Volume 13 — Federal Reporter

Heard on Motion to Remand. The Revised Statutes of the United States, § 783, require that every marshal, before he enters upon the duties of his office, shall give bond, with two good and sufficient sureties, for the faithful performance of said duties by himself and his deputies.

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

In Equity. "Under a decree of sale in this cause the marshal-was ordered to sell at public auction the interest of the bankrupts in certain real estate and leasehold property in Memphis, the terms of… Held: ‘ that the trustees took the legal estate only for the life of Haney, the trust being merely to protect the property against the marital rights of her husband.

<p>Estates oe Deceased—Investment by Legatee.</p> <p>A legatee, being also executor, of the estate of a decedent purchased an interest in a firm, using for that purpose certain funds derived from that estate, ' 'one-third of which belonged to him as legatee, one-third to a sister, and one-third to the children of a deceased brother. When he entered the firm he stipulated to become liable with the partners for its debts. He subsequently died, and Ms executor became a member of the same firm, and not only allowed the interest of his, testator in that firm to remain, but, upon the basis of certain notes payable to his testator, negotiated loans from Ayer and from a bank for the use of the firm. In an action brought by the person al representatives of the original decedent the supreme court decided that the notes in question, in fact, belonged to the estate of such decedent, and they were accordingly delivered up to his personal representatives by the parties to whom they were passed as collateral security for said loans. Thereupon the personal representatives of the original decedent brought an independent suit against the maker of the notes to enforce their payment, and in the progress of the suit the entire amount due on the notes was paid into court. Held—</p> <p>. (1) That the judgment of the supreme court deciding that'the notes belonged to the estate of the original decedent, and the decree in pursuance of the mandate requiring their delivery to his personal representatives, do not prevent the creditors of- the firm, of which his legatee was a member, from asserting in this independent suit any equity they or either of them may have, to liaye their debts paid out of the proceeds of the notes.</p> <p>(2) That tho parties who had loaned money upon the said notes as collateral, and to the extent such money had been paid by tho legatees of the original decedent, are entitled to be subrogated to the rights of the latter, less the sum paid on the notes by tho parties originally liable thereon, and interest.</p> <p>(3) That tho legatee and executor of the original decedent, having had no authority to invest in the business of tho firm the interest of his sister and the children of his deceased brother in the proceeds of the notes, the latter cannot he held liable for the debts of the firm, and the administrators of the estate of the original decedent are entitled to all tho fund in court except the one-third going to the estate of tho legatee and partner in the debtor firm, under the will of the original decedent.</p> <p>(4) That the defendants are entitled to subject to their claims against the firm the interest which the estate of T. T. Renick may have in the proceeds of the notes, but to the extent only that the money borrowed on the Harvey notes, as collateral, was applied to debts of that firm for which T. T. Renick was responsible.</p>

Demurrer to Bill in Equity. This was a bill by George H. Sellers against a corporation known as the Phcenix Iron Company, and against… Held: and was still held, by their families; that complainant had become the owner by purchase of the stock originally owned by Samuel A. Whitaker, but that all the other stock was held by the families of said David and Samuel J. Reeves, most of it, amounting to a large majority of the whole capital stock, being held or controlled by David…

These two cases were heard together, but only so much of the charge of the court and the facts relating to the points of law that were disputed by counsel are reported here. In October, 1880, the Treadwells purchased through a broker, at Memphis, one car load of meat, from the Anglo-American Packing & Provision Company, which, according to the memorandum of contract, was to he “cured meat,” to be delivered at Atchison, Kansas, “free on hoard,” freight not more that 42 cents.

<p>Petition for Writ of Habeas Corpus.</p>

<p>Abbest and Bail—Reduction of Bail.</p> <p>A party arrested in a civil action for damages for the wrongful conversion of the moneys and credits of a bank while acting as its president, and held to bail in a large amount, where it is shown that he has been tried on a criminal charge connected with the same transaction, and the jury disagreed; and where he is .already held to bail on other charges growing out of the same transactions, and where he has made an assignment of all his property for the benefit of creditors,—is entitled to a reduction on the amount of bail.</p>

Exceptions to the report of a register upon an application for a discharge.

<p>1. Patents for Inventions—Seeding-Machines.</p> <p>Where the grooves in the machine of the defendants were straight, or nearly so, while those in the machine of complainant were oblique, it is not an infringement.</p> <p>2. Same—Variance.</p> <p>A departure of one sixty-fourth of an inch from a straight line in defendant’s grooves is not a sufficient divergence to constitute an infringement of oblique grooves. A patentee must be held strictly to the language of his claim.</p> <p>3. Infringement—Responsibility of Manufacturer.</p> <p>A manufacturer cannot be held responsible for any change in the form of his machine made by third parties after it has left the manufactory.</p>

Demurrer to Answer. This is a suit brought by John Milne against John M. Douglass, receiver of the Ohio & Mississippi Railway Company, and the New York, Pennsylvania & Ohio Railroad Company, the New York, Lake Brie & Western Railroad Company, and the Red Cross Line of steamships.

<p>1. Berths on Steam-Vessels.</p> <p>Tlie provisions of section 2 of the aot of March 3, 1855, (10 St. 716; section 4255, Rev. St.,) relating to the construction and occupation of berths on vessels carrying passengers from foreign ports to the United States, are not deemed applicable to steam-vessels.</p> <p>2. Re-enactment of Statute—Former Construction of it..</p> <p>Where a statute has received a judicial construction and is afterwards re-enacted by the legislature of the same or another country, it is presumed to have been passed as construed.</p>

<p>FTegligeítce—Peesonal Istjuby—Fault or Fellow-Sebvaitt.</p> <p>Where a workman upon a vessel was injured by falling through an open hatchway negligently left open by the stevedore having charge of the discharging and loading of the vessel, and the actual negligence that caused the accident was the removal of a lamp by a fellow-workman employed at the same job with the libelant, the common employer is not liable for the injury.</p>

Libel by the master of Cross Creek Barge No. 5 against the tug Dr. John Wolverton, to recover damages for a collision. The testimony disclosed the following facts: The Wolverton, having the barge Atlanta in tow astern by a hawser, started from Robert’s stores, Brooklyn, bound for a dock in .the North river. When near the Battery she met the tug Packer, with libelant’s barge lashed to her port side, coming up the East river, after rounding the Battery.

<p>Vessels and Boats—Lien for Supplies.</p> <p>Where family supplies and hay and oats were furnished by a dealer in Buffalo on board a canal-boat lying up there for the winter, and the boat, having departed before the bills were paid and come into the eastern district of New Vork, was there libelled by the provision dealer, claiming a lien upon the boat as for maritime supplies, and it appeared on trial that the horses and man were employed at work on the streets of Buffalo, and that tie captain of the boat had not ordered the supplies, nor the woman who owned the boat, and whose husband was so at work on the streets with his horses, held, that the supplies were furnished on personal credit, and no lien on the boat arose out of the transaction.</p>

<p>Collision—Damages—Report op Commissioner.</p> <p>The estimate of damages as reported by the commissioner in a cause of collision adopted by the court.</p>

<p>Removal op Cause—Cosditons nr Boxd.</p> <p>It is essential that the bond contain a provision for the .payment of costs, and the objection that it does not may be taken at any time.</p>

<p>1. Railroads—First-Mortgage Bonds.</p> <p>When money applicable to the payment of first-mortgage bonds of a railroad company has come into the hands of the trustees for the bondholders, each holder at that time becomes immediately entitled to the share of the money applicable to his bond, and can immediately recover the same.</p> <p>2. Same—Rights oe Bondholders.</p> <p>The question whether the bondholders, who have acquired their bonds since money in the hands of the trustees applicable to the bonds accrued, are entitled to share in that money, depends upon the nature of the right, and of the transaction by which they acquired the bonds.</p> <p>3. Same—Equitable Reliee.</p> <p>The debt for which the bonds issued was a debt of the company, and property in the hands of the trustees is security for that debt, and when the debts pass the securities pass also, unless a contrary intention is shown, and the time when the parties secured their bonds is not material; and where there has accrued a large amount of money applicable and not applied on tho bonds after satisfying prior liens, the bondholders are entitled to relief against those having the money.</p>

<p>1. Judgment by Confession—Collateral Inpeaciiment.</p> <p>A judgment to secure the purchase money of real estate consisting of three pieces of land, entered upon a warrant to confess judgment, given about, ono month after the delivery to the bankrupt of a deed for one of the pieces, hut simultaneously with the delivery to lam of the deeds for the other two pieces, cannot be impeached, either in whole or part, as an unlawful preference by the assignee in bankruptcy to whom the real estate passed, it appearing that it was substantially one transaction, consummated when the two latter deeds wore delivered and the warrant to confess the judgment was given.</p> <p>2. Executors—Joint Liability.</p> <p>When two executors settled a joint account, charging themselves jointly with all the assets of the estate and exhibiting a general balance in their hands, but', by a statement appended to the account, it appeared (as the fact was) that they had actually received the assets and held the proceeds individually in stated proportions, held, that while jointly liable to the legatees for the general balance, they were not joint debtors inter se, and one of them having paid the legatees more than his individual proportion, was entitled to be subrogated to the lien against the real estate of the other, which the legatees had acquired by docketing the general balance.</p> <p>3. Bankruptcy—Judgment by Confession.</p> <p>A confessed judgment for a debt already fully secured by a prior valid lion against the bankrupt’s real estate, to which the judgment creditor had the equitable right of subrogation, is not impeachable as a fraudulent preference under the bankrupt law, for it takes nothing from the general creditors and impairs not the value of the bankrupt’s estate.</p>

<p>1. Pleading—Multifaeiousness.</p> <p>Where the purpose of the hill and the alleged foundation for relief are not so distinct in their nature as to make their joinder in one hill objectionable, but are intimately related as parts of a fraudulent scheme, and the bill so connects the defendants as to make them proper joint defendants, the bill is not multifarious.</p> <p> 2. Jurisdiction—National Banks. </p> <p>Where service upoa the defendant, a national hank, located and doing business in another state, was made under an order of court pursuant to the act of March 3, 1875, in a suit-to relieve the bankrupts’ real estate, situated in this district, from the lien of certain judgments, and to remove a cloud upon the title, the bank is an “ absent defendant,” within the purview of that act, and jurisdiction attaches.</p> <p>S. Equity—Adequate Remedy at Law.</p> <p>Where some of the matters charged in the bill are peculiarly of equitable cognizance, while allegations of fraud pervade every part of it, the case is one for equitable relief.</p> <p>A Limitations—In Bankruptcy Oases.</p> <p>Where the foundation of the bill is fraud of a nature to conceal itself, and the fraudulent scheme charged is continuous, and now actively on foot, in a suit brought by the present assignee of the bankrupts, within two years after his appointment, an averment of the absence of knowledge of the fraud by the former assignee in bankruptcy is sufficient to avoid the bar of the statute of limitations.</p>

<p>1. Damages—Negligence—Burden of Proof.</p> <p>In an action for the recovery of money advanced for the purchase and storage of merchandise, where a counter-claim is interposed alleging carelessness and negligence on the part of the plaintiff in storing the property, and claiming damages as a set-off to the claim of the plaintiff, the burden of proof is on defendant lo show negligence on the part of the plaintiff.</p> <p>2. Same—Negligence Defined.</p> <p>Negligence is a failure to do what a reasonahly-prudent man would ordinarily do under the circumstances, or in doing what such person under existing circumstances would not have done.</p> <p>8. Same—Warehousemen—Duty and Obligation.</p> <p>Warehousemen arc not required to provide against an unprecedented emergency ; but if they have reason to expect such an emergency, they are bound to take such precautionary measures to prevent, loss as prudent and skillful men in the like business and under like circumstances might be expected to use.</p> <p>4. Same.</p> <p>They are not bound to have or keep on hand special facilities to meet and overcome possible but unexpected and unprecedented emergencies, which are included in what is called the “ act of God; ” hut if imminent danger presents itself, to use such appliances and means'as the ordinary and safe conduct of their business requires them to possess, and such as are at hand, and to use them witli such promptness as would bo expected of ordinarily careful and prudent men in regard to their own, or property entrusted to their care under like circumstances.</p>

<p>1. Insurance Broker—Agent for Insured or Insurers ?—Test.</p> <p>If plaintiffs (the insured) employed an insurance broker to place insurance for them, he was their agent, and not that of the insurance company. But if, acting' on behalf of an agent of the company, the broker solicited insurance from the plaintiffs, he was the agent of the insurance company, and it is legally chargeable with his knowledge.</p> <p>2. Insurance—What Makes a General Agent in Effecting Insurance.</p> <p>When an insurance agent who is assigned by his commission 'to a certain territory, has placed in his hands the blank policies of the company, signed by the president and secretary, and is on the face of such policies authorized to make contracts of insurance by countersigning the same, he is a general agent to the extent of everything relating to the effecting of insurance within the territorial limits to which he has been assigned; and one seeking insurance is not bound- to inquire as to the precise instructions he has received from his company.</p> <p>3. Unauthorized Issue of Policy—Disavowal by Company.</p> <p>Where such an agent, in violation of private instructions given to him, issues a policy covering property in territory outside of his district, the company may either ratify or disavow sucli a policy; but the disavowal must bo prompt, and notice thereof must be brought home to the insured, otherwise the company will be deemed in law to have ratified the policy.</p> <p>4. Cancellation of Insurance Policy — Onus Pbobanbi—Sufficient Evidence.</p> <p>The burden of proving a cancellation of a policy of insurance is upon the party claiming that the contract has been terminated. Where a policy provided that the company might terminate the insurance “ by giving notice to the assured and refunding a ratable proportion of the premiums for the unexpirod term of the policy,” held, that the company must show that it had given the assured notice that the policy was canceled, and that it had paid, or tendered him, such portion of the premium; and notice, that the policy would be canceled, or a promise to pay, or a request to call for the premium, is insufficient.</p>

<p>Indictment for Illegal Voting.</p>

<p>1. Patent for Inventions—Material Elements.</p> <p>Where the inventor regarded an element as material, those who claim under the patent cannot now be heard to say that it is immaterial. .</p> <p>2. Improvement in Breech-Loading Arms.</p> <p>Patent No. 205,193, for an improvement in breech-loading fire-arms, not infringed by defendants’ fire-arms.</p>

<p>Patents for Inventions—Infrotsement—Injunction.</p> <p>Although defendants’ structure contains improvements, yet if it involves the patented invention its use may he enjoined.</p>

<p>Shipping—Negligent Stowage—Liability por Loss.</p> <p>In the stowage of drums of glycerine care must bo taken to prevent working of the tiers in case of springing of the ship, and the vessel will be liable for loss or damage where the exercise of proper care would have prevented any injury arising from any springing of the ship.»</p>

<p>Collision—Measube of Damages fqk Loss.</p> <p>In case of a total loss of a canal-boat and her cargo of coal by a collision the measure of damages is the value of the boat and of the cargo immediately preceding the collision. So, where a canal-boat was sunk in 40 feet of water, and there purchased and raised, and floated to a distance, and was there sunk and destroyed by a collision, the measure of damages was the price paid for her where she was first sunk, the value of her cargo, and the expenses incurred in raising and floating her to the place of the collision.</p>

<p>Collision— Oveutaking Vessel—Duty to Avoid Collision.</p> <p>A vessel overtaking another is required to keep out of the way of that vessel, and steps to avoid collision must he taken in season, and the burden of proof, in case of an accident, is on the overtaking vessel to show diligence on her part and negligence on the part of the other vessel. Doctrine applied to a case where the overtaking vessel was more heavily laden and doeper in tlie water than the other vessel, and both were drifting with a strong ebli-tide, with a heavy swell from the opposite direction, and the wind light and variable.</p>

In Equity. The facts were as follows: In 1869 the Kentucky legislature chartered the Cumberland & Oblo Railroad Company. Its proposed line of road passed through Allen county, defendant in this suit. The charter authorized any county through which such proposed road should pass to subscribe for stock in said company, and to issue and sell its bonds to pay for such stock.

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

<p>1. Land Grant to Railroads—Construction.</p> <p>Land grants to railroads take effect from the time that the line of the railroad is definitely fixed or located, notwithstanding the lands may not be selected till a later date.</p> <p>2. Same.</p> <p>The land-grant act of July 2,1864, was a definite and explicit grant of all the land embraced within 10 alternate sections on each side of the line of the road, on the line of the road, and not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached at (ho time the line of the road was definitely fixed; and the fact that congress did not prescribe any lateral limit in the selection of lands in lieu of those previously sold or disposed of by government, cannot affect the construction of the grant.</p> <p>3. Homestead and Pre-emption Rights.</p> <p>- The act of April 21, 1876, (19 St. 35,) passed for the protection of settlers on public lands, by pre-emption and homesteads, does not apply to a case where, prior to such pre-emption or homestead entry, the lands had been specially granted by act of congress, and had fully vested in the grantee.</p>

<p>1. Public Lands—'Withdrawal prom Sale.</p> <p>Tlie withdrawal of public lands from sale by competent authority for the purpose of appropriating them to any lawful purpose, operates to sever such lands from the public dompin, and the land department is the proper authority to make the order of withdrawal.</p> <p>2. Pacific Railroad Acts—Construed.</p> <p>On July 1, 1862, the original Pacific Railroad act was passed, granting a certain portion of the public lands for the construction of railroads; and on July 2, 1864, an amendatory act was passed enlarging the original grant. The lands in controversy were not included in the original grant, but are included in the grant under the later amendatory act, under which complainant claims title.</p> <p>• Held, that such lands, during the intervening period, were subject to be reserved from sale, pre-emption, or homestead settlement by the proper authority.</p> <p>3. Same—Title under Intervening Grant.</p> <p>Where complainant claims title under the amendatory act of 1864, and respondent claims title under an intervening act of congress of March 3. 1863, passed while the lands in controversy were subject to reservation from sale by the government, the title to the lands is in the respondent.</p>

<p>HOVATION—SUFFICIENT CONSl DERATION.</p> <p>Au agreement on the part oí a debtor to make five new notes, in accordance with the request of the creditor, for the purpose of enabling the creditor to bring suits on the new notes in the justice.’s court, which he could not do on the original claim, is an agreement upon sufficient consideration. Such an agreement cancels the original contract, and substitutes for it five new contracts.</p>

After the case had been continued for several terms, the plaintiff caused this entry to he made upon the docket: “Bill dismissed by direction of complainant.” The clerk stated bis reasons for the allowance as follows: “I based my decision solely upon the practice of the clerk’s office, under which an attorney fee of $20 is taxed for the prevailing party in every equity case disposed of by order of court, otherwise than upon agreement of parties.

<p>1. Railroads—Ejecting Passenger from Train.</p> <p>Where the legal right of a conductor of a railroad train to eject or remove a passenger from the cars exists, he must effect the removal at a proper place and in a proper manner, and with no more confusion, force, or violence than, is reasonably necessary for the purpose.</p> <p>2. Same—Duty of Conductor in Ejecting Passenger.</p> <p>Before a conductor can require a passenger to get off the cars he should stop the train at a station or depot, or where he could be put off without injury or danger of injury. He has no right to forcibly eject a passsnger at such a place and in such a manner as his whim, caprice, or malice may dictate or suggest.</p> <p>3. Same—Action—Province of Jury.</p> <p>In an action for damages for violent ejection from a car by the conductor, it is the province of the jury to reconcile difference in the testimony, and to decide as to the credibility of the witnesses, taking into consideration the relation they sustain to the case, their probable motives, their demeanor, and their opportunities of knowing and seeing the facts about which they testify, and the reasonableness or unreasonableness of their testimony, in view of the knowledge of human nature, and the established and undoubted facts in the case.</p> <p>4 Assault on Passenger.</p> <p>Where a conductor, with a loaded revolver in his hand, approaches a passenger before making, any effort to induce him to get off, and when the passenger had not made, or threatened to make forcible resistance t'o his authority, the conductor is guilty of a gross outrage.</p> <p>5. Same—Threats.</p> <p>With or without the use of a deadly weapon, a conductor has no right to compel a passenger, by commands or threats, to jump from a moving train.</p> <p>6. Railroad Companies—Duty of—Liability.</p> <p>The law makes it the duty of railroad companies to employ competent, safe, and civil men to discharge the duties of a conductor, and for the assaults, injuries, and wrongs inflicted on ^passenger by a conductor in the course of his employment as such, the railroad company is responsible.</p> <p>7. Same—Damaces—Exemplary Damages.</p> <p>Where the plaintiff was put off the train in an improper manner and in an improper place, he is entitled to recover a reasonable compensation for bodily-injury, and mental suffering and anguish, resulting from the assault; and where the injury has been wanton and malicious, a further compensation by 1 way of punishment or exemplary damages, in the discretion of tile jury.</p>

<p>1. Patents vor Inventions—Similar Contrivances.</p> <p>Where defendant’s machine employs the same contrivance as the machine of the plaintiff, it is an infringement, although it may be an improvement upon plaintiff’s patent.</p> <p>2. Utility—Evidence oe.</p> <p>If the several features or inventions separately claimed by complainant are admitted to be useful when employed in defendant’s machine, it is evidence of their usefulness in the machine of the complainant.</p>

<p>1. Admiralty—Maritime Service—Adjusting General Average.</p> <p>Services performed by average adjusters, including expenses, disbursements, and charges incidental to ascertaining and adjusting the proportionate share chargeable to the cargo of the expense incurred in saving and discharging the cargo, and delivering it, are maritime in their nature; and an express contract for such services is a maritime contract and cognizable in the admiralty.</p> <p>2. Same—Salvage—Wrecking Comdany.</p> <p>Services performed by a wrecking company in saving the cargo of a stranded vessel and transporting it in different lots to a place of safety, and there storing it, are continuous services; and every part of the cargo was interested in the whole of it, and should bear its due proportion of the whole expense of saving all that was saved.</p> <p>3. Salvage—Measdee oe Compensation.</p> <p>In estimating the compensation to be made for salvage services, not only is the service in the particular case to be regarded, but the reward is to be looked at, that it may induce aid on future occasions, by competent salvors to other property in distress; and the equipment of the Coast Wrecking Company with steamers and pumps and wrecking material and skilled men, and its readiness to act at a moment’s notice, pust be considered,</p>

<p>1. Salvage—Success an Essential Element.</p> <p>Where services rendered were not successful, the claim for salvage Will not, be allowed; success being the essential element oí a salvage service, and its absence fatal to a claim for compensation.</p> <p>2. Same—Value oe Property an Element.</p> <p>Although salvage compensation is not awarded by any fixed rate of commission on the value of the property saved, yet the value of the property saved is an element to bo taken into account when making up a salvage reward.</p> <p>8. Same—Foreign Vessels—Wiiat Law Governs.</p> <p>In a case of a salvage service performed by a British vessel in rescuing a Dutch vessel, neither the Commercial Code of the .Netherlands, nor the practice of the English courts, furnishes the law for the American courts of admiralty ; and those courts, when not fettered by statute, administer tito maritime law upon a consideration of those principles which have obtained general recognition among maritime nations, and are justly applicable to all ships that sail the seas.</p> <p>4. Same—Compensation—Liberal Keward.</p> <p>The greatness of the peril from which the salved vessel was rescued; the fact that, if she had not been taken in tow by the salving vessel, she would most likely have drifted into the same dangerous locality from which she had barely escaped; and the facts that the master of the salving vessel had abandoned his own voyage, and that by the service rendered he had brought the salved vessel into her port of destination, and relieved a large number of passengers from peril,—make up. a case meriting a liberal reward.</p>

<p>1. Removal of Cause—Defense under Constitution and Laws.</p> <p>It is sufficient, to maintain tlio jurisdiction of the circuit court in a cause removed from a state court, that the defense necessarily involves a construction of a clause of the federal constitution.</p> <p>2. Same—Assessment of Property of Railroad.</p> <p>The validity of the assessment of the property of a railroad company, and of the provisions of state law discriminating between the assessment for taxation of the property of such companies and the property of individuals; and whether the fourteenth amendment of the federal constitution applies to artificial as well as to natural persons, may depend upon the proper construction of such amendment; and the right of the company to a reduction in the estimated value of its property assessed for taxation, by the amount of the morgtage due thereon, depends upon the construction of said amendment, and constitutes a case for relief arising under the constitution and laws of the United States, and is removable into the circuit court.</p> <p>3. Same—Act of 1875—Validity of.</p> <p>The terms “suits of a civil nature, ” used in the act of 1875, providing for the removal of causes from the state court into the circuit court, are less comprehensive than the term “cases, ” in the fourteenth amendment of the federal constitution, as the latter may embrace proceedings not usually nor strictly termed suits, as well as prosecutions of a criminal n ature. There can, therefore, he no question as to the validity of the legislation of congress.</p>

<p>In Equity. Heard upon demurrer to amended bill.</p>

<p>Bill in Equity.</p>

<p>Foreclosure Sale—Postponement.</p> <p>Where the sale of mortgaged premises under a foreclosure decree, appointed for a particular date, would be ultimately detrimental to all interests to all interest cd, and good cause is shown therefor, the petition of defendants for a postponement of the sale to a future day fixed will be granted.</p>

<p>Patents eor Inventions—Process eor Marino Spoons and Porks.</p> <p>Where the patentee attained the result of producing a new thing, a silver-plated steel spoon, by a succession of old processes, which, though separately old, had not been practically grouped together in the order in which he used them, it is a patentable novelty in process.</p>

<p>1. Shipping— Carrier by Water—Rivers op the South-West.</p> <p>The rules regulating the liability of a carrier of goods by water to landings where there are wharves and warehouses, and where the consignee resides or may be found, are not applicable to neighborhood or way landings on the river banks of the south-west, where there is no wharf and no warehouse, and where the consignee does not reside, and is not to be found.</p> <p>2. Same—Usage and Custom.</p> <p>The usage and custom has been uniform that when the boat put goods oft' at such a landing in good order and condition, and the person living at or near the landing was notified of the fact, and requested to look after them and notify the consignees, the liability of the boat was at an end, and, being reasonable, contracts of affreightment will be presumed to have been made with reference to suoh usage and custom.</p> <p>3. Same—Duty and Obligations ov Consignees—Local Usage and Custom.</p> <p>Where the consignees had notice in fact of the precise character of the landing, and ordered a mill consigned to such landing, and lived at a distance from it, with no direct or speedy moans of communication between the landing and themselves, it was their duty to have been in attendance to receive the mill, or to have had an agent at or near the landing for that purpose, if they did not desire to be bound by delivery in accordance with the usage and custom of the landing.</p>

<p>1. Collision—Between Steaiieb and Sail Vessel.</p> <p>In case of a fog, and in a place much frequented by vessels, it is as much, tbe duty of a sail vessel to go at a moderate rate of speed as it is tbe duty of a steamer.</p> <p>2. Same—Lookout.</p> <p>In a caso wliore, besides a man forward, stationed as a lookout, Hiere were two persons on watch in the pilot-house oí a large ocean steamer, the lookout was sufficient.</p> <p>S. Same—Excessive Speed in Eog.</p> <p>Where a sail vessel in a fog was going at twice the speed of an approaching steamer, and neglected to show a torch-light, and the steamer was going as slow as she could go against a head-wind and a head-sea, and as soon as the steamer saw the light of the sail vessel orders were given to stop and reverse the engine, she is not in fault for a collision which ensues, from the sail vessel attempting to cross the course of the steamer.</p>

<p>1. Removal oh Cause—Time oh Application.</p> <p>Under tlie aet oí 1875 the first term during which the cause might have heen tried means the first term when the cause is legally triable, not a subsequent term to which it may have been legally postponed by agreement, or by order of the court, and it has no reference to the presence or absence of witnesses, or the crovrded state of the docket.</p> <p>2. Same—Prejudice and Local-Influence Act.</p> <p>It is only where a suit is removed on account of prejudice or local influence, under subdivision 3, § 639, Rev. St., which is not repealed by the act of 1875, that a removal may be had at any time before the final hearing.</p> <p>3. Same—Divorce—Remand on Motion of Court.</p> <p>An action for divorce a vinculo and for alimony, removed from the state court, may be remanded by this court of its own motion on suggestion of the party removing, on the ground of want of jurisdiction in this court over actions of that character.</p>

<p>1. Jurisdiction— Necessary Parties—Citizenship.</p> <p>Where the contract sued on was entered into between plaintiff and defendants, one of whom was a citizen of the same state with plaintiff, and the other a citizen of a foreign country, and both defendants are not only necessary but indispensable parties to the controversy, as shown from the face of the bill, this court is without jurisdiction.</p> <p>2. Same—Case Stated.</p> <p>Where the bill charged that complainant was induced by false and fraudulent representations of defendant, a citizen of Great Britain, and another party, a citizen of the same state with the complainant, to enter into contracts with defendant, and a contract with defendant and such third party, and that by false and fraudulent representations of both defendant and such third party he was induced to advance money pursuant to said contracts for the purchase of lands to be owned and held by them in common, held, that as to the contracts made with defendant alone, such third party was not a necessary party to the suit; blit as to the contract entered into by all three, and which contract was recited in the bill for relief, such third party was not only a necessary, but an indispensable party to the suit, and that, being a citizen of the same state with complainant, this court has no jurisdiction to grant the relief sought.</p>

<p>1. Contract—Between Citizens of Different States.</p> <p>A citizen of one state may loan money to a citizen of another state, and contract for the rate of interest allowed by the laws of the latter state, although the legal rate of interest allowed is greater in such state than in the state where the contract is made, and in which it is to bo performed. . Where it appears upon the-face of the contract that such was the intention of the parties, it constitutes an exception to the rule that the law of the place where the contract is made must govern in expounding and enforcing it.-</p> <p>2. Same—Contract not Usurious—Case Stated.</p> <p>Where a citizen of New York loaned money to a citizen of Nebraska, secured by bond and mortgage on land in Nebraska, the money being furnished in New York and the mortgage being executed in Nebraska, and the statute of New York limiting the right to interest on loans at 6 per cent, per annum, and being highly pénál, while the statute of Nebraska allowed the rate of 10 per cent, per annum, held, that the contract reserving 10 per cent, interest, the legal rate in Nebraska, was not usurious, notwithstanding that it was made in New York and was to be performed in that state^</p>

<p>1. Mechanic's Lien—'When not Waived by Taking Seotjrity.</p> <p>Tlio holder of a claim for labor or materials for a building, erection, or improvements upon land does not waive his right to a mechanic’s lien by taking security upon the same contract and upon the same property unless it appear affirmatively that it was his intention to look to such security and not to his mechanic’s lien.</p> <p>2. Same—Security to be upon the Identical Property.</p> <p>The taking of bonds secured by a mortgage on “ all the franchises, fuel, rolling stock, cars, engines, machinery, and appurtenances appertaining or belonging' to ” a single division of a railroad line which embraces four different divisions, as collateral security for a mechanic’s lien claimed upon “ building, erection, or oilier improvement, including any work of internal improvement ” on the entire line of road including the four divisions, is not equivalent to taking security upon the identical property upon which the mechanic’s lien is sought to be enforced.</p> <p>3. Foreclosure—Purchaser at Sale Protected by the Record.</p> <p>Where, in a suit to foreclose a mortgage, brought against a railroad company, third'parties intervene and seek to enforcé a claim for materials furnished or used in the construction of the roadway, against the earnings of the road in the hands of the receiver, and without claiming a mechanic’s lien, the purchaser at the foreclosure sale is not bound to look beyond what appears upon the face of the record, and anticipate a future claim for a mechanic’s lien in case the earnings of the road should not satisfy the claim of intervenors.</p>

<p>1. Mexican Land Grant—Res Adjudicata.</p> <p>Prior to the acquisition of California by tlie United States, the Mexican government granted a tract of land therein to one H. In 1857, S., claiming to be the owner of a part of tlie land so granted under title derived from II., (the claim for which part had been confirmed to the grantor of S., but no patent therefor issued,) commenced an action of ejectment against G. and others, who were in possession of the lands, also claiming to own the same under title derived from II., and who had also obtained a confirmation of their claim to the premises, but no patent. On the trial of the action the principal question litigated was whether the premises in controversy had been conveyed by a deed made by II. to one F., under whom S. claimed, and it was determined that said deed did convey the lands, and judgment was rendered in favor of S. On appeal to the stale supreme court this judgment was affirmed. Pending the litigation a patent for tlie lands was issued to the grantor of S., and some 20 years later patents were issued to G. et al. for tlie same lands. The grantees of G. etal., after the issue of tlie latter patents, brought ejectment against the grantee of S. for the lands, and on the trial of that action offered to prove that the premises in controversy were not within tlio premises convoyed by the deed from II. to F. Held, that by the trial and judgment in the former action that point was determined in favor of S. and became res adjudicata, and tlie grantee of G. et al. was estopped from again litigating the question as against 8. or his grantee, and that the issue of the patents on the claims of G. et al. did not, as to tlie question so determined, create any new title or right to again litigate the question determined by the former judgment, and that such question is not open to further litigation.</p> <p>2. Patent eor Land—Legal Title—Derivative Titles.</p> <p>M., a claimant under title derived from the original gra.ntee of a part of the lands embraced in a Mexican grant, obtained a decree of confirmation, on which a patent was issued, and other claimants of the same land, under title also claimed to have been derived from the same original grantee, and whose claim had been confirmed prior to the issue of the patent to M., obtained patents for the same land some years subsequent to the issue of the patent to M. Held—</p> <p>(1) That the issue of the patent to M. vested the entire’ legal title in him, and left nothing in the United States upon which the subsequent patents could operate, and consequently nothing passed by them. With the issue and delivery of the senior patent all authority or control of the executive department over the land passed away.</p> <p>(2) That under such circumstances, in an action at law, the senior patent is conclusive as to the title, and cannot be assailed by the holders of the junior patent.</p> <p>(3) The only remedy of the junior patentees is in equity, to charge the holder of the senior patent, if there are equitable grounds for so doing, with a trust for their benefit.</p> <p>(4) While, in a proper sense, it may be true that in acting on a claim for land based on a Mexican grant, the United States has no interest in the derivative title from the original grantee of the Mexican government, yet where one held such a derivative title prior to the transfer of California to the United States, be was one of tbe parties protected by tbe stipulations of tbe treaty, and it would seem was as much entitled to have bis deed from tbe original grantee passed upon, as be was to have tbe original grant itself passed upon.</p> <p>(5) Tbe cases in which it has been held admissible, in an action at law between the holders of senior and junior patents for tbe same land, to examine into tbe equities for tbe purpose of attaching a prior equity to tbe junior patent, are all cases where the parties have sought to acquire lands belonging to tbe United States upon different a,nd independent adverse claims, and have no application to a case where both parties claim under tbe same original grant or right, though by different derivative titles.</p> <p>(6) Where two parties claim the same land under different derivative titles from the original grantee of the Mexican government, and one of them obtains a patent for the lands, the right, if any, of the other to relief in equity accrues on the day the patent issues. The cause of suit is full, complete, and perfect on that day, and is not dependent and cannot rest upon any subsequent proceeding or patent.</p> <p>Semble, where such equitable action is not commenced until a time when by the state statute of limitations it would be barred, the United States circuit court, although a court of equity, and not absolutely bound by that statute, may, in analogy thereto, hold the cause to be stale, and decline on that ground to sustain a bill.</p> <p>The question whether a patent gives a new cause of action so as to avoid the statute of limitations, where both parties claim under the same grant, not determined.</p>

<p>Patents for Inventions—Process—Not an Infringement.</p> <p>Where defendants’ process is not the patented process, hut omits a patented step, and in its stead includes one which the patentee intended to avoid, it is not an infringement.</p>

<p>1. Removal of Cause—On Ground ob- Citizenship.</p> <p>A causo is not removable under tlie first clau.se of section 2 of the act of March 3, 1875, unless all the parties on one side are citizens of different states from-those on the oilier, and all the defendants must join in the petition.</p> <p>2. Same—Separate Controversy.</p> <p>A suit is not removable under the second clause of that section unless it is a separate controversy, wholly between citizens of different states.</p> <p>3. Repeal of Act of 1866.</p> <p>The second clause of section 639 of the Revised Statutes is repealed by the act of March 3, 1875.</p>

The First Division of the St. Paul & Pacific Railroad Company, owning a line of railroad from St. Paul via St. Anthony to Watab, a distance of about 80 miles, known as its Branch Line, and a line of railroad from St. Anthony to Breckinridge, a distance of 207 miles, known as its Main Line, to each of which lines was attached a land grant consisting originally of 6 sections per mile, and subsequently increased to 10 sections, made the following trust mortgages: On the Branch…

In Equity. This is an action in equity, brought to reform a policy of insurance and renewal certificate, and to recover judgment for a loss sustained thereunder. The facts appear as follows: That on or about October 24,1878, complainant held a mortgage for $1,200 on a certain dwelling-house and store-room in the town of Kahoka, Clark county, Missouri, the legal title being in John Wagner.

Bill in equity, filed October 11, 1881, by Hannah H. Sampson, of Massachusetts, against Hepsia B. Mudge, of Ohio, and Chandler Sampson and Frank G. Sampson, of Florida. All the defendants' accepted service, and the two Sampsons took no further steps in the cause. Mrs. Mudge demurred.

When the plaintiff’s testimony was closed the defendant moved the court to instruct the jury to find a verdict for the defendant. After the argument and submission of this motion the court,—his honor, Judge Nelson, presiding,—in deciding the same, said

In this case I find the following facts: On the night of June 7,1879, a collision occurred in the Atlantic ocean, to the eastward of the Grand Banks, in about latitude 48 deg. 1 min. N. and longitude 88 deg. 9 min. W., between the libelant’s bark, the Collector, and the claimant’s steam-ship, the Oder.

<p>On Habeas Corpus,</p>

<p>1. Chinese Laborers—Immigration—Peohibition.</p> <p>The prohibition upon the master of a vessel, contained in the act of congress restraining the immigration of Chinese laborers, from bringing within the United Stales, from any foreign port or place, any Chinese laborer, was intended to prevent the importation of such laborers from the foreign port or place,—laborers who there embarked on the vessel,—and does not apply to bringing a Chinese laborer already on board his vessel when touching at a foreign port or place.</p> <p>Matter of Ah Sing, ante, 286, affirmed.</p> <p>2. Seamen—On American Vessel.</p> <p>While on board an American vessel a Chinese laborer is within the jurisdiction of the United States, and does not lose by his employment the right of residence here previously acquired under the treaty with China.</p> <p>Matter of Ah Sing, ante, 286, affirmed.</p> <p>8. Same—Not Changed by Temporary Absence.</p> <p>The status o E a person, employed on an American vessel is not changed by the fact that he is permitted by the captain to land for a few hours at a foreign port or place, and a Chinese laborer on an American vessel cannot be held to lose his residence here, so as to come within the purview of the prohibitory act of congress, by a temporary entry upon a foreign country.</p> <p>4. Statutory Construction.</p> <p>All laws should be so construed, if possible, as to avoid an unjust or an absurd conclusion.</p>

<p>1. Pleadings.</p> <p>Kew matter in an answer constituting a defensive allegation should be articled and pleaded separately, and not blended with the response to any article of the libel.</p> <p>2. Exceptions.</p> <p>Exceptions to an answer for insufficiency and impertinence are taken for entirely different causes, and therefore they ought not to be taken to the same matter, either conjunctively or disjunctively.</p> <p>3. Pilot Service—Place of Tender of.</p> <p>A state may permit or require its pilots to tender their services to inward-bound vessels at a greater distance from the shore than three miles, or the outward limit of the pilot ground.</p> <p>4. Same—Offer of, when Sufficient.</p> <p>The bark Whistler was approaching the mouth of the Columbia river with intent to enter and load there as soon as one of the three pilot tugs stationed there should come out to her without orders to go elsewhere, and being met hy one of said tugs, without such orders, she was taken in tow thereby, and went in ; but on the day before, and while she was standing off and on about 30 miles from the bar, she was hailed by an Oregon schooner pilot, who tendered his services to pilot her in, ■which were refused. Held, that the vessel was “ bound in the river,” within the meaning of the statute giving full pilotage for the offer and refusal of sneli services, and, having after-wards gone in, the libelant became entitled to such pilotage.</p>

<p>Seamen—Discount 01? Advance Sectjkity.</p> <p>Where defendant did not ship the seamen, nor employ the shipping agent to ship them, nor was he owner of the vessel, nor did he know of the giving of the agreements sued on, the fact that he was authorized to collect the inward freight, and procure outward freight, and pay the ship’s disbursements, upon the master’s certificate, does not make him an agent who “ authorized the giving of the advance security,” although he paid the shipping agent’s bill on which the advances were charged.</p>

Motion to remand. On the nineteenth day of December, 1881, said John Y. Farwell & Co., and other creditors, commenced actions against P. & N. Ohlquist by attachment in the district court of Linn county, Iowa.

<p>1. Bill to Enjoin Waste and Remove Cloud on Title—Title to be Shown.</p> <p>A complainant not in possession, who seeks by bill in equity to enjoin waste and remove a cloud upon his title to land, which at the time is in possession of an adverse claimant, must show a good title in himself or fail in his suit.</p> <p>2. Giiant—Peiobity.</p> <p>A grant of land by the state of Tennessee, on the eleventh November, 1841, on an entry made in 1840, is paramount to a grant issued in 1845, on an entry made in 1830.</p> <p>3. Same—In Whom Title Vests.</p> <p>A grant to John H. Jones & Co. vests the legal title in John EC. Jones, for himself and in trust for his partners, in proportion to their several interests.</p> <p>4. Statute of Limitations—Suspension by Wae.</p> <p>The existence of war suspends the statute of limitations as between citizens of the adverse, belligerent powers, but not as between citizens of the samo power.</p> <p>5. Same—Effect of Wab and Closing of Couets.</p> <p>A public war and the closing of the courts conjointly would suspend the statute of limitation. But if the means provided by law for the issuance and service of process exist, whereby injured parties can commence suit, the court is not “ closed,” although they are not regularly held at the times appointed by law, and the probabilities are that a suit then brought would not be tried until after the cessation of hostilities.</p> <p>6. Same—Judicial Knowledge.</p> <p>Courts may take judicial notice of the existence of a public war, when it commenced and when it terminated, and all of its historical incidents ; but the courts cannot take judicial cognizance of the fact that the courts of a particu- ' lar county were closed. If the fact exists, and is relied on by either party to a suit, it must be established by extraneous evidence, as other ordinary facts are required to be proven.</p> <p>7. Possession—Effect of.</p> <p>An actual, exclusive, continuous, and adverse possession of granted land in Tennessee for seven years, by a party claiming under a color of title, defining boundaries and purporting to convey a fee-simple estate, will vest the possessor with a good title in fee.</p> <p>8. Same—By Both Pabties.</p> <p>Where small quantities of a tract of land adversely claimed by the contending parties have been held by both of them during the same period, the owner of the superior title is, by construction of law, in possession of all the land embraced within his title not in the actual possession of the adverse claimant.</p> <p>9. Tiie Pacts of This Case.</p> <p>Complainant sues for 3,000 acres of unimproved mountain land. He had held two or three acres thereof by his tenant for more than seven years, claiming the whole under color of title, purporting to convey a fee. But during the same period the defendants, and those from whom they claim, who owned the superior title, had possession of about the same quantity of the land claimed by them both. Coihplainant contended that, notwithstanding the conceded fact that defendants had both the title and possession, defendants did not claim the land raider their better title; that they owned another adjoining tract wlikh they intended to hold, but. by mistake extended their possession over and upon a small part of the land in controversy; that their said possession was by mistake and' unintentional; wherefore complainant insisted that he had acquired by his adverse holding a good title tb all tlio lands in controversy not in the actual possession of defendants.</p> <p>Held, that possibly a case might arise in which the claimant under the junior title might thus acquire a good title as against the owner of the superior title, who held a contemporaneous possession, as well as the better title. Hut the court finds, in this case, defendants held under their superior title, cla lining the whole, and that their possession neutralized complainant’s possession as to all of said land, except such as complainant had in actual possession.-</p>

<p>1. Equity—Creditor’s Bilí,—To Beach Assets of Estate.</p> <p>The creditor oí' a deceased person may go into a court of equity for a discovery of assets and the payment of his debt, and he will not he turned hack to a court of law to establish the validity of his claim; and the court being in rightful possession of the cause for a discovery and account, will proceed to a final decree upon all the merits.</p> <p>2. Same—Muitifariousness.</p> <p>A hill which seeks to reach the property, and its rents and proceeds, acquired by one of the defendants through alleged conspiracy and the properly acquired by another defendant, also through an alleged conspiracy, is not multifarious.</p> <p>3. Same—Discovery of Ehaud a Question of Pact.</p> <p>The defense that the plaintiff discovered the fraud more than six years before bringing suit, must be raised by plea or answer, so that the issue on the discovery may be tried as a question of fact.</p>

Action upon a promissory note for $7,333, executed by defendant to one F. H. Winston, and by him transferred, after maturity, to the plaintiff. Besides a general denial the defendant answers as follows: “Por further answer to said petition, says that before and at the time of the making of the pretended note in said petition described, said plaintiff, this defendant, and P. H. Winston and George 0.

<p>1. Railroad Companies—As Carriers.</p> <p>A railroad company is not bound to undertake the carriage of goods beyond the terminus of its road; but if it does enter into a contract to do so, it is bound by it, and is under the same obligation to furnish means of conveyance beyond the line of its own road as it is upon it.</p> <p>2. Same—When may Refuse Freight—Duty of.</p> <p>A railroad company may rightfully decline to receive freight offered, when it has not the requisite rolling stock and equipments to carry it without delay; but if it receives goods for transportation, it cannot escape responsibility for delay by a previous accumulation of freight at its depots by acquainting the shipper, when he offers goods for carriage, with the facts, and affording him the option of acquiescing in the delay or seeking some other line of transportation.</p> <p>8. Same—Connecting Lines—Through Bills of Lading—Delay in Transportation.</p> <p>Through bills of lading impose on the railroad company, as carrier, the obligation to provide means of transportation for the goods shipped to their ultimate destination without delay, and it is no excuse for the non-performance of this duty that it could not procure transportation by boat by reason of a previous accumulation of freight, of which it was advised when it received the goods for transportation.</p> <p>i. Same—Measure of Damages—For Delay.</p> <p>The measure of damages for delay by a carrier in the transportion and delivery of goods at their point of destination, is the difference in the market value of the goods at such destination on the day they ought to have been delivered, and the market value on the day they were delivered.</p>

<p>1. Municipal Corporation—Division of Territory—Liability for Debts— Remedy.</p> <p>When an old corporation is dissolved, and a new one created, substantially embracing tbe same territory, the new municipality becomes liable, as successor, for the debts of the old, although the respective charters differ, and consequently an action at law will lie.</p> <p>2. Same—Power of Legislature—Apportionment of Liability.</p> <p>Cities, towns, and counties are mere political subdivisions of the state, and are at all times subject to legislative control, and may be divided, subdivided, or abolished. It is competent for the legislature, in making such subdivisions, to apportion the obligations of the divided territory, and in the absence of such legislative apportionment, the old municipality, if still existing, must bear the entire debt; but if a municipality has been abolished, and its territory divided among other municipalities, the creditor may pursue his demand against the latter for their equitable portions thereof.</p>

1. The eivil-rights act of March 1, 1875, does not confer jurisdiction upon the federal court in an action for damages for a breach of its provision. Such an action may be maintained in the state courts, and in federal courts, when jurisdiction maybe derived from the fact of a difference of citizenship. Culy v. Baltimore & Ohio R. Co. 1 Hughes, 536; Gray v. Cincinnati Southern Ry. Co. 11 Fed. Rep. 536. 2.

<p>Contract of Sale—Statute of Frauds—Delivery to Common Carrier.</p> <p>A delivery of goods by a vendor to a common carrier is a delivery to the vendee, though such carrier was not designated by him, and under the provision of the Iowa statute of frauds that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered, and no part of the price paid, such a delivery is sufficient to take the contract out of the statute. •</p>

<p>Patent eob Inventions—Reissues—Defects Cured.</p> <p>Where, upon inspection and comparison, the lack of definite specifications, which rendered prior reissues inoperative, has been cured by the present reissue, the reissue prima fade is good.</p>

<p>1. Removal of Cause.</p> <p>The aot of 1866, providing for the removal of a part of a cause into the federal court, and thereby splitting the action, was repealed hy section 2 of the act of March 3, 1875.</p> <p>2. Same—Under Aot ob1 March 3,1875.</p> <p>An action brought by a citizen of the state in which it is brought against citizens of the same state and citizens of another state, cannot be removed from the state court to the federal court by the non-resident defendants, unless tire whole suit is removed.</p> <p>3. Same—Severable and Inseverable Controversy. -</p> <p>Although an action brought hy the plaintiff against several defendants is for a tort, in respect to which plaintiff could sue one or all of the tort-feasors, yet if he elects to sue all, it will be deemed so far an inseverable controversy that a part only of the defendants cannot remove the cause into the federal court.</p>

<p>1. Jurisdiction—Foreign Corporation.</p> <p>When a foreign corporation avails itself of the privileges of doing business in a state whose laws authorized it to be sued there by service of process upon an agent, its assent to that mode of service is implied; and it consents to be amenable to suit by such mode of service as the laws of the state provide, when it invokes the comity of the state for the transaction of its affairs; and waives the right to object to the mode of service of process which the state laws authorize.</p> <p>2. Same—Service oe Process under Rev. St., § 739.</p> <p>Under the Revised Statutes, $ 739, a foreign corporation is “found” in the district where its agent is served when it docs business there, and the state laws authorize such a servive.</p>

<p>1. Equity—Money Paid by Mistake—Recovery Back.</p> <p>Wliere, by mistake, there is a payment of money, which there is no ground t > claim in equity or conscience, it is recoverable back.</p> <p>2. Same—Case Stated.</p> <p>Where a bank, on a certain date, was indebted to a depositor, who owed the bank on a note not yet due, and who purchased of the bank aud gave his cheek for a draft on a distant city, which was mailed to that city to pay an indebtedness to an insurance company, but the draft was dishonored, and notice given, the bank in the meantime having become bankrupt, and, upon consulting with a layman, he was advised that bankruptcy prevented an offset, and he paid the note t.o the assignee, held, that he was entitled to a return of the money so paid by him.</p>

<p>I. FoBECiiOstmn Sale—Rights ob L'ubohasebs bbom: Mobtgageob.</p> <p>A party owning land, subject to a mortgage, conveyed a block thereof to a purchaser, who gave the vendor his note for the purchase money, and executed a deed of trust to secure payment of the note, and afterwards, by warranty deed, the owner conveyed to the present plaintiff another block of said lands, the latter not knowing at the time of the existence of the mortgage. In satisfaction of the mortgage debt the decree in the foreclosure suit required the sale of "both blocks in the inverse order in which they had been sold, and the amount realized on the sale of the first parcels sold, not being sufficient to pay the mortgage debt, plaintiff was compelled to pay the difference in order to prevent the sale of his block; Reid, that plaintiff is entitled to be subrogated to the rights of the mortgagee to the extent of such payment, and to have the int< r >sls, of the owner as holder of the trust deed, and of the holders of the note for the unpaid purchase money,—transferred to them by the original owner with knowledge of the existence of the mortgage,—sold for the purpose of reimbursing paintiff in the sum paid by him, with interest.</p>

This cause is now before the court upon the complainant’s demurrer to the cross-bill of the respondent B. F. Elbert. The complainant obtained in this court a decree for the foreclosure of a mortgage against the mortgageor and all incumbrancers except said B. F. Elbert, who was named in the bill but not served with process. On the twe'nty-ninth day of. August, 1879, the master sold the mortgaged premises in pursuance of the decree.

<p>1. Eminent Domain.</p> <p>The right of eminent domain over the shores and the soil under the waters, resides in the state for all municipal purposes, and within the legitimate limitations of this right the power of the statq is absolute, and an appropriation of the shores and land is lawful.</p> <p>2. Same—Obstructing Navigable Waters.</p> <p>In the exercise of this right the state may directly or indirectly by delegation, authorize the construction of bridges, piers, wharves, or other obstructions in navigable waters, and such obstructions are not nuisances, because erected under lawful authority.</p> <p>3. Same.</p> <p>It is only when the exercise of this power of eminent domain comes in collision with the paramount authority of the United States that it is inhibited; and until congress has asserted its power to regulate commerce, and by legislation has assumed to restrict the jurisdiction of the state over its navigable waters, no conflict can arise, and the authority of the state is conclusive.</p>

<p>Discrimination in Railroad Freights—Damages, how Computed,</p> <p>Where at. a former term of the court it was decided that the receiver of a railroad company, hy the adoption of a contract with a third party and settlements with him thereunder, had discriminated against the plaintiffs in the rates charged them for transportation of wheat and grain over the railroad operated hy him contrary to the provisions of the state statute, and that plaintiffs were entitled by law to have their grain transported over said road at rates which would put them on an equal looting with said third party for like transportation, and it was referred to a special master to take an account of the amount of such unfavorable discrimination, and' to report the result of such examination, held, that the amount of tlio fund which, under the contract, could be used to pay such third party’s commissions, and all expenses incident to the business and the receiver’s freights, is the difference between the prime cost of the wheat shipped and the net proceeds of sales, deducting freights and charges incurred upon other roads and after the shipment left the receiver’s road; and that tho amount of discrimination is the difference between such amount, after deducting therefrom expenses, compensations, rent of warehouses, im crest exchange, insurance, and tho outlay at way stations made by tho receiver to secure the trade, and the amount of the freight charged to such third party according to tariff rates; and that a decree be entered accordingly.</p>

<p>1. Municipal Bonds—Negotiability of.</p> <p>Municipal bonds, payable to bearer, are deemed payable to the holder, and the holder is not regarded as the assignee oi the contract, but the holder through transfer by delivery.</p> <p>2. Jurisdiction of Circuit Court—Act of 1875.</p> <p>A citizen of another state may sue a municipal corporation, located in the state where suit is brought, upon bonds issued by such corporation, and his right of action does not depend upon the rights of former owners of the bonds to sue thereon under the inhibition in section 1 of the act of .March 3, 1875, defining the jurisdiction of the circuit court, as he does not derive his title by assignment.</p>

At Law. This is an action at law upon a penal bond in the sum of $12,000 executed by said defendant McCoy as principal, and the other defendants as sureties, to George Bebbington, Robert Percival, J. P. Williams, J. E. Rudd, and Marshall Key.

<p>1. Sending Forbidden Matter Through the Mail—Pleading.</p> <p>In an action for damages for the wrongful detention and conversion of certain letters of the plaintiffs, detained by the postmaster under a regulation of the post-office department requiring him, when he has reason to believe that a fictitious address is used for forbidden circulation in the mails, to report the fact and the reason of his belief, await instructions, and give notice that, pending such instructions, persons claiming the correspondence must call at the general delivery and establish their identity before its delivery—where the meaning or application of the allegations in the answer is not doubtful, the plaintiffs’ remedy is to be sought by a bill of particulars, and not by requiring the pleading to be made definite and certain.</p> <p>2. Same—Bill oe Particulars—Practice.</p> <p>Where the circumstances are such as can only influence the postmaster’s own judgment, it is not to be assumed that the plaintiffs can definitely know what they are, and they are entitled to information to meet the issue tendered by the defendant by a bill of particulars setting forth the facts and circumstances which induced defendant to believe that the address was being used by some person or persons for covering forbidden correspondence in the mail under such fictitious address.</p>

<p>Patents eon Inventions—Pkeliminarv Injunction.</p> <p>Where there was a delay of 10 years between the original patent and the reissue; a controversy as to the validity of the reissue and as to the infringement ; no decision of any court establishing the validity of the patent; no royalty or license fees paid to the patentee; no general use or public recognition; no present manufacturing or sale of the patented article; and no allegation of irresponsibility on the part of the defendants,—a preliminary injunction will be refused.</p>

This action at law, for damages for the infringement of two patents, was brought November 21, 1877, and was now submitted to the court upon agreed facts. The defendants were the American Nickel Plating Works, a corporation duly organized under the general laws of Massachusetts, three directors and one stockholder of the company, and one workman.

<p>Libel by the owner of the barge Halsey against the schooner John W. Hall, to recover damages for the crushing of the barge. The facts were as follows:</p> <p>On June 26, 1878, the Halsey was lying at Pier 1, Port Richmond, loading. On the opposite side of the dock, at Pier 2, was the schooner Mellon. The John W. Hall, having been ordered to Pier 1, attempted to enter the dock, but grounded and lay across the entrance. Late in the afternoon the Halsey finished loading, and about 9:30 in the evening, the tide having risen sufficiently to float the Hall, the latter hauled in between the Halsey and the Mellon. When the tide fell there was not enough space in the dock for the three vessels to lie abreast, and the Halsey was crushed. On the part of libelant it was claimed that after the Hall had entered the dock the Halsey had not room to move out, and that, even if she could have moved, there was not sufficient length of pier to have enabled her to lie astern of the Hall. On the part of the respondent it was claimed that, by the rules of the port, the Halsey being loaded was bound to drop astern of the Hall; that there was enough space between the vessels at high water and sufficient length of pier to have enabled her to do so; that she was ordered to do so by the dock superintendent, and that her captain promised to do so at the time the Hall entered.</p>

label by the owners of the schooner William Marshall against the schooner Bessie Morris to recover damages for inj uries caused by a collision. The facts were as follows: About noon on August 6,1881, the Marshall, bound to Boston with a cargo of coal, was beating down the Delaware river, and when on a port tack about mid-channel collided with the Morris, which was sailing up the river light, with the wind free and directly astern.

On Motion to Remand. This case was originally begun in the circuit court for the county of Saginaw, upon an account against the defendants, citizens of Michigan, in favor of Joseph P. Whittemore, also a citizen of Michigan, and by him assigned to the plaintiff, a citizen of New York.

<p>1. Jurisdiction—Subject-Matter.</p> <p>The subject-matter of contracts made in relation to patents, where neither the validity of the patent nor its infringement are concerned in the controversy, does not give the courts of the United States jurisdiction. The rights of the patentee under the patent laws of the United States must be directly and not collaterally brought in issue to give jurisdiction.</p> <p>2. Remanding Cause—Remand Sua Sponte.</p> <p>Where, after the removal of a cause wherein the requisite citizenship and the amount in controversy do not exist, and it is found by the pleadings that the subject-matter is one in which a statute of the United States is only incidentally brought in question, the court will of its own motion remand the cause.</p>

<p>1. Equity—Suit on Beiiale oe Creditors and Stockholders.</p> <p>Creditors and stockholders of an insolvent non-resident corporation ma,y unite in a suit in behalf of themselves and other creditors and stockholders, to enforce the liability of holders of unpaid shares of the capital stock of such corporation without making- the non-resident corporation a party.</p> <p>2. Same—Auxiliary Jurisdiction.</p> <p>Where stockholders are indebted to the corporation on stock subscriptions, the sum due may be reached by a creditor’s bill; and where, by any dealings between the corporation and its stockholders the capital stock which is a fund for the payment of its debts is wrongfully diverted, a creditor can reach it. The court of equity assists him, not In the exorcise of its jurisdiction over trusts, but in the exercise of its auxiliary jurisdiction in behalf of creditors.</p> <p>3. Same—Creditor’s Bill.</p> <p>it is only when the remedy at law has been exhausted that a creditor acquires the right to follow the property of a debtor in the hands of his trustee, and a relaxation of the strict rule requiring a creditor to exhaust his legal remedy before resorting to a creditor’s bill will not be justified by the fact of the insolvency of the debtor, or that the debtor has no leviable property.</p> <p>4. Same—Creditors at Large.</p> <p>Where some of the creditors only had recovered judgments in the state courts whore such non-resident corporation existed, and had issued execution thereon which were returned unsatisfied, the suit will bo treated as a creditor’s bill, and the complainants as creditors at large.</p> <p>5. Force and Operation oe Foreign Judgments.</p> <p>Judgments obtained in another slate are in this state only contract debts, and do not authorize the exercise of auxiliary jurisdiction. They do not have the force and operation of domestic judgments, except for purposes of evidence.</p>

<p>Equity—Jurisdiction—Title to Property.</p> <p>Complainants, as lieirs of Clarissa Howd, deceased, filed an amended bill, , alleging that said Clarissa and her deceased husband, before tbeir marriage, agreed that each “ should have nothing to do with the other’s property; that his should go to his children, and hers to her heirs and relatives ; ” that upon the death of said Clarissa her husband had asserted his exclusive ownership to all of her property, and devised the same to his two children, against whom and the executor this bill is filed. Held, upon a consideration of the facts, that there was nothing in this case to give an equity court jurisdiction ; that the only effect of such an agreement would be to estop the devisees and executor of the deceased husband from asserting title to the property; that the parties must proceed at law; and, the real estate having been converted into personal, the administrator of said Clarissa was the proper party to sue at law, and that the legal representatives of said Clarissa could only acquire title through administration on her estate.</p>

This is a suit in equity for relief against an action at law, commenced by the defendants against the complainants, for the possession of certain lands in the city of Oakland, in this state.

<p>1. Priority of Lien</p> <p>The legal title to certain bonds being in C. & Son, bankers of New Orleans, with nothing to indicate the equitable interest of complainants therein, O. Sc Son, deposited said bonds with S. & Sons, bankers of New York, their correspondents and financial agents in that city, and afterwards 0., who was also president of the New Orleans Banking Association, hypothecated a portion of said bonds to S. Sc Sons in behalf of the banking association to protect S. & Sons against, any overdrafts to the extent of §100,000, that might from time to time arise in their dealings with said association. Subsequently O. & Son, the New Orleans NationalBanking Association, and S. & Sons, failed, and made assignments to trustees in bankruptcy. Held, that the trustee in bankruptcy of S. & Sons had a lien on said bonds to the extent of §100,000 for the unpaid balance due them from the New Orleans Banking Association, and also a bankers’ Inn on those not so pledged for the amount of the balance of account due them from O. Sc Son, and that such lions were first to be satisfied out of the interest of O. & Son in the bonds as between that firm and the complainants.</p> <p>2. Equitable Interest—Attachment.</p> <p>Complainants being the equitable owners of a moiety of the bonds in suit, subject, however, to the lien of O. & Son, for any balance existing in their favor in the account relating to the joint purchase of the bonds with the complainants, the trustee could acquire a valid lien hy virtue of an attachment upon the interest of complainants for the sum which may ultimately be recovered in his suit against complainants.</p> <p>3. Practice—Accounting by Trustee.</p> <p>In such a case the trustee must account for the amount of all coupons collected.</p> <p>4. Same.—Reference to Master—Receiver—Costs.</p> <p>Where the extent of respective interests of the parties can he arrived at without a reference to the master, such reference may be dispensed with upon counsel filing a stipulation to that effect. Under the circumstances the decree will provide for appointment of a receiver to sell the bonds, and to distribute the proceeds to the parties according to their respective rights. Costs will be allowed to the trustee.</p>

<p>1. Constitutional Law—Title of Act.</p> <p>Under the settled construction of section 3, art. 3 of the constitution of Pennsylvania, where an act of assembly is entitled, a supplement to a former named aot, and the subject thereof is germane to that of the original act, its subject is sufficiently expressed.</p> <p>2. Same—Revision and Amendment of Statute.</p> <p>The constitutional provision : “ No law shall be revived, amended, or the</p> <p>provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length,” is sufficiently complied with if a supplement and amendatory act is set forth and published at length in its amended form.</p> <p>3. Taxation—National Banks—Real Estate Taxable.</p> <p>Under the Pennsylvania act of June 10,1881, entitled “ a supplement to an act entitled ‘An act to provide revenue by taxation,’ approved tho seventh day of June, 1879,” the real estate of a national bank is subject to taxation distinct from its other capital.</p> <p><t. Same—License Tax on Bank.</p> <p>A license tax imposed by city ordinance upon a national bank being a tax upon the operations of the bank, and a direct obstruction to the exorcise of its corporate powers is unconstitutional; but the ordinance not undertaking to make tho tax a lien, and giving an action of debt only for its collection, the bank is not entitled to equitable relief by injunction.</p>

In Bankruptcy. Sur issue, certified by register into court for determination, upon application to ro-examine claim proved by 1). W. C. Bidwell.

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

Bill in Equity for an injunction against the infringement of certain patents. The facts are sufficiently stated in the opinion.

<p>Patents for Inventions—Formal Variation—Infringement.</p> <p>Where the mechanism used by defendant’s shutter hinge is a mere formal variation from that of plaintiffs’ invention, having the same mode of operation, it is an infringement of the patent.</p>

<p>Patent—Validity oe Reissue.</p> <p>In the descriptive matter in the specification in the original patent for an improvement in making wheels, granted January 23, 1866, it was said that “ the type wheel is provided with yielding rims or flanges, made of India rubber or other elastic material, so that the types can be depressed on t-hd surface to be marked with the requisite force to produce the desired impression. * * * This type wheel * * * is provided with projecting flanges, 5, made of-India rubber or other soft and elastic material, so that by pressing the wheel down upon the surface to be marked the types are brought into contact with said surface with the requisite force to produce the desired impression;” and.claim No. 2 was as follows: “(2) The yielding flanges, b, on type wheel, A, constructing and operating substantially as and for the purpose described.” October 26,1875, a reissue was granted, and in the specification the descriptive matter was altered to the following: “ The type wheel is provided with rims or flanges, preferably made of India rubber or other elastic material, so that the types can be depressed on the subject to be marked with the requisite force to produce .the desired impression. The rims or flanges seem to keep the surface of the type in a plane parallel with the surface to be marked, which is otherwise often difficult, owing to the different lengths of lines of type, or the position of the type at the side of the surface of the type wheel. * # # This type wheel * * * is provided with projecting flanges, b.” The claims of the reissue were these: ‘‘(2) The combination with a handle of a type wheel provided with flanges for keeping the plane of the type paralled with the surface of the article to be marked; (3) a type wheel provided with yielding flanges, constructed and operating substantially as and for the purpose described.” The wheels used by the defendants would not have infringed claim 2 or 3 of the original patent, but would infringe claim No. 2 of the reissue, because they have a handle and rigid flanges which keep the plane of the type parallel with the surface of the article to be marked. Held, that if there was any error in the original patent in not setting forth and claiming rigid flanges, or in stating that the flanges were to be elastic, and were to be so arranged that the types were to be out of contact with the surface to be marked until by the yielding of the flanges through pressing down the wheel the types were to be brought in contact with such surface, the error was a plain one, apparent at once to the patentee, and as capable of being promptly corrected then as by a reissue after a lapse of more than nine years, during which the manufacture of wheels substantially the same as those of the defendants had been entered upon, there being no infringement of any claim of the original patent in respect to flanges, and that claim No. 2 of the reissue could not be upheld as covering any flanges but such as were shown in the original patent, consequently the bill must be dismissed, with costs.</p>

<p>1. Patent—Infringement.</p> <p>Plaintiff’s claim No. 1 in a patent was for an elastic bucket working by suction in tlie bore of a cliain pump, and having a drip orifice, allowing tlie the water above the bucket to escape down to the source of supply ; and his claim No. 2 was for a solid elastic bucket with an elastic bearing edge, and a convex or contracted upper portion, so that the bucket would readily yield and go up, but resist going down. Held, that these claims were infringed by the Stowe and Kumsey buckets, used by defendants, as tliej* were both of them solid elastic buckets, having an elastic bearing edge, with the upper portion convex or contracted from said edge so that the bucket readily yields to any irregularities in the pump tube, and is easily drawn up, while it will resist moving downward; and such bucket is adapted to fit and work in the bore of a pump tube to raise water by suction, and is provided with a suitable orifice or outlet, through which the water above the bucket could escape.</p> <p>% Same—Previous Existence oe Features Claimf.d.</p> <p>Where certain features have existed before their adoption by an inventor he can only claim modifications of the form embodying such features, and if other inventions differ in form there will bo no infringement,</p> <p>3. Patents No. 83,117 and No. 58,368 compared with that of plaintiff, and shown not to have anticipated the features of his invention.</p>

<p>1. Patent—Infringement—Master’s Report—Profits.</p> <p>In this case the defendants used the combination that gave a peculiar value to the patent faucet of the plaintiffs, and they were chargeable with damages in respect to the entire faucet, and the master’s report so charging them should be confirmed.</p> <p>2. Same—Measure of Damages.</p> <p>The measure of damages for infringement of a patent is the profits that the plaintiffs would have made on the sales of the patented article had they supplied the customers to whom the defendants sold such article.</p> <p>3. Same—Estimation of Profits.</p> <p>In estimating the amount of such profits the cost of manufacture and sale should be deducted, and on sales of a large amount, clerk’s hire, storage, freight, etc., should be considered as part of such cost; but in this case, as these expenses would make only a trifling difference in amount awarded by master, a reaccounting will not be ordered.</p> <p>4. Same—Treble Damages.</p> <p>In this case, motion of plaintiffs for treble damages should be denied.</p>

<p>1. Patents for Inventions—Suit against Individual Defendants.</p> <p>The bill in this case was filed, against defendants individually, alleging that they were members of a copartnership in which the extent of the interest of each member was measured by the number of shares he held in the copartnership as a joint-stock association. Held, that the unauthorized use of a patent by the agents of such association, in its business, for the benefit of its stockholders, must be considered as a use by each of them, from which each of them might be enjoined in a suit of this form, notwithstanding the fact that under the laws of Kew York, there being more than seven shareholders, the association could have been sued as a whole by suing the president, without making all the shareholders parties, and that a decree for injunction and accounting, with costs,'should be passed.</p> <p>2. Practice—Costs of Dismissal.</p> <p>As the evidence does not show that K. was a shareholder, although secretary, of the association, the bill must be dismissed as to him; but, as he answered jointly with D., without costs.</p> <p>It Same—Amendment as to Parties.</p> <p>Plaintiff cannot amend his bill by alleging that defendants were severalty president, secretary, and directors of the association, as this is unnecessary in a suit against them individually, and would be improper if intended to make the suit one against the association as a whole.</p>

<p>Patent foe Invention—Device.</p> <p>A device consisting of old elements combined, and practically superseding all other known means of pitching kegs and other small receptacles, is not a mere mechanical equivalent of any other device.</p>

In Equity. Motion to remand. This is an attachment and injunction bill filed in the chancery court of Hardin county by citizens of… Held: etc., copies of all process, pleadings, depositions, testimony, and all other proceedings in this cause affecting or concerning said suit, then this obligation to be void.” The transcript being filed, the plaintiffs move to remand the cause for want of jurisdiction, and the petitioner asks leave to amend the bond, or to substitute a…

In Equity. •This, is a bill by policy-holders residing in Tennessee, claiming a return of premiums for policies not matured by death or otherwise, filed in the state court under the provisions of the Code of that state, to attach the assets, consisting of debts due to an insolvent life insurance company of Missouri, and to wind it up and distribute the assets in Tennessee according to the laws of that state. ' Attachment and injunction .issued, and the cause was removed to…

<p>1. Equity—Trust—Money Followed into Land.</p> <p>Where land is purchased with money advanced by a bank on the faith of an agreement between a board of commissioners and one of the defendants, and in pursuance of such agreement-and-subject to the .condition's thereof the land is conveyed to a trustee, and said board have, refunded the. rponey so advanced, , such agreement never having been actually consummated, the money cán be followed into the land; but if the conveyance of the land would work' ah in m-y to the defendant, with whom the agreement was made, he should be allowed to refund the money, with interest, and all the parties be placed in statu quo as nearly as possible.</p> <p>2. Practice—Equity—Variance—Amendment.</p> <p>Where the facts proved as entitling a party to relief do not correspond with the allegations of the bill, no relief can be granted unless the bill is properly remodeled.</p>

<p>Injunction—Dissolution—Indemnification—Practice.</p> <p>Where aa injunction has been dissolved, the better practice is for the court which issued the injunction to assess the damages caused by its issuance, and not compel the party injured to resort to an independent action at law to procure indemnification, if he can thus be indemnified.</p>

<p>For report of opinion on the demurrer to the bill in this case, see 10 Fed. Eep. 596.</p>

In Equity. The plaintiff, Harrison, is the holder of 20 bonds of the Arkansas Valley Bailway Company, guarantied by the Kansas Pacific Bail-way Company, on which he brought his action at law in this court to recover judgment against the Union Pacific Bailway Company, alleging that the latter company is responsible upon said bonds as successor in liability under a contract of consolidation between said two last-named companies, and certain statutory provisions concerning the…

Demurrer to Eeplication. This is a suit upon a policy of insurance upon the life of 0. S. Alford, deceased, by bis executor, Thomas C. Fletcher.

<p>Petition for a Writ of Habeas Corpus.</p>

<p>1. Criminal Procedure—Error—Stay of Proceedings.</p> <p>On an application to the circuit court for a writ of error to the district court, in a criminal case, if the error complained of is a matter about which there may be a serious question, it is the duty of the court or of the judge, not only to grant the writ of error, but to allow a stay of proceedings, to enable the defendant to take the deliberate judgment of the appellate court upon the question involved in the case.</p> <p>2. Writ of Error—When Granted.</p> <p>Where there is a question about which there is a doubt, as whether the defendant is charged in the indictment with a felony or a misdemeanor, and whether it was error to receive the verdict of the jury during the absence from ■ the court of defendant and his counsel, and as to which question defendant has a right to take the opinion of the appellate court, a writ of error and a stay of proceedings should be granted.</p>

<p>1. Sale op Beal Property by Broker.</p> <p>A. contract to sell real property for a commission is performed when the broker procures a person who is able to pay for the same to enter into a valid contract to purchase upon the terms proposed, or when he induces such person to otter to pay for the property, and take a conveyance thereof, upon being allowed a reasonable time to examine the title thereto, which offer is refused by the owner, on the ground that the time allowed the broker within which to effect the sale is about to expire.</p> <p>2. Territory, not a State.</p> <p>The ruling in Sew Orleans v. Winter, 1 Wheat. 91, that a territory is not “ a state,” within the meaning of that term as used in the constitution in making the grant of judicial power to the United States, and that, therefore, a resident of the former cannot sue in the national courts as a citizen of a state, followed, but questioned.</p>

Demurrer to Answer. Suit for damages for the conversion by defendant of silver ore owned by plaintiff.

<p>1. Referee’s Fending of Fact.</p> <p>Upon a consideration of the evidence, held, that the finding of the referee that no partnership existed in this ease would not be reversed.</p> <p>2. Partnership—Bankruptcy—Remedy in State Courts.</p> <p>Even if by failing publicly to disclaim the printed statement that they were directors, and by allowing their neighbors to believe that they were in some manner interested in a bank, parties are estopped from denying their liability to those who trusted such bank, relying upon their supposed connection with it, an appeal to a court of bankruptcy is not proper; as to declare such parties bankrupt would render them liable not only to those actually deceived, but to all who had claims against such bank, whether they were deceived or not, and those who were actually deceived have a perfect remedy in the state court.</p>

<p>1. Patents for Invent tons—Foreign Patent Previously Granted-Rev. St. s -1¡>87.</p> <p>Section 4887 of tlie Revised Statutes expressly requires the commissioner of patents, whore a foreign patent has been issued for the same subject-matters, to limit the term of the domestic patent to the period of time that the foreign patent has to run; or if there be more than one. then to make it expire at the same time with the one having the shortest term; and the priority of such patent is to he determined, not by tho dates of the applications’ for the foreign and domestic; patents, but by the dates on which the letters patent were granted.</p> <p>2. Same—Canadian Patent Act.</p> <p>Under sections 16 and 18 of tho Canadian patent act, a patent takes eifeet not from its delivery to the patentee, hut when it is signed, sealed, and registered.</p> <p>3. Same—Extension oe Foreign Patent.</p> <p>An extension of the term of a foreign patent will not, operate to extend the term of the domestic patent; such patent expires when the original foreign patent expires.</p> <p>4. Same—Validity of Domestic Patent.</p> <p>Whether tho United States patent is void ah initio in this case, because the term was 'not limited on its face to expire with that of the foreign patent, not decided.</p>

<p>1. Removal of Cause—Prejudice and Local Influence—Time of Application.</p> <p>An application for tlie removal of a cause under the act of 1867, (Rev. St. § 639, sulxl. 3.) made after appeal to the state supreme court, where 1lie decree of the lower court is affirmed, and the cause remanded with instructions to enter a final decree, of conformity with the judgment of the supreme court, is too late.</p> <p>2. Same—Who may Remove—Citizenship.</p> <p>A citizen of an Indian territory, not being a citizen of a state, eannol remove a cause into the circuit court from a stale court under the act of 1867, (Rev. St. § 639, subd. 3.)</p>

<p>1. Practice—Removal op Cause—Waiver.</p> <p>A party loses his right to object to the removal of an action from a state court, when it has been removed on the ground of the diverse citizenship of the parties, by going to trial and trying the cause without raising the objection.</p> <p>2. Same—'Seotioít 5 op Act op Congress, March 3, 1875.</p> <p>Although section 5 of the act of congress of March 3, 1875, regulating the removal of causes, among other things directs the remanding of a cause if it shall he made to appear at any lime that it does not really and substantially involve a controversy within the jurisdiction of the circuit court, it does not apply to such a case, and was intended evidently to apply only to causes which have been collusively removed.</p>

<p>1. Equity Jurisdiction—Cloud on Title—Remedy at Law—Rev. St. § 723.</p> <p>On October 7, 1870, complainants obtained an interlocutory decree against tlie Windsor Manufacturing Company and one Lamson, awarding them damages for infringement of a patent, and referring the cause to a master to report an account of profits, etc. On October 11, 1870, the court, on proper petition and affidavits, ordered a writ of sequestration to issue against the “ goods, chattels, and estate ” of the defendants, to abide and respond to the final decree in the case. On October 13, 1870, the marshal attached, as the property of the Windsor Manufacturing Company, the real estate now in controversy, lodged a true copy of the writ, with description of real estate attached, in the town clerk’s office of the town where the property was located, made proper return to the court, and on October 20, 1870, delivered to the clerk of the Windsor Manufacturing Company a truc and attested copy of the writ, description of real estate, return, etc., and made proper return to court of such service. On February 27, 1872, the Windsor Manufacturing Company conveyed this real estate to Jones, Samson & Co. for $23,000, and covenanted that the premises were free from incumbrances, excepta $10,000 mortgage and two attachments,— the attachment here shown in favor of complainants and a subsequent attachment issued from court of chancery of the state of Vermont,—and further covenanted to warrant the title against all incumbrances save the mortgage mentioned, which grantees were to pay oft'. The consideration consisted of this $10,000 mortgage and a mortgage executed by grantees to secure $13,000, as in five separate credit payments. Afterwards Jones, Samson & Co. conveyed portions of the real estate to defendants George, Chase, and Ray. On April 6,1880, the master having filed his report, a decree was entered for $23,232.75 as profits to be paid complainants by defendant the Windsor Manufacturing Company; a special execution to issue if not paid in 10 days. On June 1, 1880, execution issued. Payment was demanded by the marshal on Juno 3,1880, and, payment n ot being made, on July 30, 1880, the execution was levied and extended on the real estate previously sequestered as the estate of the Windsor Manufacturing Company. The property was duly appraised and set out in satisfaction of the said execution and the proper return and record, were duly made. The six months allowed by law for redemption having expired, complainants claim the right to enter and possess said premises, but defendants hold possession and dispute the title of complainants. Complainants file their bill in equity to set aside and annul the deeds to defendants and perfect their own title, and pray that they may be let into possession of the land, and that defendants pay damages for their wrongful withholding of possession. Held, that equity will not allow a title to real estate, otherwise clear, to he clouded by a claim which cannot be enforced either at law or in equity, and consequently will interfere in behalf of the holder of the legal title to remove a cloud on the same, or an impediment or difficulty in the way of an effectual assertion of his rights in a court of law; but where in an action of ejectment possession of the land and damages for wrongful withholding of possession can be recovered under section 723 of the Revised Statutes, the suit in equity cannot extend to such relief, and the decree in this case must be confined to perfecting the title of complainants to the land in controversy.</p> <p>2. Practice in Circuit Courts—Rules—Process—Rev. St. §§ 913, 918.</p> <p>The forms of mesne process in equity, and the forms and modes of proceeding therein, are to be according' to the usages of courts of equity, except as otherwise provided by statute, or by rules of court made in pursuance of statute. But any circuit court may alter and add to such forms and modes, subject to the right of the supreme court to regulate the matter for such circuit court. The supreme court has the power to prescribe the forms of writs and process, and to regulate the whole practice in suits in equity in the circuit courts; b'ut any circuit court may, in any manner not inconsistent with any law of the United States or any rule prescribed by the supreme court, regulate its own practice to advance justice.</p> <p>3. Same—Same—Rule 11—Writ of Sequestration. '</p> <p>Rule 11 of this court, .providing- that “ the creation, continuance, and termination of liens and rights created by attachment of property, or the arrest of a defendant, shall be governed b3r the laws of this state,” is a valid rule, and as the writ of sequestration as a mesne process in an equity suit has always existed in the state of Vermont, such rule authorized the issuing of the writ in this case.</p> <p>4. Same—Same—Service of Writ.</p> <p>As the writ of sequestration is an attachment to create a lien, rule 11, in adopting the state law as to the creation of the lien, adopts the state law as to the mode of service; and as the acts of the marshal in this case were in accordance with the requirements of the laws of Vermont, the complainants obtained a valid lien.</p> <p>5. Nature of Writ of Sequestration.</p> <p>The writ of sequestration in Vermont is not the writ known to the English chancery, but is a mesne security, given pendente lite, operating in that regard, and to that end, like a provisional injunction, or a tempoi-ary receivership, or a writ of ne exeat, or the filing of a Us pendens.</p> <p>3Tor final decree see post, 869.</p>

<p>In Equity. Hearing on pleadings and proofs.</p>

<p>Habeas Corpus. The facts sufficiently appear in the opinion of the court.</p>

<p>1. Leuaoy Duty—Act of Oonbress Construed.</p> <p>Under the provisions oí sections 124 and 125 of the act of congress passed June 30, 1864, c. 255, the legacy duty imposed thereby is made payable on Iho estates of those persons only whoso domicile at the time of their death is in the United Stales.</p> <p>2. Distribution of Estate—Laws of Domicile to Govern.</p> <p>The act of congress does not make the duty payable when “ the person possessed of such property ” dies testate, if it would not be pa.yablc if such person died intestat e; and if a woman dies' intestate her heir takes a distributive share by the intestate laws of the place of domicile of his mother at the time of her death.</p>

<p>Bankruptcy—Partnership—Guaranty by One Partner oe Firm Obligation.</p> <p>Where, after the failure of a firm, and while they are endeavoring to settle with their creditors, one partner, at the request of a holder of a firm obligation, guaranties its payment, such guaranty is without legal effect and does not entitle the holder to prove against the separate estate of the guarantor upon a subsequent adjudication of bankruptcy.</p>

Exception to report of register allowing a claim of the city of Allentown against the separate estates of Jesse M. Line and William Kern, members of the firm of William H. Blumer & Co., bankrupts.

<p>Bill of Review.</p>

Criminal Informations. Two informations were filed against this defendant by the district attorney after a preliminary examination before one of the commissioners of this court.

<p>Railroads—Rev. St. § 4386.—Unloading ShebA Etc.</p> <p>Section 4386 of the Revised Statutes of the United States, imposing a penalty upon railroads carrying sheep, swine, etc., if they allow such _ sheep, "' swine, etc., to'be more than 28 consecutive hours confined without unloading them for at least:five hours for rest, water, and feeding, does not apply to a ' railroad carrying sheep, swine, etc., from a point ‘within a state to another point therein, but only to such as convey swine, sheep, etc., from one state to another.</p>

<p>Suit upon coupons of Clark county bonds.</p>

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

Suit.for Bent. Motion for new trial. The petition in this case sets out in form three distinct causes of action, viz., the balance of rent due for each of three successive years under a lease from year to year. The answer sets up a counter-claim for work done upon the leased property during the period of the tenancy by the lessee, at the lessor’s request. The case was tried before a jury.

In Equity. Appeal from the United States district court, sitting as a court in bankruptcy. For statement of facts and report of the opinion of the district court see 12 Fed. Rep. 428.

The plaintiff in this ease is the assignee in bankruptcy of the firm of Parsons, Berry & Warren, of which the defendant William A.~, Berry was a member. The object of the hill is to assert the claim of a creditor of the said firm, D. W. Grimes, against the homestead of said Berry.

<p>Patent No. 76,394-Display Dummy.</p> <p>A patent for a dummy to display clothing in form, substantially like the wire dummies in previous use, but made of papier mache, a material that had been previously used to make lay figures, representing various personages, many of whom were draped in suitable clothing, cannot be considered as valid because the device is destitute of patentable novelty.</p>

<p>Patents for Inventions—Validity.</p> <p>The validity of letters patent !Sro. 42580, for a new and improved mode of pitching barrels, sustained on the authority of Gottfrieds. Crescent Brewing Co. urue, 479.</p>

<p>1. Admiralty—Collision—Sail and Steam-Vessels.</p> <p>While it is the duty of a steam-vessel to avoid a sailing vessel, it is no less the duty of the latter to afford the steamer all the means and signals the law, custom, and common prudence prescribe to enable her to make this avoidance; and if in any respect she fails therein and thereby produces the disaster, she must either bear the whole loss, or her share thereof, as her fault was the sole or partial cause of the collision.</p> <p>2. Same—Same—Loss.</p> <p>The evidence in this case showing that no fault was to he imputed to the brig in regard to her lights, or in not changing her course when approaching the steamer, but that the steamer was in fault (1) because she had not proper and sufficient lookouts; (2) because her officers and men were careless, ignorant, and incompetent; and (3) because when the collision was imminent her speed was not slackened or arrested, or the engine reversed in time to avoid collision,— the entire loss resulting therefrom must be borne by the steamer.</p> <p>3. Same—Loss oe Frei&ht—Apportionment.</p> <p>In cases of total loss before freight is fully earned by delivery, the owners of the vessel, if not in fault, are entitled to the agreed freight, less costs, charges, and expenses of the remainder of the voyage, from which the accident discharges them.</p>

<p>1. Admiralty—Collision—Steam and Sailing Vessel.</p> <p>When a sail-vessel and a steam-vessel are moving in directions which may involve risk of collision, the latter must keep out of the way of the former. It is the right and duty of the sailing vessel to keep her course, except under “special circumstances” rendering a departure from it necessary to avoid immediate danger.</p> <p>2. Same—Rev. St. § 4234—Torch.</p> <p>Section 4234, Rev. St., which provides that “ every sail-vessel shall, on the approach of any steam-vessel during the night-time, showa lighted torch,” etc., is as applicable to navigation on the sea as to inland navigation.</p> <p>3. Same—Evidence to Sustain Decree.</p> <p>• The evidence in this case showing that no- fault was to he imputed to the brig, but that the steamer was in fault, the decree of the district court should be affirmed.</p>

<p>Admiralty—Services of Cooper—Performance on Request.</p> <p>"Where a vessel laden with sugar was discharged at quarantine in Yew York harbor, the master being sick and the mate temporarily in charge, anda master cooper thereafter libeled the vessel for services said to have been performed by one of his men in coopering casks on board, and the claimants of the vessel, in defense, undertook to show that the cooper was accidentally there, and was not employed by any one on behalf of the ship, held, that the facts proved—the presence of the cooper; that casks were necessarily coopered; that the mate who had charge brought, the cooper there; and that a bill rendered for the work was not objected to by the mate, save one item, which was corrected,—were sufficient to warrant the conclusion that the mate directed the work to be done on behalf of the vessel with apparent authority, and that the cooper performed it at his request.</p>

<p>1. Removal of Cause—Suit Pending—Application Too Late.</p> <p>In a suit pending at the time oí tlio passage of (lie act of March 3, 1S75, and thereafter tried in the state court, wherein judgment was rendered and the cause carried to the supreme court of the state, the application for removal by new parties defendant comes too late, unless the making of the new parties was in effect the institution of a new suit.</p> <p>2. Same—Trustees of Defunct Railroad as Parties—Texas Code.</p> <p>Under the provisions of the Revised Code of Texas, if a party holding a deed in trust of a railroad company sells out the road-bed, track, franchise, and chartered powers and privileges of such company, a suit pending against such company does not thereby abate, and subsequently making the directors of such defunct company parties to such suit is merely a continuance of the original suit, and the application of such directors to remove the cause into the circuit court, made after two trials and judgments, and two appeals, comes too late.</p>

<p>1. Arbitration Bond—Liability of Surety.</p> <p>Upon a consideration of the facts of this case, and an examination of a bond given by defendants in an arbitration proceeding, it appeared that the questions considered and passed upon by the arbitrators were properly before them, and it was held that the fact that the surety did not understand the real purport of the bond, or that he may have been misled by the belief of the principal as to certain things, did not relieve him from liability on account of the refusal of the principal to abide by the award, and that judgment must be rendered in favor of plaintiff for the penal sum of the bond, with interest thereon from the date of the breach thereof. Pub. St. Mass. c. 171, § 9.</p> <p>2. Same—Fraudulent Representations of Principal.</p> <p>Even when fraudulent representations are made by a principal, the surety cannot be permitted to show them as a defense against the obligee of a bond in a suit for the breach thereof.</p>

<p>1. Contempt—Penalty.</p> <p>It seems that in fixing a penalty for contempt in the violation of a temporary injunction in a patent case, the court may ascertain the amount of defendant’s profits, together with complainant’s costs and expenses, and impose the aggregate sum by way of fine, and direct the same to be paid over to the complainant in reimbursement of his damages.</p> <p>2. Same—A Ckiminal Offense.</p> <p>But as such contempt is a criminal offense, the fine should bear a just proportion to the magnitude of the offense, and ought not in general to exceed such amount as would ordinarily be imposed as a fine, when paid over to the government.</p>

On motion for a New Trial. This was an action for money had and received. The facts were that one Alexander Mair, the plaintiff’s assignor, had borrowed money of the bank to the amount of $5,000, and had given his note therefor, secured by five policies of insurance upon certain mill property, to the amount of such note.

This was an action commenced by the county of San Mateo, of California, under the provisions of an act of the state of 1880, (St. 1880,… Held: and its corporate powers exercised, under authority of the government of the United States; that by the several acts of congress set out in the answer the defendant was selected by the government of the United States as a means and instru'ment of that government to construct the railroad in question, and to keep and maintain the same…

<p>1. Statu Constitution—Conflict of Law.</p> <p>An assessment made in strict accordance with the provisions of the state constitution relating to the assessment of railroad property which violates the provisions of the fourteenth amendment to the constitution of the United States is void.</p> <p>2. Payment—Recovery Back—Duress.</p> <p>A payment under it is not a payment under duress, but is voluntary and cannot be recovered.</p>

In Equity. Hearing on application for injunction pendente lito. The hearing is on the bill and exhibits; so that all the matters of fact well pleaded may be taken as true.

<p>1. Admiralty—Rev. St. §§ 4233, 4234—Raets.</p> <p>Sections 4233 and 4234 of tlie Revised Statutes-were intended to embrace all classes of vessels, including rafts; and a raft that fails to carry proper torch-lights violates the statute, and is liable to the penalty imposed by section 4234, although rafts are not specially named in said section.</p> <p>2. Same—Seizure—Jurisdiction—Libel.</p> <p>As in cases of seizure the jurisdiction depends upon the fact and place of seizure, these must be averred in the libel; and if not, the libel may be objected to and dismissed at any stage of the proceedings.</p>

Libel of Alexander Baird et al. against the steam-ship Mark Lane to recover wages. The facts disclosed were as follows: The Mark Lane arrived at Philadelphia April 80, 1882, with a cargo of potatoes, part of which were rotten. The master contracted with one James Steen, a stevedore, to discharge the cargo, sound and unsound, at a price of 40 cents a ton. Steen in turn employed the libelants.

This action was begun in the marine court of the city of New-York. On May 29,1882, the defendant served its answer, whereupon plaintiff filed a noto of issue, and on June 7, 1882, noticed the case for trial for June 13th. On June 23d the defendant filed a petition and bond for removal into this court, and a removal was on that day duly had.

In Equity. Creditors’ bill. The Yaeger Milling Company, of St. Louis, was on the seventeenth day of August, 1880, and for several years prior to that date had been, a corporation engaged in the manufacture of flour, and owned a large mill and wheat warehouse, with elevator machinery, for the prosecution of its business. Both building and the machinery therein were unincumbered. On August 11, 1880, the company’s mill and warehouse were both destroyed by fire.

<p>In Equity. Bill to foreclose.</p>

<p>National Bank—'Transactions—Estoppel—Authority of President.</p> <p>Wliere the president of a national bank instructed its correspondent bank to charge up against the bank of which he was president the amount of a note given by him, in payment of such note, and an account was rendered showing the transaction, the bank was estopped from denying the correctness of the charge in an action by a receiver, subsequently appointed, seeking to set aside the transaction.</p>

<p>1. Attorney at Law—Disbarring.</p> <p>An attorney may be disbarred for participation in an unlawful, tumultuous, and riotoiis gathering, and advising, encouraging thereto, and taking from the jail therewith and hanging a prisoner, although no complaint under oath has been filed against him; and he would be liable for the offense charged against him by indictment in the state court, though no such indictment has as yet been fonnd.</p> <p>2. Same.</p> <p>An attorney is an officer of the court, admitted to practice under its rules, amenable to it, and liable to have such relations sundered upon satisfactory evidence of dishonest professional conduct, habits of general immorality, or any such single act of crime or vice as may show him unfitted for the trusts and confidence reposed in him as such attorney.</p> <p>8. Same—Notice oe Charges.</p> <p>While an attorney is entitled to notice of the charges preferred against him, and an opportunity to answer'before being disbarred, such notice is sufficient.. if it clearly intimates the misconduct with which he is charged.</p>

<p>Service of Process on Foreign Insurance Company.</p> <p>The Maryland legislature having required every foreign insurance company doing business in that state to execute a power of attorney appointing an agent upon whom process might be served, to have the same effect as if served on the company, and by the act defining “ process ” to be any writ issued upon any action by any court, held, that a foreign insurance company, liaving executed such a power of attorney, has agreed to be “found” in the state as fully as if it were a domestic corporation ; and that service of process of the United States circuit court on such an agent is valid, notwithstanding the suit may be upon a cause of action of which the state courts could not take jurisdiction, because of an act of the legislature restricting their jurisdiction, in suits against foreign corporations, to cases where the plaintiff is a citizen, or the cause of action has arisen within the state.</p>

<p>Fokeign Cokpobatjons—Non-Residents—Statute ov Limitations.</p> <p>A foreign corporation that by the laws of a state within which it comes on business can sue and bo sued, is not a non-resident in the sense that would prevent it from setting up the statute of limitations as a defense in an action against it; and section 2533 of the Code of Iowa, that provides that “ the time during which a defendant is a non-resident of the state shall not he included in computing the period of limitation,” has no reference to such a case.</p>

The plaintiff in his petition states that the defendant, on or about August 23, 1880, 'wrongfully, without leave, and with force and arms, attached, levied upon, seized, and took away certain.personal property therein described, belonging to the plaintiff, all of the value of $4,000, and converted and disposed of the same to his, the defendant’s, own use; for which he asked damages.

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

<p>1. Beneficial Union-—Default in Payment by Member—Estoppel.</p> <p>A party to whom a certificate of membership in an aid union had been duly issued, subsequent to a default in payment, and who thereafter had been twice assessed as a member by t-lie union, must be considered as entitled to the benefits of the union, although he had not paid the $1.30 required to be paid within 30 days after the presentation of his application.- The issuing of the certificate and making these assessments estop the union, after his death, from setting up this default.</p> <p>2. Same—Unwarranted Assessment.</p> <p>A failure to pay an assessment levied on a member for a death which occurred prior to the date of his certificate, the assessment oeing contrary to the p.'ain provisions of a by-law of the union, will not invalidate the claim of his representatives to benefits.</p>

Demurrer to Amended Answer. For report of opinion in original answer see ante, 544. This suit was brought to recover damages for the alleged unlawful taking, converting, and disposing, by the defendant, of certain ores, to the immediate possession of which the plaintiff was entitled.

<p>Practice—Extension of Time to Pile Bill of Exceptions.</p> <p>Where an attorney, through unfamiliarity with the rules of practice, has failed to have a bill of exceptions served, settled, and signed within the prescribed time, or to obtain an extension of time at the trial term, the court may, before judgment is entered and while the case is still pending in the circuit court, in its sound discretion, to prevent manifest 7w dshvp, relax the rule and allow additional time in which to serve and settle the proposed bill of exceptions.</p>

<p>1. Power of United States Court—State Court.</p> <p>Where a remedy could be enforced by a state court, this court has power to adopt the same remedy in favor of a non-resident creditor who ñas obtained a decree against a resident defendant.</p> <p>2. Practice—Previous Order' Affirmed.</p> <p>Upon an examination of this case it was Xield that the order of court previously granted should be affirmed, except in regard to taxes for 1880, which were inadvertently included therein.</p>

<p>1. Practice—Necessary Party—Trustee—Act Mabch 3, 1875, § 8.</p> <p>The successor in a deed of trust is a proper party defendant in a suit to adjudge the lien created,, by such deed a subsisting lien, and, if a resident of another district than that where the suit is pending, may be brought before the court under section 8 of act of congress of March 3, 1875.</p> <p>2. Same—Pendency of Pktok Suit-When a Bab—Injunction.</p> <p>Tiie pendency of a prior suit will not be a bar to a subsequent suit if the latter embraces more as to parties and subject-matter than such prior suit.</p> <p>3. Same—TIeoeiver Appointed by Another Coubt not Made Party.</p> <p>If a receiver appointed by one court is in possession of property lie is not amenable to suit in another court in respect thereto, and if the property has passed beyond his control he would not in any event be a necessary party in a proceeding to adjudge a lien on such property still subsisting, notwithstanding tlic proceedings in the court wherein lie was appointed receiver.</p>

In Bankruptcy. On petition of the assignee for an injunction, and for an attachment for contempt against Thomas Nestor for unlawfully interfering with, the property of the bankrupt. The facts of this case are substantially as follows: In 1873 Litchfield was adjudicated a bankrupt in the district court for the southern district of Hew York, and petitioner, who is a resident of the city of Hew York, was appointed assignee.

<p>Bankruptcy—Private Sale by Assignee—Inadequacy oe Price.</p> <p>Where an assignee sells property at private sale, in pursuance of an order of the court allowing him to sell as the register may direct, such sale will he set aside and a resale ordered when it is made to appear to the court that the property is worth a much greater sum than that at which it was sold, and parties are willing to hid it in at its real value, even in cases where there is no actual fraud on the part of those interested in the first sale.</p>

In this case, on application of plaintiffs, a writ of attachment issued and the property of defendant was seized by the United States marshal. Subsequently, the defendant, under the insolvency act' of Minnesota, (chapter 148, Laws 1881,) made an assignment for the distribution of his property under said law.

<p>1. Patents for Inventions—Reissue—Not Yalid.</p> <p>Where the claim in a patent was for “ bars, B, B, provided with interlocking knives, d, d, and operating substantially in the manner set forth,” and the claim in the reissue was “in a saw-mill dog, the combination of knives, d, d, arranged to move past each other in opposite directions and engage with the leg substantially in the manner set forth. ’ ’ Reid, that the claim in the reissue could not be sustained, as thereby the scope of the original patent was extended to an unauthorized degree.</p> <p>2. State of Art—Restriction of Invention. .</p> <p>When the state of the art is such that the field of invention is circumscribed, the invention of a new patentee must necessarily be confined strictly to the description of the article as set forth the specification and claims.</p> <p>3. Infringement—Evidence—Saw-Mill Dogs—Patents No. 134,653 and No. 122,215.</p> <p>Patent No. 134,653 does not appear to be infringed by the device manufactured by defendant under patent No. 122,215, and the bill should be dismissed.</p>

<p>1. Patents—Pleading Prior Use—Names of Witnesses.</p> <p>Only the names of those who have invented or used the machine or improvement alleged to anticipate a patent, and not of those who are to testify touching its invention or use, are required to be set forth in an answer making such a defense.</p> <p>2. Same—Same—Testimony.</p> <p>Where an original answer contains no allegation of prior use, but an amended answer does, testimony to establish such prior use, taken before filing the amended answer, under objection of counsel, who afterwards fully cross-examines the witnesses and offers rebutting testimony, may, in the discretion of the court, be allowed to stand.</p> <p>8. Same—Anticipating Device.</p> <p>In order to defeat a patent on the ground of prior use of the patented invention, it must appear that the anticipating device was embodied in distinct form, and was so far perfected as to have been capable of practical use.</p> <p>4. Same—Evidence as to Infringement—Denial in Answer.</p> <p>To allow testimony on the part of the defense, to show that the machine used does not infringe the patent of complainant, the answer siiuuld deny such infringement specifically; but if, by stipulation filed by counsel before taking testimony, it is agreed that defendant may put in testimony to show that there was no infringement, the court will not entertain an objection to such testimony.</p> <p>5. Same—Infringement—Injunction.</p> <p>Patent No. 233,409, known as the “ G-owen dog,” as invented and described in the specification, does not infringe patent No. 122,215, but with the addition made and used therewith by defendants, may do so, and they must be enjoined from its further use.</p> <p>6. Same—Patent No. 122.215 Yalid.</p> <p>Patent No. 122,215 is valid, and was not anticipated by patents No. 20,660, . No. 54,177, No. 52,904, No. 99,486, or No. 134,653, nor by the devices known as the “ Morse dog ” and the “ Muzzy dog. ”</p>

<p>1. Patents for Inventions—.Experimental Devices.</p> <p>Evidence of similar devices, merely experimental, will not defeat a patent, - though prior in point of time.</p> <p>2. Same—Not to Defeat Subsequent Patents.</p> <p>Although prior unsuccessful experiments in part suggested the construction which the patentee adopted and perfected, this fact will not defeat the patent.</p> <p>3. Combinations in Reissues—Use of a Part.</p> <p>Although the owner of a patent had the right to claim a combination in his reissue, the claim cannot be extended to the sole right to the use of a part of the combination.</p> <p>4. Same—Protection of—Substitution of Parts.</p> <p>The court will so protect a patented combination as not to allow it to he defeated by a mere substitution of parts performing the same functions.</p>

<p>Patents eon Inventions—How Construed.</p> <p>A patent claim must be construed in the light of the specifications, and where the specifications describe the entire article, parts of the description cannot he separately considered, to show an infringement of one of the parts.</p>

<p>Shipping—Stowage op Caustic. Soda and Cotton Ties.</p> <p>It appeared that caustic soda in iron drums is customarily carried in general cargoes with iron cotton ties, and that sucli drums are strong, durable, and airtight, and that breakage is infrequent; and it appeared that on the voyage in question they were safely stowed and secured, but were broken in consequence of violent and continuous storms; It was contended that it was negligence to have stowed the cotton ties below the caustic soda, because the injurious result of the caustic soda falling down upon the cotton ties, if the drums should break, was well known.</p> <p>Held, that under the circumstances of this case the negligence had not been proved.</p>

In Admiralty This was a suit by a father to recover damages for the death of his minor son, a deck hand on board the steamer Alaska, who was killed by the explosion of a boiler while she was on her regular trip to the Lake Brie islands. Defendant was the owner of the vessel, and was charged with personal negligence in allowing her to run with a deíoclive boiler.

<p>Tug—Negligence—Loss of Tow.</p> <p>A tug Laving two tows on long hawsers, m rounding a dangerous island, for not going further to the eastward, and for allowing her hawsers to slacken so that she lost all control over her tow, was in fault and should be condemned for the loss of the tow, which drifted on a reef and sunk.</p>

<p>' 1. Charter-Party— Seaworthiness. ’</p> <p>; ' Under the usual covenants'of a charter-party that the vessel is “ tight, stanch, ,and strong,” the owners are. answerable'for latent as well as-visible defects whereby the cargo is damaged. ■ ,</p> <p>2. Same—Latent Defects—Damage to Cargo.</p> <p>Where a 'cargo of coffee was damaged through a leak in the deck of a brig 13 years old on a Voyage from- Rio, and the evidence showed a “ middling pas- - ' sage,” with rough seas, hut no extraordinary perils for the season, and the vessel on arrival exhibited no signs of general strain, or any material loss of spars or sails; and probable causes of imperfection in the deck appearing, the leakage should be ascribed to the latter causes, and the owners held answerable for the damage, notwithstanding general evidence of thorough repair at the port of departure. ■ ■ ' ■</p>

<p>Admiralty—Advance Wages—Insurance.</p> <p>Where it is customary to charge seamen with interest and insurance on advances on account of wages, etc., as an idemnily to owners in case of loss, such seamen are not entitled to any part of the insurance paid the owners.</p>

<p>1. Admiralty—Proceedings in Rem:.</p> <p>A proceeding in rem is one in which the thing—tbe property seized—is itself sued instead of a sentient person, and in which, the property itself being sued, its owner is not recognized until he comes in, claims, and defends.</p> <p>2. Same—Proceedings, when Void.</p> <p>Where the property of libelant was condemned to sale in a proceeding to which he was not a party, and which was not a proceeding in rem, nor a proceeding against the vessel in any form, the order of sale is a nullity.</p> <p>3. Jurisdiction—Collateral Examination.</p> <p>A court may examine collaterally into the jurisdiction of another court to pass upon questions of title to property, and if the other court has done an act coram non judice, to disregard it altogether.</p> <p>4. Same.</p> <p>When a court possesses jurisdiction as to subject-matter and parties, it has a right to decide every question which arises in the case, and whether its decision be correct or otherwise, its judgment, until reversed, is binding upon the parties.</p> <p>5. Trial by Jury—Constitutional Guaranty.</p> <p>In a proceeding at common law a citizen of the United States cannot be divested of his property except by verdict of a jury, under due process of law, in a proceeding in which he is in some manner a party, having opportunity to be heard, and having a day in court.</p> <p>6. Penal Statutes—Porebiture.</p> <p>A state statute which provides that “ any person ” belonging to a steamer who engages in taking fish in violation of its provisions shall forfeit “ his vessel,” cannot be construed to mean any vessel which he emploj^ed in committing the offense; it cannot be enlarged by construction to mean that he shall forfeit tlie vessel of another person.</p> <p>7. Condemnation—Proceedings without Warrant or Law.</p> <p>A judgment of condemnation and sale of a vessel, witliout warrant of law, confers no right upon the sheriff to her custody. His possession in such case is tortious, and as against the process of the federal court ho is a mere trespasser.</p>