salary, and that of the assessors, assistant assessors and clerks, and the general expenses of his office.</p> <p>If appeared, by duly verified transcripts from the books of the treasury department, that McCartney received drafts monthly from the government on this disbursing account, and rendered monthly returns from June, 1866, to the end of March, 1869. He went out of office May, 1, 1869, and it did not appear that he had either drawn or paid out any moneys during the month of April, and there was some evidence that he had done neither. A balance of $7,155.17 appeared to be left in his hands by his latest .return, from which had been deducted by the department his compensation for April, and some other allowances, leaving apparently due the sum now demanded, $3,545.92.</p> <p>The act of July 20, 1868, (15 Stats. 145,) provided for the appointment of store-keepers, by the secretary of the treasury at a compensation to be fixed by the commissioner of internal revenue, not exceeding five dollars a day, ahd, by the papers in the case, it appeared that McCartney claimed credit fox payments to such store-keepers amounting in all to $3,-572.57, and that the department had allowed him on that account $3,293.99. This was all the evidence tending to show that McCartney had been required, as such disbursing agent, to pay the fees of store-keepers under the act of 1868.</p> <p>The plaintiffs offered to put in evidence certain other papers purporting to be copies of the monthly requisitions of McCartney for money to pay his various disbursements, with the action of the department thereon, for the purpose of showing how much money was drawn for the payment of the fees of store-keepers. These papers were under the seal of the treasury department and the signature of the secretary, but not that of the register, and were excluded by the court.</p> <p>The learned judge was asked by the defendants to rule that the bond was avoided by the passage of the act of 1868, and the action under it; and the plaintiffs contended that it remained wholly valid, and required a due accounting for the expenses of store-keepers. The court ruled that the bond did not require the sureties to make good any loss arising m respect to the fees of storekeepers, and that there was no sufficient evidence what part, if any, of the balance' of McCartney’s last account, as since reduced by credits, was due in respect to these fees, and ordered a verdict for the defendants.</p> <p>Before the trial by jury, a demurrer, interposed by the defendants, was overruled.</p> <p>The case was heard in this court upon the plaintiff’s exceptions.</p>

<p>Bankruptcy — Attachment of Dividkkh — Equitable Belief. — A bill In equity will not lie in favor of a partnership creditor, to restrain the application of a dividend in the hands of an assignee in bankruptcy to the debt of an individual creditor, where both of the creditors have attached such dividend under process issued by a state court.</p>

<p>Contract — Receipt—Evidence.—Where, upon-sufficient consideration, a statement is written across the face of a note by the party signing such statement, to the effect that funds have been placed in his hands, as trustee, for the payment of such note at maturity, the party so signing becomes personally liable for the payment of the note, although evidence was admissible to prove that the payee of the note knew that such signer actually had no such funds in his possession at the time he signed the statement, nor had subseqently received sufficient to pay the note in full at its maturity.</p>

<p>Revenue — Durr on Wool — Presumption as to “Invoice Value.” — It will be presumed, in the absence of testimony, that where an importation of wool was appraised at its “ invoice value,” such appraisment did not include the charges upon the wool at the port of exportation, when the invoice contained the amount and cost of the wool separate from such charges.</p> <p>Same — Samf.—Appraisal.—An actual appraisement by the appraiser is conclusive as to tlie value of such importation, in the absence of an appeal to tlie merchant appraisers, and the collector is therefore required to assess the duty upon such valuation.</p> <p>Same — Same—Invoice Value. — Unwashed Cordova wool is within the provisions of the act of March 3, 1865, (13 St. at Large, 493, § 7,) which provides that the duty assessed upon certain imports “shall not he assessed upon an amount-less than the invoice or entered value” of such imports.</p>

<p>Bill in Equity — Infants.—Infants are necessary parties to a bill In equity to set aside a policy of insurance, when they have a contingent interest in such policy.</p> <p>Same — Multifariousness.—The joinder of a prayer in such bill to restrain an action at law for the recovery of back premiums already paid does not vender the bill multifarious.</p> <p>Same — Demurrer Ore Tenus — Oatu of In panto to Answer. — A demurrer ore tenus must be co-extensivo willi the bill, and will not prevail where the demurrer is taken upon Hie ground that the bill prays for an answer under oath by infant defendants.</p>

<p>Attachment — Preference of Creditors. — The preference of a bonafi&e ' creditor does not authorize the issuing of an attachment upon the ground that the defendant has disposed of his property with the intent of defrauding his creditors.</p>

<p>Pilotag-e — Certificate of License. — Certificate of master of steamer construed, and held tliat intent to authorize him to act as pilot, under Rev. St. § 4443, was sufficiently expressed.</p> <p>Same — License by Inspectors of the United States. — Inspectors of the United States have authority to issue a license to the master of a steamship to act as pilot between Boston and Havana.</p> <p>Same — Local Pilot. — A steamship with a master so licensed is exempt, under Statutes of Massachusetts of 1862, o. 76, schedule, clause IS, from the payment of compulsory pilotage.</p>

<p>Intention — Specification—Drawing.—In a suit upon a patent a drawing can be looked at, if necessary in order to explain an ambiguous or doubtful specification, but cannot be made to supply the entire want of any part of a specification or claim.</p> <p>Same — Patent.—Although a patent gives an exclusive right to the patented invention for all uses to which it could be put, whether contemplated by the inventor or subsequently discovered, still the invention must, in some way, be covered by the patent before such exclusive right can be acquired.</p>

<p>Intention — Improved Process op Curing Pish. — An improvement in the process of curing fish by the removal of the mucous membrane is patentable, when it was not formerly known that such membrane was injurious to the keeping quality of the fish. .</p>

<p>Trustees — Action at Law upon an Agreement to Account. — Trustees cannot be charged in assumpsit or trover with the “earnings” of an estate for a specific period, under an agreement to account for the same</p>

<p>Navigable Stream — Use as a .Public Highway — Obstructions to Steamboat Navigation. — Where a river lies wholly within the territory of a single state, and certain piers and booms have been erected in that river by a private corporation, under the authority of the legislature of that state, such piers and booms will not be abated by a court of equity, at the instance of a private individual, asa nuisance, although they obstruct tlie steamboat navigation of the river, and such corporation has exceeded its powers in the erection of tho same.</p> <p>Same — Injunction—Action at Law. — In such a case, where the interests involved are very large, and the improvements complained of have been erected under color of legislative authority, and have been used in faciL haling an important branch of commerce, and have ficen acquiesced in for a long time, a court of equity will not interfere by perpetual injunction until the right of the party complaining has been established at law, and it appears that no adequate compensation can bo afforded in damages.</p> <p>Same — Chippewa liman — Transportation of1 Logs. — The use of the Chippewa river by the public as a highway for the transportation of logs and lumber is a right common to all, recognized and protected by tho municipal law; and such right must continue so long as the public ha vo any need of its exercise, unless changed or abrogated by the legislature of tho slate or by congress.</p>

<p>Accommodation Notes — Yendob and Yendee. — Notes made by a vendee in excess ol the value of the goods, and before the same have been delivered, for the convenience of the vendor, are accommodation notes, and the vendor is primarily liable for the same.</p> <p>Same — Banktoiptcy—Clams—Dividends.—'The insolvent maker of such accommodation notes can only prove, against the estate of the bankrupt payee, the amount of the dividend actually paid by him on such notes.</p>

<p>Invention — Claim—Patent.—A patent only protects that part of an invention which the patentee sets out in his claim.</p> <p>Conflicting Inventions — Common Fubpose of two Inventions. — The manufacture of amachine in accordance with a patent, without infringement of the claim of another patentee, cannot be restrained, although the machine incidentally accomplishes the purpose of the prior invention of such other patentee.</p> <p>Patent-Office — Evidence.—Certain certified copies of certain papers from the files of the patent-office, not purporting to be anything in the nature of a record, held admissible in evidence, in proof of facts pertinent to the issue.</p>

<p>Ch/rter Part? — “About to Sail.” — The words “about to sail from Benizaf with cargo for Philadelphia,” contained in a charter-party, held to mean, under the circumstances of this case, to sail as soon as with reasonable diligence a cargo could be got on board.</p> <p>Same — “Every Way Fitted eor the Voyage.” — The stoppage of a steamer for five hours at a port in the course of her voyage, for the purpose of taking in a small quantity of additional coal, held, under the circumstances of this case, to be no breach of a provision in the charter-party that such steamer was “ in every way fitted for the voyage.”</p>

<p>National Bank — Usury—Kuv. St. § 3198. — Tlie receipt by a national bank of a,nusurious rate of interest upon the discount of a note works a forfeiture of such interest as would otherwise have accrued after the maturity of the note.</p>

<p>Petition by alleged majority of the defendant stockholders.</p>

<p>Pleading — Answer—General Denial. — Under the rules of pleading established by the state of Missouri, as modified by the act of 1875, affirmative matters of defence cannot he sot up under a general denial.</p>

<p>Marine Insurance — Government Yessel — Unlicensed Pilot — Seaworthiness. — The mere fact that the officers navigating a government vessel are not licensed pilots, does not prima facie render a vessel nnseaworthy under the warranties of marine insurance.</p>

<p>Patent — Milling Process — Use oe Polls. — A patent for tlie manufacture oí middlings flour by passing the middlings, after tlieir discharge from a purifier, tlirougli or between rolls, is void for want of novelty and uncertainty, when0sunli rolls are inadequate to produce tlie result described.</p>

<p>Patent — Interfering Patents — Sehvice of Notice Outside of Disteict. — In proceedings for relief against the owners of an interfering patent, under section 4918 of the Kevised Statutes, no provision is made for the service of notice upon parties outside of the district in which such proceedings have been instituted.</p>

<p>Jurisdiction — Execution—Judgment in Federal Court — Property in Custody op State Court. — Where, under the “ Insurance Act” of the state of Missouri, proceedings have been instituted in the state court against an insurance company, which finally result in the dissolution and administration of the affairs of that company, all intermediate proceedings must be finally disposed of in that tribunal, even though a valid and subsisting judgment was obtained in the federal court against the company pending such administration.</p>

<p>Motion for a new trial before the circuit judge, in an indictment tried by the district judge while holding the circuit court in the absence of the circuit judge.</p> <p>Indictment. Motion for new trial.</p>

<p>Motion to set aside extra allowance to an assignee in bankruptcy for services rendered as an attorney at law.</p>

<p>Admiralty Jurisdiction — Lockage.—A claim for lockage in a public navigable river is cognizable by a court of admiralty.</p> <p>Lien — Service in Home Poet. — A lien for lockage will not arise where the services were rendered to the vessel in her home port.</p>

The plaintiffs leased a tract of coal land from one Stewart, in 1857, and assigned their leasehold to the defendants In 1858. In 1860 Stewart sold the leased land to the defendants, releasing them from the payment of certain back rent then due, but reserving the right to collect rent due on the lease previous to the date of the sale. In 1873 Stewart brought suit on the lease against the plaintiffs for rent due in 1859, and recovered the same after a protracted litigation.

<p>Injunction for violation of patent.</p>

Motion to vacate or modify decrees obtained in the above' suits by the Iowa Barb Steel Wire Company, upon the ground that said decrees are being used in other courts in applications for injunctions against it or its agents.

<p>Action against a common carrier for damages.</p>

<p>Bill of Lading — Common Carrier — Shipper.—The acceptance of a bill of lading binds the shipper and precludes him from alleging ignorance of its terms.</p> <p>Same — Negligence—Burden of Proof. — Where loss arose through one of the excepted causes contained in the bill of lading, the onus probandi rests upon the shipper to show that such loss occurred through the negligence of the carrier.</p>

Libel by owner of goods jettisoned against the underwriter of the balance of the cargo to recover contribution by general average. The facts are sufficiently stated in the opinion.

<p>Bankruptcy — Opposition to Discharge of Bankrupt — Burden of Proof, — Although suspicious circumstances may in certain cases be sufficient to authorize a court to find the concealment or fraudulent appropriation of money by a bankrupt, yet it is well settled that the burden of sustaining specifications of objection to the discharge of a bankrupt rests upon the opposing creditors.</p> <p>Same — Proper Books of Account — Discharge.—The provision of the bankrupt law which withholds a discharge, “if the bankrupt, being a merchant or tradesman, has not at all times, after the second day of March, 1867, kept proper books of account,” applies only to merchants and tradesmen in respect to their business as such merchants and tradesmen.</p>

Demurrer to bill to set aside award. Tlie facts set- forth in the bill, and in the amendments thereto, are substantially as follows: On April 20, 1867, the complainant entered into a contract with certain commissioners, appointed by the county court of Christian county, for the erection of a court-house for the sum of $53,413.

<p>Collision — Steam Vessel and Sailing Vessel. — Rule 20, Rev. St. $ 4233. — Rulo 20, Rev. St. § 4233, that a steam vessel should keep out of the way of a sailing vessel does Dot apply to a tow composed of two steam tugs and 17 canal boats.</p>

<p>In admiralty.</p> <p>The facts of this case, as shown by the pleadings, were these: On the fifteenth day of October, 1879, the schooner Davidson left Chicago on a voyage to northern ports on Lake Michigan. Libellants shipped on board as seamen. On the next day the vessel was stranded on Pilot Island Beef. On request for assistance from the master, Wolf & Davidson, of Milwaukee, dispatched the tug Leviathan, with steam-pump and other apparatus, to the relief of the vessel. Efforts wore made to get the vessel off, and were continued until November 26th, but they were unsuccessful. From the time the vessel was stranded until exertions to relieve her were abandoned libellants continued on board. On the twenty-fifth day of November, the master of the tug being convinced that the vessel could not be relieved, deemed it advisable to save her outfit, consisting of boats, tackle, rigging, apparel and furniture, and ceased his efforts in behalf of the vessel. Thereupon the master and crew of the tug, with the assistance of the crew of the vessel, removed the vessel’s outfit to the tug, and brought it, together with the master and crew of the vessel, to the port of Milwaukee. Libellants were then discharged, but were not paid their wages, and thereupon libelled the outfit. Decree was rendered in their favor, the outfit sold, and the proceeds were paid into the registry of the court. Thereupon the owners of tho fug intervened, by petition as salvors, insisting that their claim for salvage service w'as privileged to that of the seamen, and asked for payment as having the prior right to the proceeds of sale; and the question was whether, under such a state of facts, the wages of the seamen, or the claim for salvage service, was to he first paid.</p> <p>cited Pitman v. Hooper, 3 Sumner, 50; The Massasoit, 1 Sprague, 97; The Isabella, Brown’s Adm’y Rep. 96—103; The Sailor Prince, 1 Benedict, 234; The Steamboat Pilot No. 2, 1 Newberry, 215-217; Smith v. Stewart, Crabbe’s Rep. 218; Lewis v. The Elizabeth & Jane, 1 Ware, 35.</p> <p>cited The Salina, 2 notes of case 18, 16 Monthly Law Reporter, 5; Reed v. Hussey, 1 Blatch. & How. 527; Collins v. Steamboat Fort Wayne, 1 Bond, 484.</p>

In equity. Bill and cross-bill for specific performance. The bankrupt, Hardesty, was the owner of 180£ acres of land in Washington county. Under an execution issued on a replevin bond the whole tract was, prior to the commencement of bankruptcy proceedings, sold for less than two-tbirds of its appraised value to a man by the name of Hardin. Before the expiration of the year which Hardesty had for redemption he became a bankrupt, and defendant, MeChord, was chosen assignee.

<p>Action removed from state court, and heard, without change of pleadings, by consent.</p>

<p>Cause tried before the court without a jury,</p>

<p>Final hearing upon pleadings and proofs in suit in equity.</p>

<p>Jurisdiction — Concurrent Jurisdiction of the Circuit and Probate Courts — Payne v. Hook, 7 Wall. 426, Followed. — In a suit against the administrator of an executor, by the citizens of another state, to enforce the payment of a judgment obtained against the decedent in such state, during his lifetime, and subsequently sued upon in the circuit court for the district of Minnesota, and judgment obtained thereon against the executor of the decedent, such circuit court has concurrent jurisdiction with the probate court of the state of Minnesota in which the wills of the decedent and the deceased executor have both been probated.</p>

<p>Corporation — Assignees of Stock Certificates — Share-holders— Transfer upon the Books of the Corporation. — The assignees of stock certificates in a corporation, by assignment from persons to whom the certificates were originally issued, are not, by virtue of such assignment, share-holders, when the transfer of shares is required to be made upon the books of the company.</p> <p>Same — Same—Evidence as to Character of Assignment. — Evidence is admissible in behalf of the corporation to show the true character of such assignment in order to determine the relation of the assignees.</p> <p>Same — Same—Ultra Vires — Injunction.—An injunction will be refused, upon the prayer of such assignees, for the purpose of restraining such corporation from holding a meeting in order to increase the corporate debt, or from increasing such debt until the stock in controversy has been transferred to the assignees upon the books of the company, or from voting upon the stock thus assigned, where it appears that the stock was merely pledged by the assignment of the certificates, and it was manifest that the proposed increase of the corporate debt was not ultra vires.</p>

<p>Sureties — Chattel Mortgage — Extension or Time cot Payment— Evidence. — A chattel mortgage, partly given to secure a pre-existing debt, will not discharge the sureties of the debtor, unless such mortgage purports upon its face to extend the time of the payment of the debt for a definite period.</p>

<p>Motion to remand the cause to the state court.</p>

<p>Admiralty — Jurisdiction—Home Port — Services to Stranded Boat. —Services rendered a steamboat stranded upon a bar in the Mississippi river, some 65 or 70 miles below St. Louis, in a voyage from that p,orlto Sew Orleans, are not to be regarded as having been rendered in her home port, although such boat may have been at the time within the territory oí the slate of Missouri.</p> <p>Services Rendered at Bequest oe Master — Presumptions.—Where such services were rendered at the request of the master, it will be presumed that they wore necessary, and properly rendered on the credit of the vessel.</p> <p>Claim eor Services — Assignment.—The owners of one-half of the claim for such services, who have obtained the other half by assignment, are entitled to sue for the whole.</p> <p>Lien — Salvage.—Although the services rendered were not in the nature of salvage, the right of the libellants to a lien was not thereby affected.</p>

<p>Sale — False Pretences — Katotcatton.—The refusal of a vendor to taka back goods obtained by false pretences, in order to obtain a preference over other creditors, amounts to a ratification of the sale.</p>

<p>Yendob’s Lien — Assignment—Failubb of Considbbation — Spbcifio Pekfobmamoe. — A partial failure of consideratiou docs not render the assignment of a vendor’s lien void, and the assignor cannot subsequently seek to enforce the lien by a suit for specific performance before such assignment has been duly avoided.</p>

<p>Pleading! — Certain Bules Kestated. — (1) In pleading, the parties respectively must aver the issuahle facts and nothing more; (2) if a pleading has not sufficient issuable facts to constitute a cause of action or defence, or is mixed with statements as to evidence to support the same, the opposite party may demur; (3) if a pleading is so vague and confused that the material and immaterial allegations are intermixed, or a mass of statements are contained therein, some issuable and others non-issuable, the opposite party may move to make the pleading more definite and certain; (4) but motions to strike out special clauses and sentences in a pleading will not be entertained.</p>

On pleadings and proofs in equity. The bill sets forth that in 1878 defendant Hart was adjudicated a bankrupt, and defendant Ward elected his assignee; that on the twenty-second of February, 1876, Hart executed to Hall and Allen a mortgage of real property, described as follows: “One hundred acres of land on the Ohio river, opposite the Diamond Island, and being a part of the same land conveyed to me by Brooks’ heirs, as shown by deed of record in the Henderson county…

<p>Draft — Specific Sum Paid Drawee — Transfer to Trustee of Bankrupt Drawer. The holder of a draft is entitled to recover a specific sum of money paid to the drawee for the express purpose of taking up such draft, and transferred, after payment had been duly demanded, to the trustees of the bankrupt drawer.</p>

<p>Patent — Employe in Patent Office — Invention Prior and Patent Subsequent to Employment — Act of J uly 4,1836. — The second section of the act of July 4,1836, (5 U. S. Stat. at Large, § 118,) disqualifying an employe in the patent office from acquiring an interest in a patent, does not disqualify such employe from obtaining a patent, after such employment has ceased, for an invention made prior to the commencement of such employment.</p> <p>Same — Abandonment—Property of General Public in the Invention-Patent Subsequently Allowed by Act of Congress. — The consent of the inventor to the public use of his invention; or the withdrawal of his application for a patent, does not vest any right of property in the general public, in the sense of the fifth amendment to the constitution of the United States, so as to prevent the subsequent allowance of a patent for such invention, by act of congress, unless there was, in a particular case, a reduction of the invention to use and practice, by its embodiment in some apparatus prior to the issue of such patent.</p>

<p>Application for preliminary injunction for alleged infringement of a patent.</p>

<p>Motion for preliminary injunction to restrain the infringement of letters patent.</p>

In admiralty. Exceptions to libel for multifariousness. The libel claimed for the services of libellant as seaman upon a round trip from Madison, Indiana, to New Orleans, and alleged that the master shipped him under a contract to serve as roustabout at one dollar per day, and also “to receive kind and humane treatment, and Ms board or rations during the trip, and to be brought back to Madison.” It further alleged that before the completion of the round trip, and near…

<p>Collision — Barge m Tow of Tug — Schooner Struck nr Barge and Driven into Ferry-Boat.</p>

<p>Removal oe Cause — Act March 3,1875. — The words, “at the term at which said cause could be first tried,” contained in the act of March 3, 1875, relating to the removal of causes, held to mean, “the first term at which the pleadings were in condition for trial; that is to say, when the issues were made up.” Gurnee v. County of Brunswick, 1 Hughes, 270, followed.</p>

Action upon 27 negotiable bonds of defendant, payable to bearer, of divers dates and amounts, and acquired by plaintiff after due.

<p>Suit in Equity — Suit Pending In State Court — Different Grounds for Belief —A bill filed in behalf of the holder of certain corporation bonds secured by a trust mortgage, alleging the refusal of the trustees to proceed under the mortgage according to its provisions, and a misappropriation by the defendant of the tolls and revenues mortgaged, will not bo dismissed because a bill, to which such trustees wore made parties, had been previously filed in the state court to determine the priorities of the various lien creditors of the defendant corporation.</p> <p>Same — Parties—Non-resident Trustee. — A non-resident trustee is not a necessary party to such suit, where four out of five of such mortgage trustees have been served with process and have duly answered.</p> <p>Same — Same—State of Maryland. — The State of Maryland is not a necessary party to such suit, although it owned four-fifths of the whole capital stock of the defendant corporation, and hold a prior mortgage upon all the property of such corporation, including its tolls and revenues, when, by a subsequent act of the legislature of that, state, the corporation had boon duly authorized to mortgage its tolls and revenues to secure another loan and issue the bonds in suit for the same, and when it had been further enacted that the rights and liens of the state upon the tolls and revenues of the defendant should bo “ waived, deferred and postponed” in favor of the bonds so issued, so as to make such bonds, and tlie interest accruing thereon, preferred and absolute liens on the revenues of the defendant company, until such bonds, with the interest thereon, should be paid.</p>

<p>Removal op Cause — Necessary Parties to Petition — Act op March 3, 1875. — “Where the removal of a cause is prayed for under the act of March 3, 1875, upon the ground that “the controversy in the suit is between citizens of different states,” it is necessary that all the parties, plaintiff or defendant, should join in the petition for removal.</p> <p>Same — Suit by a Married Woman — Next Friend — In a suit by a married woman, her next friend has no interest in any controversy involved in the suit, within the meaning of the act of March 3, 1875.</p>

The American File Company was incorporated by an act of the legislature of Rhode Island in May, 1863, and was organized in the June following. The company bought a patent under which the manufacture of files had been before carried on in Baltimore, and the persons who sold them the patent took nearly one-half the stpck of the new company.

<p>Final Decree — Motion to Open Judgment aeter Close on Teem.— After the term at which a final judgment or decree is entered, the courts of the United States have no power to open the judgment or decree, and grant a rehearing, or let a defendant in to answer, unless, at the time at which the judgment or decree is entered, some order is made virtually keeping the judgment open for further relief or proceedings.</p> <p>Bame — Omission to Enter Order that the Bill be taken Pro Ooneesso. — The omission to enter a formal order that the hill be taken pro confrno against the defendants, will not affect the regularity of a final iecree or make it any less absolute.</p>

<p>Common Carries — Limitation of Liability — “Loss or Damage by Fire” — Negligence of Agent. — A stipulation in a receipt exempting an express company from liability “for any loss or damage by fire,” does not relieve suet company where such loss occurred through the negligence of a railroad company employed by the express company to transport the goods in controversy.</p> <p>Same — Limitation of Liability to Stipulated Sum — Real Value not Disclosed. — A stipulation in a reeeipt limitating the liability of the carrier to a stated sum, is binding upon the shipper, in the absence of a disclosure m to the real value of the goods shipped.</p>

<p>Bill in Equity — Multifariousness—Fraudulent Conveyance to "Wife — Gbantee, Executbtx of Deceased Grantok. — A bill in equity for an account against the executrix and former wife of a deceased trustee is not bad for multifariousness because it prays, among other things, for ah account of the value of certain properly fraudulently conveyed to such executrix by the testator in his life-time, in order to avoid liability for a broach of trust.</p>

<p>Contract — Place of Performance — Lex Pori. — The payment of certain first mortgage railroad bonds executed and issued in the dominion of Canada, and payable in the city of New York, is not discharged by virtue of an act of parliament of the dominion of Canada authorizing such railroad to issue now bonds, bearing a lower rate of interest, in substitution of such former bonds.</p>

<p>Practice — Pleading—Amendment After Demurrer. — Under section 542 of the New York Code, as applied by section914 of the Kevised Statutes to the practice and pleading in the circuit and district courts within the state of New York, a complaint is amendable by the party at any time within 20 days after a demurrer thereto.</p> <p>Amendment — Averment or Statute Violated — Same Cause or Action. —The amendment of a complaint by a change In the averment of the statute violated, does not set out a new cause of action where both statutes wore substantially identical, and the last mentioned was passed as a substitute for the one first pleaded.</p>

<p>Motion for new trial.</p>

Bill in equity, filed by petitioning creditors of Dempster, an alleged bankrupt, to restrain certain other creditors from proceeding upon executions levied upon the personal property of the bankrupt, the .bill alleging that these executions were fraudulent preferences. An injunction was ■ granted, and, after Dempster had been adjudicated a bankrupt, the property was sold under an order of court by commissioners and the proceeds paid into the.registry of the court.

<p>Bill of Review.</p>

<p>Patent — New Combination of Old Ingredients — Substitution of New Ingredient — Gill v. Wells, 21 Wall. 1. — The substitution of a new ingredient in a patented combination of old ingredients does not constitute an infringement.</p>

<p>Patent — I mphovbmknts tn Am-Heating Furnaces.</p>

<p>Infringement of Patent.</p>

<p>Letters Concerning Lotteries — Letters Addressed to Secretary or Lottery Company — Detention jby Postmistress — Injunction.—A court of equity will not grant relief where letters addressed to the secretary of a lottery company are detained by the postmistress, under the direction of the postmaster general, as having been mailed in violation of section 3894of the Itevised Statutes, providing that “no letter * * * concerning lotteries ***** shall bo carried in the mail,” where the pleadings fail to show that the letters liad no connection with the lottery business.</p>

<p>Indictment — Rev. St. § 3894 — Mailing a Letter Concerning a Lottery — Writing Described as a “Letter and Circular.” — A writing is not improperly described as a' “Letter and Circular,” in an indictment under section 3894 of the Revised Statutes, providing that “ no letter or circular concerning lotteries * * * shall be earned in the mail.”</p> <p>Same — Unnecessary Allegation — “ Concerning a Lottery Offering Prizes.” — It is not necessary to allege that the writing was one “concerning a lottery offering prizes.”</p> <p>Same — Informal Averment — Verdict—Arrest of Judgment. — The informal averment of facts necessary to show the illegal quality of the writing is cured by verdict, and will not sustain a motion in arrest of judgment.</p> <p>Same — Unnecessary Averment — Lottery in the Sense Contemplated by the Statute. — It is not necessary to allege facts showing that the writing set forth concerned a lottery, “in the sense contemplated Try the statute,” when it clearly appears upon the face of such writing that it was such a letter as was within the prohibition of the statute.</p> <p>Same — Circular—Allegations .in ILec Verba. — A circular alleged to have been mailed in violation of the statute should be set forth in hcec verba, and the omission is not cured by verdict.</p> <p>Trial — Juror— “ Prejudice Against the Lottery Business.” — A juror is not rendered incompetent, upon the trial of such indictment, by the fact that he has a prejudice against the lottery business or those who are engaged in it, or that he is disposed in his mind to put an end to the traiEc in lottery tickets, or that he is in favor of active measures for the suppression of such business.</p> <p>Evidence — Papers Enclosed with Letter — Res Gestae. — Papers enclosed in the same envelope with the writing set forth in the indictment, are admissible in evidence as part of the res gestee.</p> <p>Circumstantial Evidence — Proof of Motive and Opportunity to Commit tbte Offence. — Circumstantial evidence is competent which tends to show that the defendant had both motive and opportunity to mail the writing in violation of the statute.</p> <p>Judicial Discretion — Re-opening Case — Proof of Lottery. — It was within the discretion of the judge who presided at the trial to permit the case to be re-opened, in order to permit the prosecution to prove the existence of the lottery, concerning which the papers in question were made.</p> <p>Statute Incorporating Lottery — -Public Statute — Proof—Statute Book. — The act of the state of Louisiana, (Laws 3868, pp. 24-26,) entitled “An act to increase the revenues of the state, and to authorize the incorporation and establishment of the Louisiana State Lottery Company, and to repeal certain acts now in force,” is a public act, and can be proved by the introduction in evidence of the statute hook containing it.</p> <p>Evidence —Proof of Incorporation Under Statute. — It was not neccessary for the government to prove that the lottery was organized under the Louisiana statute, or that the parties who issued certain lottery tickets enclosed in the same envelope with the letter, purporting to be issued by the Louisiana State Lottery, were a corporation, as they purported to be.</p> <p>Same —Proof of Lottery. — The evidence of the Louisiana statute, and of the sale of the lottery tickets contained in the mailed envelope, were sufficient to establish the existence of the lottery, in the abseneo of any evidence to the contrary.</p> <p>Same — Proof that Letter Belated to a Lottery. — The surrounding circumstances, and the occupation of the defendant, were admissible in evidence in order to prove that the letter and circular related to a lottery.</p> <p>Same — Proof that Defendant Unlawfully Mailed Tina Letter.— “Where it was undisputed that the defendant was engaged in the lottery business, evidence that defendant received an order for two lottery-tickets such as were subsequently mailed with the letter; that the name used in the address of the letter was the same as that signed to the order; that the tickets boro his stamp, and that the letter enclosed his business card, would justify the conclusion that the defendant deposited the letter in the post-office for mailing.</p> <p>Same — Post-Office Stamp — Proof that Letter was Mailed. — The post-office stamp upon the envelope is prima facie proof that the letter was mailed, although it be shown that, in aid of justice, postmasters sometimes furnish empty envelopes bearing the post-office stamp, where the same have never in fact been through the mail.</p>

<p>Foreclosure by Advertisement — Notice of Sale — Claim for Attorney’s Fees. — The insertion of a claim for $50, for attorney’s fees, in the published notice of a foreclosure sale, under a statute of the state of Minnesota, where the mortgage only stipulated for the payment of $25 for attorney’s fees, in the event of such foreclosure, will not invalidate a sale made in accordance with such notice, in the absence of fraud and prejudice to the mortgagor or owner of the equity of redemption.</p> <p>Same — Sale of Several Tracts in One Parcel. — The sale of several tracts in one parcel, contrary to the provisions of such statute, will not be disturbed, in the absence of fraud and prejudice to the mortgagor or owner of the equity of redemption.</p> <p>UOAIESTEAB — SAM IJNDISB FORECLOSURE — REDEMPTION BY ASSIGNEE IN Bankruptcy. — 'The redemption, of a homestead from foreclosure sale by an assignee in bankruptcy does not enure to tlie benefit of the bankrupt and his assigns.</p>

<p>Account — Joinder of Administrator and Sureties in the Same Suit — Payne v. Hook, 7 Wall. 425; 14 Wall. 252, Followed. — An. administrator and his sureties may be joiuod in a suit against, the administrator for an account and settlement,, and for judgment against the sureties for the balance found due upon tiie settlement of such account.</p> <p>Administrator — Sureties—Fraudulent and Collusive Claim. — It cannot be determined upon demurrer whether such sureties are liable for the alleged fraud and collusion of the administrator in the proof and allowance of his own individual claim against the estate of his intestate.</p>

<p>Life Insurance — Warranty—Averment of Applicant that he is a Single Man. — The averment of a married man, in an application for life insurance, that he is a single man, amounts to an absolute warranty.</p> <p>Attorney at Law — Compromise of Suit — Express Authority— Satisfaction of Judgment. — The entry of the satisfaction of judgment on the record of the court will not be set aside, where such satisfaction was entered, pending a writ of error to the supreme court in behalf of the defendant, upon part payment of the judgment, under a compromise with the duly authorized attorneys of the plaintiff, although such entry of satisfaction was not made in open court, and the original plaintiff had died pending such compromise, and the authority of the attorneys had not been ratified by the administrator de bonis non.</p>

<p>Bemurrer to plea to the jurisdiction.</p>

<p>Practice — Supersedeas—Motion for a new Trial — Section 1007, Rev. St., Construed. — A writ of error will operate as a supersedeas, under section 1007 of the Rev. St,, if duly served “within 60 days, Sundays exclusive,” after a motion for a new trial has been overruled.</p>

<p>Motion to remand cause to the state court.</p>

In Bankruptcy. Sur rule upon petition of William T. Carter to show cause why the adjudication in bankruptcy should not be set aside, etc.

Burnett & Turner were partners in the business of keeping a wharf-boat at Helena. The firm owned a wharf-boat, which was purchased and used for partnership purposes, and was partnership property. This wharf-boat was purchased from Johnson, partially or wholly upon credit.

This action was brought to recover for an alleged loss on a fire policy. The complaint alleged the plaintiff was a citizen of the state of Arkansas, and that the defendant was a corporation created by the laws of the state of Louisiana and a' citizen of that state “doing business and taking risks of insurance in the state of Arkansas, ” and that plaintiff paid the premium and the defendant issued to him the policy in suit.

<p>Ownership of Vessel — Action in Personam for Repairs. — Where E., a married woman, furnished money to a firm of ship-brokers for the purchase of a vessel, under an agreement that they were to manage and charter her, and if the money was not repaid at a certain time the vessel was tobe the property of E., and a carpenter brought suit in personam against E. for a bill of repairs made upon order of the brokers, without any knowledge by him at the time that they were not the legal and sole owners, and the district court had held that the agreement was not proved so as to make the brokers liable as owners, upon appeal to the circuit court and further evidence taken, held, that the defence set up was established, and the brokers were the owners pro haa vice.</p>

<p>Removal of Causes — Costs in State Court — Stay of Proceedings— Jurisdiction. — A state court is without jurisdiction to award costs in an action, or to make any order whatever, after the cause is duly removed to the U. S. circuit court. A.motion for stay of proceedings in this court, because costs so awarded without jurisdiction have not been paid, denied.</p>

<p>Plea in Abatement — Prior Action Pending — Counter Claim, — An action wherein defendant had set up a counter claim was removed from the state court to the U. S. circuit court. Subsequently another action, begun by the defendant in the first suit against the plaintiff, was also removed to the U. S. circuit court, and noticed for trial. At the time of the hearing in the second action a motion was granted in the first action, and an order made, permitting the withdrawal of the counter claim. Held, that such an order, under the circumstances, did not defeat the plea in abatement in the second action of another action pending between the same parties,</p>

<p>Treaty-making Power. — Under section 10, art. l, of the constitution of the United States, and section 2, art. 2, the treaty-making power has been surrendered by the states to the national government, and vested in tlie president and senate of the United States.</p> <p>Treaties — Effect of. — Under article 1, the constitution of the United States and laws made in pursuance thereof, and treaties made under its authority, are the supreme law of the land; and the judges in every stale, both state and national, are bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.</p> <p>Chinese Treaty within Treaty-making Power. — The provisions of articles 5 and 6 of the treaty with China of June 18, 1868, recognizing tlie right of the citizens of China to (¡migrate to the United States for purposes of curiosity, trade and permanent residence, and providing that Chinese subjects residing in tlie' United Slates shall enjoy the same privileges, immunities, and exemptions in respect to travel and residence as may be enjoyed by the citizens or subjects of the most favored nations, (16 Stat. 740,) are within tlie treaty-making power conferred by tlie constitution upon the president and senate, and are valid, and constitute a part of the supreme law of the land.</p> <p>Constitution of California — Treaty.—Any provision of the constitution or laws of California in conflict with the treaty with China is void.</p> <p>Section 2 of Art. 19 of the Constitution of California, providing that no corporation formed under the laws of tlie state shall, directly or indirectly, in any capacity, employ any Chinese or Mongolian, and requiring the legislature to pass such laws as may be necessary to enforce the provision, is in conflict with articles 5 and 6 of said treaty with China, and is void.</p> <p>Act making it an Offence to Employ Chinese. — The act of February 13, 1880, to enforce said article of the constitution making it an offence for any officer, director, agent, etc., of a corporation to employ Chinese violates the treaty with China, and is void.</p> <p>The Privileges and Immunities which, under the treaty, the Chinese are entitled to enjoy to the same extent as enjoyed by the subjects of the most favored nation, are all those rights which are fundamental, and of right belong to citizens of all free governments; and among them is the right to labor, and to pursue any lawful employment in a lawful manner.</p> <p>Labor — Property.—Property is everything which has an exchangeable value. Labor is properly, and the right to make it available is next in importance to the right to life and liberty,</p> <p>Fourteenth Amendment to National Constitution. — The provisions of article 19 of the constitution of California, and said act of the legislature passed to enforce it, prohibiting the employment of Chinese, are also in conflict with the provisions of the fourteenth amendment to the constitution of the United States, and are void on that ground.</p> <p>Same. — Said provisions are in conflict with that part of the said fourteenth amendment which provides that no state shall deprive any person of life, liberty, or property, without due process of law.</p> <p>Same. — They are also in conflict with that portion of said amendment which provides that no state shall deprive any person within its jurisdiction of the equal protection of the laws.</p> <p>Chinese or Mongolians, residing within the jurisdiction of California, are “ persons ” within the meaning of the term as used in the said fourteenth amendment to the constitution.</p> <p>Sections 1977 and 1978 oe the Revised Statutes oe the United States were passed in pursuance of said fourteenth amendment, and to give it effect; and said constitutional and statutory provisions of the state of California are in conflict with said provisions of the Revised Statutes.</p> <p>Discriminating Legislation by a state against any class of persons, or against persons of any particular race or nation, in whatever form it may be expressed, deprives such class of persons, or persons of such particular race or nation, of the equal protection of the laws, and is prohibited by the fourteenth amendment.</p> <p>This Inhibition oe the Fourteenth Amendment upon a State applies to all the instrumentalities and agencies employed in the administration ' of its government; to its executive, legislative and judicial departments, and to the subordinate legislative bodies of counties and cities.</p> <p>Power over Corporations. — Where the state legislation, under its reserved power to alter and repeal charters of corporations, comes in conflict with valid treaty stipulations, and with the constitution of the United States, it is void.</p> <p>Same. — Where the policy of state legislation, under its reserved power to alter or repeal charters of corporations, does not have in view the relations of the corporations to the state as the object to be effected, but seeks to reach the Chinese and exclude them from a large field of labor, the ultimate object being to drive them from the state, in violation of their rights under the constitution and treaty stipulations — the discriminating legislation being only the means by which the end is to be attained — the end sought is a violation of the constitution and treaty, and the legislation as such is void.</p> <p>Unlaweul Object. — Where the object sought is unlawful, it is unlawful to use any means to accomplish the object.</p> <p>Unconstitutional Act. — That which cannot be constitutionally done directly, cannot be done indirectly.</p> <p>Section 31, Art. 4, op toe Constitution op California, which provides that all general laws passed for the formation of private corporations may he altered from time to time, or repealed, does not authorize the legislature to forbid the employment by corporations of persons of a particular class or nationality. Hoffman, D. J.</p> <p>Consequences of a Persistent Violation op Treaties by a State Discussed, and attention called to the stringent criminal laws passed by congress to enforce the fourteenth amendment.</p>

This was an action in the nature of an action of trespass , upon a lode mining claim, in the Bo die mining district, California, in which the defendant pleaded title to the locus in quo. The case was removed from the state court to the circuit court of the United States, where it was tried by a jury.

<p>Removal oe Causes Uhdeb Act oe 1875. — Under the first clause of the second section of the act of 1875, which reads, “In any suit of a civil nature, * * * in which there shall be a controversy between citizens of different states, * # * either party may remove said suit,” etc., it is necessary, to authorize a removal, that all tho persons on one side shall he citizens of different states from those on the other side of the controversy. But to determine the right of removal the parties may he transposed and arranged on opposite sides of the controversy according to their real interests, without regard to their formal position on the record as plaintiffs or defendants.</p> <p>Removal Urdes Sectior 639, Rev. St. — B., a citizen of California, filed his bill in equity as a stockholder therein against the O. V. M. Co., a California corporation, the P. W. L. & P. Co., also a California corporation ; P., a citizen of California, and M. & P., citizens of Nevada, all the latter being stockholders and officers, or agents, of both corporations, for an account between said .corporations, and between the P. W. L. & P. Co. and P. M. & P., and for a recovery from said defendants by the O. Y. M. Co. of a large amount of profits on numerous contracts alleged to have been fraudulently made in pursuance of a conspiracy, through defendants P. M. P. and O’B., acting as officers and agents of both corporations, and which profits came to the possession of P. M. P. and O’B. in dividends from P. W. L. & P. Co., the parties other than the corporations being copartners in business, and their acts complained of being their joint acts for their joint benefit as such copartners. The suit having been removed from a state court to the United States circuit court as to M. & P., citizens of Nevada, under section 639, Rev. St., on motion to remand, held, that there could not be a final determination of the whole controversy as to M. & P. without the presence of the P. W. L. & P. Co. and P., and that for this reason the suit was not removable as to M. & P. under the provisions of said section.</p>

The opinion in this cause (8 Reporter, 488) was delivered before the defendants had pleaded, and while the case was before the court solely on a master’s report, upon exceptions taken by defendants. to the bill for scandal and impertinence.

<p>Corporation — Extinction—Plea in Abatement. Where certain, persons were served with process as the representatives of an alleged corporation, the plaintiff cannot preclude them, from pleading in their own names the extinction of such corporation.</p>

On the 8th day of February, 1875, the defendant John Hartly, recovered judgment in the circuit court of White county, Arkansas, against Thomas J. Oliphant for the sum of $280.27, upon which judgment execution was issued and returned nulla bona.

<p>Contract — Mental Condition. — Facts upon winch, it was held the mental condition of a party was such as to incapacitate him to enter into a valid contract.</p> <p>Same — Imposition—Equitable Relief. — Against the consequences of mistaken judgment, or mere imprudence and folly on the part of one making a contract, courts can grant no relief. But the acts and contracts of persons who are of weak understanding, and who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justifies the conclusion that the party has not exercised a deliberate judgment, but has been imposed upon, circumvented or overcome by cunning artifice or undue influence.</p> <p>Same — Exercise of Reasoning Faculties. — A party is not barred by a contract entered into when his mental condition is such as to preclude any fair or reasonable exercise of the reasoning faculties.</p> <p>Same — Incapacity—Expert Testimony. — Opinions of witnesses not experts are competent evidence on the question of capacity or incapacity to make a contract, when the facts or circumstances are disclosed on which they found their opinions.</p>

In Bankruptcy. Sur petitions of H. V. Claus and of Julius Heffner for orders on the assignee to pay certain alleged labor claims as preferred claims.

<p>Motion to Remand.</p>

<p>Opinion sur motion for a new trial, and on questions of law reserved.</p>

<p>Patent — Patentee Sole Inventor — Burden ov Proof. — In a suit for an alleged infringement of letters patent, the burden of proof is on the defendant to show that the patentee was not the sole inventor, although prior thereto foreign letters had been issued to such patentee and another for the same invention.</p> <p>Commissioner's Decision — Formal Defects not Keviewarle Collaterally. — In such suit the commissioner’s decision is final that the drawings and the model required by the statute had been presented, that the attorney of the applicant was duly constituted by the applicant, and had authority to amend or alter the specification, and that the specification had been sufficiently sworn to by the inventor.</p> <p>CoiiiiiNATioN — Valid Claim. — A claim is not invalid upon tho ground that the several elementary parts of a combination have no conjoint action, and no active connection to produce a joint result, where there was invention in the combination, and the patentee was the first inventor.</p> <p>Same — Invention.—In determining whether there was invention in any particular combination, the important point is to ascertain whether novelty and utility existed</p> <p>Omission of Claim in Statement of invention. — A patent is not void by reason of the omission of a claim in the statement of the invention in the body of the specification, which had been introduced by way of amendment into the claim, where tho combination recited in the claim is shown in the drawings and described in the specification.</p>

<p>Patent — Restraining Order. — The function of a restraining order is to protect the plaintiff without unnecessarily oppressing or annoying the defendant, and will, therefore, be framed according to the circumstances of each case.</p> <p>Same — Decree of Court — Ground for Restrainting Order. — In the case of an infringement the final decree of a court of competent jurisdiction, restraining the validity of a patent, in the absence of collusion, furnishes a sufficient basis for an injunction or some form of a restraining or "accounting order. . '</p> <p>Same — Proof in Absence of Decree. — “If there has been no decision as to the patent by a United States court, on the merits, the party is driven to show that his patent went into use undisputed for a sufficient time to raise a prima facie case in his favor. ’ ’</p>

<p>Infringement of Patent.</p>

<p>Admiralty Jurisdiction — Maritime Tort on Canal — “Navhuble Water of the United States.” — ■An alleged maritime tort, committed upon an artificial water-way or canal opened by a state for tlie purposes of commerce, is within the admiralty jurisdiction of the United States courts, where such water-way is in fact used as a highway of commerce between the states of the Union and between foreign countries.</p>

<p>Consignee of Entibe Cargo — Place of Discharge — Inaccessible and Hazardous Wharf. — The consignee of an entire cargo has no right to designate, as the place of discharge within the port, a wharf which is unreasonably inconvenient, inaccessible, or extra, hazardous to the vessel.</p> <p>Private Wharf. — A private wharf is a proper place to discharge a cargo, where it can be used by strangers upon the payment of compensation. Tender — Refusal to Receive Cargo. — A refusal to receive cargo after due notice, and after the lapse of a reasonable time given the consignee to accept, dispenses with the necessity of a formal tender.</p> <p>Bill of Lading — Evidence.—Evidence of prior conversations is inadmissible to vary the provisions of a bill of lading.</p>

<p>Collision — Evidence—Burden of Proof. — “ In the case of injury from a collision the burden of proof is upon the libellant to show, by a fair preponderance of the evidence, that the collision happened, and that it was the cause of the injury.”</p>

<p>Common Carrier — Bill oe Lading — Limitation oe Liability-Negligence — Lockwood v. R. Co. 17 Wall. 357. — Where a common carrier has been guilty of negligence, he cannot avail himself of a provision in a bill of lading limiting his liability to £100.*</p> <p>Same — Consignee—.Notice oe Time and Place Vessel Would Discharge Cargo. — The mere fact that the libellant’s agent knew of the arrival of the ship does not dispense with the necessity of actual notice of the time and place the vessel would discharge her cargo.</p> <p>Same — Negligence—Goods on Pieb Awaiting Transeer to Public Warehouse. — A ship is liable in rem where goods are stolen through negligence, while still in the custody of the owners of the ship, after being discharged on a pier, and waiting to be conveyed to the public warehouse by the public carman.</p>

<p>Collision — Steamer and Vessel — Burden of Proof. — In case of a collision between a steamer and sailing vessel, the steamer is hold in ault unless it can be shown that she was prevented from performing her duty by some fault on the part of the sailing vessel.</p> <p>Same — Impending Disaster — Duty op Master. — Where the collision was impending through the fault of the steamer, the mailer of the sailing vessel is only required to act with reasonable skill and judgment.</p>

In Admiralty. Libel by the master and owners of a barge against the consignees of a cargo to recover damages for detention of the vessel. An answer was filed and testimony taken, which disclosed the following facts: Respondents, who were manufacturers in Philadelphia, purchased of Bright, Thomas & Co., of that city, 1,200 tons of coal, to be delivered by the vendors “along-side Kersey’s wharf,” on the Schuylkill river, at $1.75 per ton.

<p>Patent — Infringement—Damages—Evidence.—A rescinded contract in relation to tlie payment of royalty for the use of a patent is not competent evidence in determining tlie measure of damages for tlie infringement of the same.</p> <p>Exceptions of complainant to report of master as to assessment of damages.</p>

<p>Payment to Administrator — Letters Issued During Absence or Creditor from State — “Due Process of Law” — Estoppel. Payment to a foreign, administrator upon tlie presentation of ancillary letters duly issued by a surrogate upon the proof of the original letters issued under a statute of the foreign slate, providing that “if any person shall be absent from this state for the term of three years, without due proof of his being alive, administration may be granted upon such person’s estate as if he were dead,” will not avail as a deles „r to the subsequent demand of the creditor.</p>

<p>Motion for new trial.</p>

<p>Motion for new trial.</p>

The bill sehfórth that complainant had for over 16 years manufactured smoking tobacco, and had adopted, and continuously and exclusively used during that time, a trade-mark, a prominent characteristic trait of which was the arbitrarily selected word-symbol “Lone Jack;” that he affixed this trademark, by means of printed labels and wrappers, to his smoking tobacco, which was put up in various styles of packages, including the form commonly known as cigarettes; that although…

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

<p>Case certified up to the circuit court after trial and verdict in the district court.</p>

<p>Mandamus — Jurisdiction of tsx Circuit Courts. — The jurisdiction of the circuit courts in mandamus proceedings is not enlarged by the act of 1875.</p>

<p>Internal Revenue — Act op June 30, 1864 — Action to Recover Taxes Without an Assessment. — An action of debt may be maintained to recover taxes without an assessment, where the statute describes the subject of the taxes and fixes the rates, so that the amount may be ascertained by evidence.</p> <p>Same — Assessment Made and Raid — Subsequent Suit por Balance Beyond Assessment. — An assessment and payment are not a bar to a suit for the recovery of an amount claimed to be due over and above the amount which has been thus assessed and paid.</p> <p>Bame — Corporation—Statute op Limitations. — The limitation of 15 months within which an assessment may be made has no application to an action against a corporation for taxes imposed by statute. Railroad Corporation — Lease.—The lease of a railroad does not dissolve such corporation, and it may still be sued for liabilities incurred prior to such lease.</p> <p>Same — Depreciation op Assets — Deduction prom Propits. — The depreciation of assets during a certain period cannot be deducted from profits earned during the same period, in determining the taxable profits of a railroad corporation under the act of June 30, 1864.</p>

Trover, by the assignee of certain warehouse receipts, to recover for the wrongful conversion of the property.

<p>Wabash <& Erie Oanal — Tow-Path—Absolute Title op State— Conveyance to Trustees — Abandonment.—Tlie state of Indiana, under various acts of the legislature, acquired the absolute title to the tow-path of the Wabash & Erie Canal, and the mere fact that the land ceased to be used for that purpose did not re-vest the same in the original owners, where the property in controversy had been transferred to trustees for the benefit of creditors of the state.</p>

<p>Assignment nor Benefit on Creditors — Indiana Statu hss Construed. Under tlie statutes of Indiana an assignment for tire benefit of credit-tors is not void, (1) because the assignees did not make oath that the indentures and schedules required by the law contained a statement of all the property belonging to them, and did not make oath to other facts named in the statute; (2) because the trustees, before entering upon their trust, did not make oath that they would faithfully execute the same, together with other things named in the statute; (3) because the assignees reserved in the deed the right to instruct the trustees as to their duties; (4) because they reserved the right, with the consent of two-thirds in value of their creditors, to remove one or all of the trustees; (5) because they authorized the trustees to sell the property on credit, or in any other manner that might seem for the best interest of all the creditors.</p>

<p>Two Patents fob Same Invention. — Of two patents for the sama invention the one last granted is void, although it may have been first applied for.</p> <p>Same — How Identity of Invention is Determined. — Whether two patents cover the same invention must be determined by the tenor and scope of their claims, not by the description in the specifications.</p> <p>Sepabate Patents fob Sevebable Pabts of Same Invention. — Separate patents 'for severable parts of the same invention may be patented, although the.whole invention is fully described in each of them, to explain the purpose and mode of operation of the parts covered by the claims.in such patents.</p> <p>Combination of Patented. Device with Otheb Devices. — The connection or combination of a patented device or improvement with other devices may be the subject of a valid subsequent patent.</p>

<p>"Wages — Disabled Seaman Left by Master in Foreign Port. — A seaman, though sick, who is left by the master in. a foreign port, without his consent and without being discharged, is entitled to his wages up to the end of the voyage, or until he can get back to his home port.</p> <p>Same — Rev. St. § 4582 — Payment to Consul in Foreign Port. — Sec tion 4582 of the Revised Statutes, has no application to a seaman discharged in a foreign port without his consent; and enforced payment of wages to a foreign consul, under the provisions of that statute, will not affect the rights of the libellant.</p>

<p>Injury to Tow-Boat — Duty of Steamboat in Passing Tow. — If a steamboat cannot safely pass on either side of a tow, traveling in the same direction, it is her duty to wait until they have reached, a point where she can thus pass in safety.</p> <p>Same — Same—Tow on the Wrong Side of the Channel. — The mere fact that the tow was on the wrong side of the channel would not justify the steamboat in violating her plain duty to keep out of the way of the tow, when she had such tow in plain sight, and was able to do so.</p>

<p>Collision — Contribution fob Cargo Out op Damages Due por Loss op Vessel — Pleading—Amendment—Conformation op Decree to Facts Arising after Libel has been Filed.</p>

<p>Towage Service — Salvage.</p>

Despondent was duly empanelled as a juror in the case of The United States v. Sigmund and Feist Rothschild, indicted with Marcus Burnstine and others for conspiracy to defraud the government.

<p>Motion for injunction.</p>

<p>Mortgage — Assignee—Secret Equities. — The assignee of a mortgage takes it free and discharged from the secret equities of third persons.</p>

<p>Insurance — False Statement — Fraud. —A mere wilfully false statement will not work a forfeiture of a policy of insurance, under a condition that “ all fraud or attempt at, fraud, by false swearing or otherwise,” should cause such forfeiture, when such false statement could not deceive the insurance company to its injury.</p> <p>Trial — Proofs of Loss — Omission to Charge. — The omission to charge that the proofs of loss were not evidence of value, although requested by the defendant, did not constitute an error under the circumstances of this case.</p>

The plaintiffs sued out a writ of attachment, and caused it to be levied upon a stock of goods as the property of the defendant Amanda Teah. Edward Hunt and Abram Teah intervened in the suit, and filed their petition, claiming the property attached under an instrument claimed by them to be a mortgage, or deed of trust in the nature of a mortgage.

<p>Equity Pkactice — Sbbvioe of Subpoena-Equity Bulb 13. — The thirteenth equity rule, which declares that the service of all subpoenas shall be by a delivery of a copy thereof, by the officer serving the same, to the defendant personally, or by leaving a copy thereof at tlie dwelling-house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family, does not require the copy of the subpoena to be left with a person in the dwelling-house, but is satisfied by a service at the door, outside the dwelling-house.</p> <p>Same — Mabsiial’s Retuen — Amendment.—Courts have the power to permit officers to amend their returns to both mesne and final process, and the power is exercised liberally in the interest of justice, especially when the rights of third parties are not to be affected by the amendment.</p>

This case was argued by Mr. Holstein, district attorney, for the government, and Mr. George Butler for the defendant, it being submitted to both judges by agreement, though tried in the district court, in order to take the opinion of the circuit judge, who concurred with the district judge.

Motion in arrest of judgment, after verdict, upon proseeution by information for a violation of section 5461 of the Bevised Statutes. The information charged “that John Gf.

<p>Bemoval oe Cause — Several Controversies in Same SurT — Act oe March 3, 1875. — Under the second section of tlie act of March 3, 1875, (c. 137,) a suit may he removed from the state court into the circuit court of the United States for the proper district, when there are several controversies in the same suit that are properly severable in their character, on the application of any one or more plaintiffs or defendants actually interested in any one of such controversies, and who may reside iii a state other than the one in which the other party to the controversy resides, although, in such suit, the court may thereby take along with it jurisdiction of a controversy between citizens of the same state.</p>

<p>Motion to remand.</p>

<p>Partnership — Conjoint Firm — Individual Partners. — There would seem to be noJegal difficulty in the way of treating two firms as individual partners in a conjoint firm, if such be the obvious intention of the parties.</p> <p>Same — Bankruptcy of Member of Firm — Claim Proved by Firm nsr Competition with Creditors of Conjoint Firm — Compromise.—One of such firms cannot, in competition with the creditors of the conjoint firm, prove a claim for the part payment of the partnership debts, against a bankrupt member of the other firm, where such creditors had released such partnership from all further obligation, upon the express consideration that the individual liability of the bankrupt for the residue of such partnership debt should not be impaired.</p> <p>Same — Same—Unlawful Preference — Kev. St. § 5128. — Such contract, made within four months of the filing of the petition in bankruptcy, did not constitute a preference in favor of the partnership creditors under section 5128 of the Kevised Statutes.</p> <p>Bankruptcy — Dividend Declared Under a Trust — Proof of Whole Claim. — A creditor cannot prove the full amount of his claim against the estate of a bankrupt, where a dividend has been declared in favor of such creditor, under a trust for the benefit of creditors, prior to the filing1 of the petition in bankruptcy.</p> <p>Same — Proof of Claim: — Declaration of Dividend Under Trust After Proof of Debt. — Nothing less, however, than the payment of a sum of money, or the present right to receive such money before the proof of debt is made, will prevent a creditor from proving for the whole amount of his claim.</p> <p>Same — Same—Fraudulent Conversion of Firm Property by Bankrupt Partners. — If a partner has fraudulently converted property or money of the firm to his own use there would seem to he no reason why proof on behalf of the joint estate should not be allowed in respect of such property against his separate estate and in competition with his separate creditors.</p> <p>Same — Same—When Abstraction of Funds not Fraudulent. — In order to constitute fraud, however, in such a case, there must be something more than a mere abstraction of the funds without the knowledge of the copartner, particularly if it be done by one having the sole management of the business.</p>

<p>.Partnership — Conversion of Chattels by Act of Partner. — Tí' a firm acting through, an agent or one of the partners, while engaged in the regular course of the business of the firm, innocently or wrongfully appropriates chattels, other than money, or whát has the quality of money, and sells it, and receives and uses in its business the proceeds, or, without a sale, uses it in the firm’s business, the firm is liable for conversion, and it is wholly immaterial that all or any of the members of the firm were ignorant of the wrong committed, or innocent of any wrongful intent.</p> <p>Same — Conversion of Money by Act of Partner. — The firm is liable for the misappropriation of money under such circumstances where the innocent partner, on the facts proved, appears to have no equity to avail himself of the payment of the money to the firm, as a payment between himself and his copartner, of money in settlement or adjustment of any balance due to him on account of the partnership business, or as a payment of money to him upon any consideration whatever, in receiving which he relied up on his copartner’s possession as proof of ownership, where by reasonable inquiry sucli innocent partner could have discovered the source from which the misappropriated money came.</p> <p>Same — Conversion by Pirm. — A firm is liable for conversion, where an individual partner fraudulently drew and deposited checks and hypothecated securities for the benefit of the firm, without first receiving the proceeds of such checks and hypothecations.</p>

<p>Bankruptcy — Petition eor Discharge — New Notice to Creditors. While a case is still before a register it is competent for the bankrupt court to order that the register adjourn proceedings, on petition for a discharge, to another day, and that a new notice be issued to creditors to appear and show cause, where a bankrupt firm has been held liable for a doubtful but duly scheduled claim, in order that other creditors, in the like position, though not named in the schedule, may have an opportunity to be heard.</p>

<p>Bankhupcy — Seat nr New York Stock Exchan ge. — A seat in tbe Yew York Stock Exchange is property which, passes to an assignee in bankruptcy, and the court will require the bankrupt to make a transfer of the same.</p>

<p>Bankruptcy — Discharge — Jurisdiction of Court — Seat in Stock Exchange — Rev. St. 5604, 5051. — A bankrupt cannot be compelled, after his discharge, by an order of the court having jurisdiction of the bankruptcy proceedings, to execute such instruments as may be necessary to enable the assignee to make available, as assets of the bankrupt’s estate, a seat in the New York Stock Exchange held by the bankrupt at the time of the filing of his petition.</p>

<p>Bankruptcy — Property Subject to Assignment — Title op Third Person — In re Beal, 2 N. B. B. 587. — Whatever money or property is in the possession of the bankrupt at the time of filing his petition, which he is actually using and holding as his own, passes to his assignee in bankruptcy, and he cannot set up in defence to the claim of the assignee the title of a prior assignee under a general assignment for the benefit of creditors, merely for the purpose of retaining such property in his own possession.</p>

<p>Bankruptcy — Specifications in Opposition to Discharge op Bankrupt — Newly Discovered Evidence — Rev. St. § 5120. — Section 5130 of the Revised Statutes does not authorize a rehearing or now trial upon specifications filed in opposition to the discharge of a bankrupt heard and determined before the discharge, even if the opposing creditor can adduce new facts, happening since the discharge, which would he competent evidence if a new trial were authorized by the statute.</p>

<p>Bankruptcy — Res Adjudioata — Estoppel.—An assignee in bankruptcy is not estopped by tlie record oí a personal judgment.</p>

<p>Patent — New Combination of Old Elements — Omission of Claim,— A distinct claim i'or each, of the constituents of a new combination of old elements will not protect such combination where there has been no specific claim for the saíne.</p>

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

<p>Patent — Injunction—License.—An injunction founded upon consent, enjoining tlie use of an invention, is not necessarily deprived of vitality by the granting of a conditional license.</p> <p>Same — Attachment—Suit Pendingi in State Court. — An attachment will not be issued for the violation of such injunction while a suit is pending in a state court of competent jurisdiction, concerning the validity of the agreement upon which the decree for the injunction was founded, and in relation to the legalitjr of the revocation of the license which authorized the use of the invention.</p>

<p>Patent — Motion for Rehearing. — The granting of a motion for a rehearing after a decree for an injunction and account, upon the infringement of a patent, rests in the sound discretion of the judges who heard the cause.</p> <p>Same — Articles Made Before and Sold After Expiration of Patent. — Articles illegally manufactured during the life of a patent cannot lawfully be sold after the expiration of the same.</p>

<p>General Cargo — Stowage—Dangerous Article — Liability oe Ship. —“The ship is nett responsible for injury.necessarily resulting to the goods of one shipper, by a general ship, from their being carried in the same vessel with the goods of other shippers, which, by usage, are a proper part of the same general cargo; but if such injury, nevertheless, could have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods, then it is not deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather a loss occasioned by his negligence and inattention to his duty.”</p> <p>Certain bales of empty bags were shipped on an open-beam vessel, put up as a general ship, under a bill of lading stipulating for their delivery in good order, the “ perils of the sea ” excepted. The bags were placed on a temporary deck of planks, covered with mats, directly over certain tierces of bleaching powder stowed in the lower hold. Held, that the ship was liable for the destruction of such bags caused by the fumes of the bleaching powder, set free by the pressure and working of the cargo during heavy weather, without any negligence upon the part of those in charge of the vessel, in the absence of direct proof that such stowage was necessary to the trim of the vessel.</p>

<p>In Admiralty. Motion for new trial.</p>

<p>Attachment — Attachable Cbedit — Conditional Liability. — The difference between the charter money and the freight list of a steamer, payable upon the performance of the voyage and the collection of the freight according to the bills of lading, is not an attachable credit until the performance of these conditions.</p> <p>Same — Answer of GaRnishee — Payment of Debt into Court. — The answer of the garnishee, admitting an indebtedness for this difference of freight, is not conclusive as between two attaching creditors, upon the impounding of the amount of the debt after its payment into the registry of the court, in a proceeding in rem to try the title to the fund.</p> <p>Payment of Pund — Proof of Claimant. — In disposing of a fund in its registry it is competent for a court of admiralty to require proof of the right of a claimant to any part of the same.</p>

<p>Collision — Immoderate Rate of Speed — Fog.—Eleven knots an hour is an immoderate rate of speed, where the fog is so thick that vessels can only be dimly seen at the distance of a quarter of a mile.</p> <p>Same — Duty of Steamer to Stop — Vessel in a Fog. — A steamer should stop when uncertain as to the course of a sailing vessel by reason of a fog.</p> <p>Evidence — Statement of Master — Contradiction of Testimony. A statement made by the master of a steamer before the receiver of wrecks, in pursuance of the merchant’s shipping act of 1854, (17 and 18 Viet. c. 104,) is admissible in evidence to contradict the testimony of such master in a trial for collision.</p> <p>Same — Official Log. — Facts stated in an official log, made and signed by those chiefly having knowledge of the facts, must, as against the ship, be taken to be true, unless a mistake is clearly shown.</p>

<p>Collision — Negligent Bate of Speed — Unlawful An choking of Vessel — Damages.—Where a steamer collides with a vessel, unlawfully anchored in an improper and dangerous place, whiló negligently maintaining too high a rate of speed, the damages will be equally divided.'</p> <p>Police Begulation — Statutory Provision Constitutional. — An act of the legislature of the state of Maryland, (1867, c. 295,) declaring that it ■ should not be lawful to anchor any boat in a river of the state, within certian prescribed limits, in order to keep the channel free from obstructions to navigation, is not unconstitutional, as an attempt to regulate commerce among the several states, where such provision does not conflict with any regulation of congress.*</p>

<p>Oolijsion — Sailing Vessel and Steamer — Immaterial Omissions — Burden of Proof. — Tn the case of a collision between a sailing vessel and a steamer, the burden of proof is on the latter to show want of negligence, and the omission of the master of the schooner to warn the man at the wheel of the approach of the steamer, or to show a lighted torch, in accordance with section 4234 of the Revised Statutes, is immaterial, when such omissions did not contribute to the collision.</p>