Volume 149 — United States Reports

Held: that the railway com’ pany only agreed that the quantity of grain which it would deliver at the elevators or tracks connected therewith, in the usual way in cars, for storage and handling, should amount on an average to at least 5,000,000 bushels per annum for a period of ten years, and that, in case, the grain so delivered,' or brought to the elevators for delivery, fell short of that quantity, it would pay one…

This was an action at law instituted by Henry Gassert, Jacob Eeding and James H. Steele, as plaintiffs, against Gusta vus Bogk, as defendant, upon a lease of certain premises in the city of Butte, and also certain mining claims in Silver Bow County, wherein plaintiffs prayed judgment against defendant for the restitution of the premises, and for damages for the detention thereof at the rate of $500 per month.

Held: that, notwithstanding the doubt arising from the lack of express provision for notice, the requirements of the Constitution as to due process of law had not been violated. On March 5,1887, the common council of the city of Portland passed an ordinance, No. 5068, providing for the construction of a sewer in the north part of the city, and known as Tanner Creek sewer.

On April 11, 1886, W. D. Powers was run over by a train belonging to the Richmond and Danville Railroad Company, at a station known as “ Lula,” and so injured that he died in a few-hours. This action was brought to recover damages therefor. The plaintiffs are his children, and the proper parties under the Georgia statutes to maintain the action.

<p>Claims 3, í, 5 and 6 of reissued letters patent No. 10,806, granted February 8, 1887, to the National Meter Company, as assignee of Lewis Hallock 'Nash, for improvements in water-meters, on the surrender of original letters patent No. 211,582, granted to said Nash, January 21, 1879, are-not infringed by water-meters constructed according to letters patent reissued to the Hersey .Meter Company, No.-10,778, November 2, 1886, as. assignees of James A. Tilden, and to letteri patent No. 357,159, granted to James A. Tilden, February 1, 1887, and to letters patent granted to said company, as assignee of said Tilden, No. 385,970, July 10,1888.</p> <p>The Nash piston has a side-rocking movement across the centre of the- . cylinder, upon successive bearing points made by the contact of a projection on the piston with the recess in the cylinder, or conversely, and the piston rotates upon its own axis, so that each projection comes successively into each recess of the cylinder.' But in the defendant’s structure, there is no side-rocking, nor any rotary motion, and each projection in the piston always operates in-connection with one particular corresponding recess in the cylinder, and never leaves that recess.</p>

Held: That the exceptions and the writ of error properly brought the matter before this court; (2) That the judgment below should be reversed. The defendant below, George E. Wilson, the plaintiff in. error here, is a bookseller arid publisher, carrying on his business in Chicago, Illinois.

This was an appeal from an order denying an application for a writ of habeas corpus addressed to the- court below by Albert Frederich, a prisoner confined in the penitentiary of the State of Washington, at Walla Walla, in that State.

Held: speaking through Mr. J ustice Field, that “ a patent of the United States, regular on its face, cannot, in an action at law, be held inoperative as to any lands covered by it, upon parol, testimony that they were swamp and overflowed, and, therefore, unfit for cultivation, and hence passed to the State under the grant of such land on her admission into the U niott ”; and after citing, and approving the decision made…

<p>APPEAL EEOM THE CIRCUIT COUET. OF THE UNITED STATES EOE THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>This is an appeal from the decree of the Circuit Court of ’ the United States for the Northern District of Illinois, in a proceeding, to foreclose a mortgage executed by the Peoria and Rock Island Railway Company to secure its first mortgage bonds to the amount of $1,500,000.</p> <p>) The original bill was filed in October, 1874, by Yeeder G-. Thomas, Daniel R. Thomas and Thomas B. Simpson, citizens of the State of New Jersey, as holders of certain mortgage bonds, and on behalf of all of the holders of such bonds.. Among others it made the trustee in the mortgage given to-secure the bonds, and 'William R. Hamilton, Benjamin E. Smith and William Dennison, defendants, and, beside setting forth the default in the covenants of the mortgage, charged,, among other things, that these mortgage bonds were issued, as it was ’represented, for the purpose of constructing and equipping the said railroad, and that they were placed upon the market for general sale by the firm of Turner Bros., bankers, of the city of New York, who assumed and represented themselves to be the financial agents for the railway company, and, as such agents, represented by pamphlets,, statements, and otherwise that the road of the said railway company was a completed road, built by subscriptions to its. capital stock; that the capital stock, amounting to $2,000,000, had all been paid in; that the said road was open and being operated successfully; and, finally, that the said bonds were offered for sale by the said company for the purpose of placing upon the road the equipment necessary for the business offered, and to construct cars, engines, depots, and machine-houses, such as were required by the business of the company.</p> <p>The bill charges that the complainants purchased and became the holders of their' bonds in reliance upon these representations, and that the entire issue of bonds was sold by Turner Bros, under like representations; that these representations were in fact false and fraudulent; and that the officers of the railway company and the defendants, Smith, Dennison, and Hamilton, directed and authorized them to be made, knowing them to be false. It is charged 'that in June, 1870, while Hamilton was president of the railway company, a contract was made with Smith and his associates for the construction of the railroad, and that Dennison was one of the associates of Smith in this contract; that by the terms of the contract Smith and his associates agreed to iron, depot, and moderately equip with rolling stock the railway, and the railway company was to deliver to him, for himself and associates; $1,250,000 of the .capital stock of the company, and the entire $1,500,000 of the first mortgage bonds; that the $1,250,000 of the capital stock was immediately upon the making of the contract issued and delivered to Smith .for himself and his associates, being a large-majority of all of the capital stock of the company, and that Smith and Dennison and their associates thereby-obtained absolute control of the management of the railway company, and caused such officers and directors to-be elected as were friendly to their schemes and in their control ; that the road was insufficiently constructed and insuffi* ciently equipped on the part of Smith and his associates ; that, desiring to sell the bonds, and having control of the management of the company, Smith and his associates fraudulently caused the bonds to be offered for sale through Turner Bros, as the financial agents of the railway company, and as for its benefit upon the said representations, and that in .fact the bonds were not put upon the market and sold for the benefit of the railway company, and it was not intended or expected to use the proceeds thereof for the purpose of placing the necessary equipment upon the road as was represented, but, on the contrary, the entire proceeds of the bonds were received by and divided among Smith and his associates, and that the railway company has never had any other or greater equipment of rolling stock than that furnished by Smith under his construction contract before t-he sale of the bonds.</p> <p>The bill charges further.that in 1871, owning and controlling the capital stock of the railway-company, Smith and his associates caused Smith, Dennison, and Hamilton, and others in their interest, to be elected directors, Hamilton to be elected president, and Smith to be elected vice-president of the railway company, and that as such they continued to control the affairs of the railway company down to the time of the filing of the bill.</p> <p>Among other charges of fraud in the bill it is charged that Smith, Dennison, and others of the' directors of the railway company had caused the railwa3 company to hire cars from the Western Car Company at an exorbitant rate, and. that these contracts for the use of cars were made and continued by reason of the control of Smith and his associates over the affairs of the railway company.</p> <p>-The bill sought a foreclosure of the mortgage and prayed for the appointment of a receiver.</p> <p>On the 23d of January, 1875, an order was entered appointing John R. Hilliard receiver of the Peoria and Rock Island Railway Company and its property, and on the 1st of February, 1875, Hilliard, as receiver, went into the possession and into the operation of the said railway. Hilliard remained in control and operated the railroad until after its sale in 1877, .and until possession was delivered by him, under the order of court, to the purchasers who had become organized as the Rock Island and Peoria Railroad Company,' and who have ever since operated this railroad.</p> <p>A. decree of foreclosure was rendered on the 11th day of January, 1877. It .directed a sale to be made by the master in chancery of the franchises and property of the railway company. It contained directions as to the application of the proceeds of the sale, ordering, among other things, that, after .payment of specific sums provided for, the balance should be paid to the clerk of the court, who should apply the same, under the direction of the court, first, to the payment of all remaining claims of intervening creditors, as they should be allowed by the court, and next to the payment of the bonds and coupons secured by the mortgage, which should be outstanding and unpaid. It authorized the master to receive from the purchaser or purchasers, after payment of the sum of $100,000 of the amount of his bid, for the balance of the sum bid, in lieu of cash, outstanding and unpaid bonds and cohpons at such percentage as the court should direct on the approval of the sale; and it authorized the purchaser or purchasers of the property and franchises of the railway company to reorganize under and by virtue of the provisions of the charter of the said railway company, and to be invested with all the rights, franchises, privileges, and powers of the said railway company.</p> <p>On September 17, 1877, an- order was entered approving’ the master’s report of sale, and ordering that the sale made to Ransom R. Cable for $550,000 be confirmed. The purchaser Cable was directed by this order to deposit all such bonds and coupons as he should desire to pay in on account of the purchase with the clerk of the court. The court also ordered that all petitioners for allowance of intervening claims complete their proofs of such claims by the 1st of October, 1877.</p> <p>On the 14th of December, 1877, an order was entered by the court approving the report of the master, showing the execution of a deed by him of the property under the foreclosure decree to the Rock Island and Peoria Railway Company, in pursuance of an order entered on the 11th of December, 1877, and approving the deed, a copy- of .which is set forth in the order. This order also approved penal bonds in the sum of $100,000 each, payable to the clerk of the court, for the use of whomsoever should become interested, one of such bonds being expressly conditioned for the payment to the Western Car Company of any amount which should be found due to it, reciting the intervention of that company and the claims asserted by.it against the proceeds of the sale of the property of the railway company.</p> <p>The original intervening petition of the Western Car Company in this cause was filed on the 11th of December, 1876. It asserted that at the time of the appointment of the receiver the railway company was indebted to the car company in the sum of $35,106.49 and interest thereon, for car rentals under contracts made between the railway company and the car company. It also claimed the sum of $1500 under the terms of these car contracts for the value of 2 box cars destroyed by the railway company and not replaced. It claimed that the furnishing of cars to the railway company under these contracts was in the nature' of supplies furnished to it by means whereof the company had been enabled'to transact its business, and prayed that the receiver might be ordered to pay his indebtedness to the petitioner out of any moneys in his hands or income received from the business of the railway company.</p> <p>To this original petition were attached statements of account, as exhibits, shoeing the amount claimed by the car company against the railway company prior to the appointment of the receiver, and.also copies of two' contracts between the car company and the railway company, one bearing date March 5, 1872,-for the leasing of 70 box cars and 20 stock , cars, the other bearing date October 1, 1873, for the leasing of 150 box. cars.</p> <p>-' To this original, petition answers were filed by both the complainants in the .original cause and the receiver. The answer of the complainants in the original cause charged that-these contract's were fraudulent and void, for the reason that-at the time when they were made Benjamin E. Smith was the owner of a large amount of the stock of the car-company, and. its president and in control of its operations, and Hamilton was the owner of, a considerable portion of its stock, and the-remainder of its stock was owned and controlled by the associates of 'Smith and Hamilto.n; that at the same time-Smith was the vice-president of the railway company and .the •owner and holder of a great portion of its stock, and controlling its operations through the officers and agents whom he named and appointed, and Hamilton was the president of the railway company; and that Smith, Hamilton, and their associates owned and controlled the majority of its capital-stock, and with their associates combined to defraud the owners and holders of the first mortgage bonds, and made these' contracts for leasing cars for that purpose.' The answer further charges that the rental reserved by. these contracts, was exorbitant, and that the fair rental for the cars in question- did not exceed the sum of $10 per month per car, whereas the contracts reserved a rental of $20 per month per car; and that the car-company received from the railway company moneys to the amount of more than $76,000.</p> <p>The answer of the receiver stated that the books of the railway company showed credits to the car company for rental of cars to the-amount of $115,686.70, aqd payments made to the car company prior to his appointment, amounting to $76,031.70, and that since his appointment he had paid over to the car company, under the order of court, $6237.01. It alleged that the two oats were destroyed in the possession of the railway -company more than six months prior to his appointment, and charged that the rental reserved by the contracts was extortionate, and that the cars, were not worth to the railway company and could not be made worth more than from $7 to $10 per month per car. The receiver also stated that he had not as receiver used these cars under the said contracts, or in anywise -adopted, recognized or confirmed the contracts.</p> <p>Both answers, that of the complainants to the original bill and of the receiver, denied that the rental of the cars was in the nature of supplies or that the 'car company should- have precedence or priority awarded to it over the bondholders.</p> <p>On March 14, 1877, the car company filed its amended petition. In this it represented that when Hilliard was appointed receiver the railway company was in possession of 240 cars belonging to the car company under the two contracts. That on June 11, 1875, the former contracts were modified and changed by another contract made between it and the receiver, by which.it rented to the receiver 138 of these cars, and that •an additional clause was appended to that contract renting to "the receiver 56 other cars. The amended petition set out verbatim this contract with the receiver and the additional clause appended to it, and charged that the receiver continued in-possession and use of the 138 cars and the 56 cars, and claimed that there was due from the receiver to the car company for the rental of these cars' $15,281.34, with interest.</p> <p>It is also claimed that the rental due for the use of its cars by the receiver was in the nature of a current operating expense, and a-lien on the road and its property superior to that of the mortgage, and prayed that in case the fund in the'hands of the receiver should not be sufficient to pay these claims, the payment thereof might be enforced as a first lien on the road and property of the railway company, and paid out of the proceeds of any sale thereof.</p> <p>To this amended petition were attached statements of rentals charged- to be due to the car company from the receiver.</p> <p>On May 26, 1877, an order was entered, directing the amendment to the petition of the car company, filed March 14:, 1877, to be stricken out as an amendment to the petition theretofore filed, and ordering that it stand as a petition against the receiver, and giving the car company leave to file a supplemental petition.</p> <p>This supplemental petition was' filed May 26, 1877. It averred, as supplementary matter, that the receiver had notified the car company that he would not keep the 138 cars in service after May 1, and that he had returned 88 of said cars, and proposed returning the remaining 50; that the receiver had neglected to keep the cars in repair, as provided in the contract, and had returned them in bad order and out of repair ; and that the car company had been obliged to put them in the shops for repairs, and had thereby sustained large damages.</p> <p>That as to the 56 cars, and to the rental due on them, the receiver had notified the car company that he did not, and would not, recognize any liability to it for the use or rental of the 56 cars.</p> <p>On the 27th of June, 1877, the receiver filed his answer to the amended petition of the car company, in which he stated that when he took possession as receiver of the property of the railway company only 135 of the 138 cars came into his possession. That during the months of February and March, 1875, he used the 135 cars and paid the car company $12 per month pencar; that about April, 1875, he obtained leave from the court to rent these cars at a rate not to exceed $10 per month per car, and executed the agreement dated June 11, 1875, a copy of which is set out in the amended petition of the car company.</p> <p>That in April, 1877, he became satisfied that the cars so rented could not be used to advantage at the rental of $10 per month, and notified the car company that he should return them on May 1, 1877, and that he did return them from time to time, as collected.</p> <p>•That when he received these cars into his possession as receiver they were in poor condition and out of repair, and he •was obliged to and did make large and extensive repairs on them, and that he kept them and returned them in better repair than when he received them, and that they were in good-repair for use on said road.</p> <p>As to the 56 cars the receiver stated, that he did not receive these cars from the car company, and did not agree with the car company to pay it any rental for them, and never executed and delivered to the cab company the alleged writing in reference to'the same; that Mr. Ingersoll, who was his attorney and the attorney of the car company, brought a replevin suit in the. United States Circuit Court for the Northern District of Illinois against the Chicago and Northwestern Kail way Company, and under the replevin writ in that suit caused the 56 cars to be seized, he and one Whiting giving the bond necessary for the obtaining of . the writ, and, in order that the bondsmén might have security to indemnify themselves upon their bond, they kept these cars in their possession and obtained leave from the receiver to store them on the side tracks held by him as receiver; that it was afterwards agreed between Ingersoll and the receiver that when the receiver should have occasion to.- use more cars than he then had as receiver he might use these 56 cars, paying the usual mileage rate of one cent per mile run, when the replevin suit should be determined, but that -the cars should only be used for the local business of the recbiver’s road, and should not be allowed to run or go off from th,at road. The answer further stated that he had used the cárs to some extent under his agreement, and was ready to account for such use when the replevin suit should be determined, and to surrender the cars at that time.</p> <p>The answer further stated that in 1815 the general agent oi the car company was in Peoria, and that Ingersoll and this general agent then expected the replevin suit-to be decided before the December following, and this agent desired, if this was done, to make some arrangement for renting these 56 cars without being required to return them again to Peoria, and the copy of the contract of June 11, 1875, belonging to the receiver, being then in the possession of Ingersoll, as the receiver’s attorney, Ingfersoll endorsed upoñ it the additional clause or memorandum, a copy of which the car company had set out in its amended petition, and the receiver signed this as a memoranclum, but it was never given to or delivered to the car company or any one for it, and never passed out of the control of the receiver, and that the receiver had, and claimed to have, no power or authority or intention to make any contract for the rental of the said cars, and instructed his attorney, not to allow this memorandum to go out of his possession or to make any contract in relation thereto, even if the replevin suit should be decided, unless the court should first authorize the making of such contract as to the said 56 cars. And the receiver averred that the replevin suit had never been decided; that he had never had the full use of the cars; and denied that he owed any rental thereon; and stated that he had never applied for leave of court to make any contract for the rental of the 56 cars, because the circumstances under which such contract was to be made had never arisen.</p> <p>On July 3, 1877, the complainants in the original cause filed an amended answer to the petition of the car company, in which the car company asserted and asked for payment of the balance due for rentals prior to the appointment of the receiver. This amended answer sets out more strongly the alleged fraudulent character of these car contracts between the car company and the railway company.</p> <p>It shows the construction contract on June 1, 1870, made by the railway company with Benjamin E. Smith and his associates; that Smith was the president of the car company, and Dennison and others were associates of Smith in the construction contract and in the car partnership and company; that Smith and his associates received from the. railway company 12,000 shares of its stock, which constituted a large majority of the entire stock, and also received all of the first mortgage bonds of the company; that they caused these bonds to be advertised for sale and procured their sale by means of •false representations, representing, among other things, that the bonds were sold by. the railway company for the purpose of placing the necessary equipment upon its road, and that complainants purchased their bonds -relying upon these false representations; and they charged that in fact the bonds were mot held by the railway company nor were the proceeds thereof used in furnishing the equipment for its road, but were used 'for the private benefit of Smith and his associates.</p> <p>This amended answer further shotvs that about January 1, 1872, Smith and his associates united themselves together in a, partnership known as. the Western Car Company, and that Hamilton, who was then the president of the railway company, and Charles W. Smith, who had been appointed by Benjamin E.' Smith the general manager of the railway company, also became partners in this car partnership, and that the partnership furnished the cars to the railway company and made these contracts with it under these circumstances; that afterwards Smith and his associates and other partners in the Western Car Company organized themselves into a corporation under the laws of Delaware, but that this corporation was but a continuation of the partnership bearing the same name, and was controlled, governed and directed by Smith and his associates.</p> <p>That during 1872 and until the 1st of February, 1875, Smith and his associates controlled and dictated all the contracts and business operations of the railway company; that Hamilton, its president, Benjamin E. Smith, its vice-president, and all of its directors were chosen and appointed by Smith and his associates ; that the contracts made and dictated by them were fraudulent and void in equity; and that the amount agreed by these contracts to be paid as rental was grossly excessive.</p> <p>They claimed further that the railway company had paid to the car company for the use of its cars more than their use was worth; and that'the car company should be precluded from claiming any sum whatsoever as due for rental, and was estopped from claiming to own the cars.</p> <p>On October 16, 1877, which was after the time fixed by the court for closing proofs in all intervening claims, the car company filed a further amendment to each of its intervening, petitions. Its original petition it amended by praying that whatsoever sum should be found due to it might be paid out of the proceeds of the sale of the road. It also alleged that the reasonable rental for all the cars named in each of its petitions, irrespective of any contract price, was, up to the end of July, 1874, $20 per month per car, and from that time to the appointment of the receiver $15 per month per car, and from that time on at least such amount as is named in the contract between it and the receiver.</p> <p>■ Its petition against the receiver it amended by charging that at the time of the appointment of the receiver and of his entry into the possession of the railway, he took possession of 100 cars which had been rented by it to the railway company, and which were known as White Line cars; that the receiver held-these cars for some months and returned them some time in March or April, 1875,. in bad condition and out of repair; and. that the petitioner upon receiving them was obliged to expend moneys in their repair.</p> <p>It also charged, as to the 56 cars, that the replevin suit com cerning them had been décided by the court in favor of the car company; that since the receiver was appointed he had held and claimed the right to hold these cars, pending the replevin suit, and refused to pay rent for them; and it claimed rental due for their use, amounting to $13,000. It also claimed that these 56 cars were badly out' of repair, and so damaged for want of ordinary necessary repairs that it would cost the car company $9500 to put them in good repair.</p> <p>Afterwards, and on October 31, 1877, it filed a petition praying for an order directing the receiver to return the 56 cars, and on this petition the receiver was ordered to surrender and deliver these cars to the car company.</p> <p>On these issues a large quantity of. evidence was offered before the master by both parties.</p> <p>The respondents claimed that the only amounts that were in equity due to the petitioner, and should be allowed to it from the fund in court, were the balance of rentals due from the receiver on the 134 cars, $8789.86 ; the mileage earned by the 56 cars, $3496.78; and the value of one car lost and not returned by the receiver, $450; making a total of $12,736.64.</p> <p>The master’s report in this intervening cause, filed June 22, 1885, found, as to the amount claimed as due from the railway company prior to the receivership, that the question as to whether the contracts were fraudulent and void was “ unimportant,” in view of “ the practice of the court in cases of this character to allow against the fund or the receiver claims of this kind- established by the testimony as reasonable and just, which have accrued during the period of six months prior to the appointment of the receiver, and during the receivership,, independent of any contracts which may have previously existed, unless such contracts ' have been recognized and' adopted by the court ”; and that for the period of six months prior to the receivership there was due the car company a balance of $2062.99. The master disallowed claims as to lost cars, and repairs on White Line cars.</p> <p>As to the claims against the receiver, the master found the car company entitled to the balance remaining unpaid of the rental of the 135 cars, at the rate which the receiver had agreed to pay, amounting to $8807.97. He also found under protest the car company entitled to the sum of $14,046.55 paid out for repairing these cars after their return by the receiver. As to-this allowance for repairs, the report says: “ I have found it difficult to deal with this branch of the case for the reason that while it appears that the bills which have been presented for these repairs were actually paid by the petitioner, it is also evident in many instances these repairs were extravagantly conducted, and that in many respects they were rendered ^necessary by their condition before they came into the hands of the receiver, and there is much testimony in the case showing this to have been the fact. It is also apparent from the testimony that in many cases cars were practically rebuilt and renewed. Upon a very careful examination of all the testimony bearing on this branch of the petitioner’s claim, I find it impossible to separate items of this account in such a way as to equitably charge this respondent with such portion of the repairs as he should be called upon to pay upon the basis of the claim of the petitioner, although in my estimation the effect of the testimony is tó show that a credit at least to some extent of the amount charged by the petitioner upon this item should be~applied to the reduction of this claim.”</p> <p>The master allowed the petitioner mileage on the 56 cars up to December 1,1875, and a rental of $10 per car per month from then until they were surrendered, although, as he says, “ perhaps it (a contract as to these cars) was not finally consummated or delivered.” He also allowed $5650, the full amount claimed as expended in repairing these latter cars, though he finds that they came into the receiver’s possession in bad condition, for the same reason which he had given as to the claim for repairs to the 138 cars, that he' was unable to make an equitable distribution of this. The master disallowed .all claims for interest, and found'the total amount of $43,816.69 due to the car company.</p> <p>To this report exceptions were taken by the car company, the complainants in the original bill, and the receiver, which were argued before Mr. Justice Harlan in June, 1887, and on August 29, 1888, his;.-ppinion in this intervening cause was filed. 36 Fed. Rep. ¿08.</p> <p>In this opinion the contracts between the car company and the railway company are held to be fraudulent and void as to the railway company. But the court holds that nevertheless the car company is entitled to be reasonably compensated for the use qf its cars, without reference, however, to the con-' tracts.</p> <p>As to what would be a reasonable compensation, the court holds that “a fair compensation for the use of these . . . would be such amount as similar cars to be used in the same manner and upon similar roads would commonly rent for in the open market.”</p> <p>The court then states the general principles. which have been established by the decisions of this court as to charging the income of the receivership with the payment of certain classes of liabilities of the railroad company incurred prior to the receivership, and their payment from the proceeds of the sale of the railroad prior to the mortgage indebtedness. It holds that the six months rule, which is the general rule in.the Seventh Circuit,' should govern, and finds the car company entitled to $8162.99, as the balance due to it for the use of the cars during the six months prior to the receivership, thus increasing by $6100 the allowance made by the master' on this branch of the case.</p> <p>As to the claims against the receivership, the court found, that the receiver was chargeable with the rental of 188 cars,, instead of 135, as found by the master, amounting to $9667, and with the $14,046.55 paid by the car company for repairs on these cars. The court also allowed the car company the rentals claimed for the 56 replevied cars, $12,857.32, though, as the opinion states, “with great difficulty.” It also allowed the $5650.32 claimed for repairs of the replevied cars. The total amount found due to the car company was $50,775.52, and interest at six per cent was allowed on this sum from. June 22,1885, the date of the filing of the master’s report.</p> <p>On October 9, 1888, the final decree was entered, from which the complainants in the original foreclosure suit prayed and were allowed an appeal.</p> <p>After the entry of the decree, Eansom E. Cable filed a petition, praying that the decree might be opened, and that he might be made a party defendant thereto and to the intervening cause, for the purpose of prosecuting an appeal therefrom,, or be allowed to prosecute an appeal from said decree in the-names of the complainants in the original cause. This petition, represented that a decree directing the sale of the railroad property and franchises was rendered 'January 11, 1877, and that at this sale under', this decree the -petitioner had become the purchaser, and the sale to him had been confirmed, and he had been ordered to pay into court on his bid all of the first mortgage bonds held by him, and had deposited under this order 1395 of the entire 1500 first mortgage bonds of said' company. On December 1, 1888, it was ordered that leave be granted Cable to prosecute the appeal in the name of the complainants to the original cause, and that this appeal should, become a supersedeas on his filing an appeal bond in the sum ■ of $80,000.- The bond was therefore filed, and thereafter the record on- this appeal was brought to this court.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>In equity to prevent .the infringement of letters patent. The •case is stated in the opinion.</p>

Held: 'That the executed agreement on the part of the city to subscribe for stock, and on the part of the company to receive bonds in pay-ment therefor, was not affected by the further act of the city in parting with its stock to the company in consideration of a return of a portion qf the bonds;, and that.whatever wrong might have *123 been committed by the city council in the latter transaction, did. not vitiate the…

Held: also, that the Noordland was in fault for backing nearer to the New York side of the river than was necessary or was prudent in view of the course and movements of the Servia; for not taking timely measures to stop her stern way after she had reached mid-river; and for failing to observe the movements of the Servia with due attention.

ORIGINAL. .This was a petition for a writ of habeas corpus filed by leave: of court March 7, 1893,' by M. Y. Tyler, sheriff of the county of Aiken, South Carolina, representing that he is unjustly detained by Gr. I. Cunningham, United States marshal for the 'District of South Carolina, to which the marshal made return upon a rule laid upon him to do so.

Held: that that judgment was rendered in the exercise of judicial determination, and not in the discharge of a ministerial duty, and that the-petitioners’ remedy, if they deemed themselves aggrieved, was by writ of error. The case is stated in the opinion. Mr. W. Hallett Phillips for petitioners. Mr. George T. White, opposing. Mr. William Richardson- and Mr. Francis Martin were with him oh the brief.

<p>To give a Circuit Court of tbe United States jurisdiction on the ground of diverse citizenship, the facts showing the requisite diverse citizenship must appear in such papers as properly constitute the record of th case.</p> <p>The refusal by the trial court, during the progress of the trial, of leave to Sle a plea on the question of the plaintiff’s citizenship and to permit issue to be joined thereon is within the discretion of that court and is not reviewable here.</p> <p>A person in charge of a joint railroad warehouse in a railroad centre in Texas, the property of one of several companies which unite in bearing the expense of maintaining it and in selecting its employés and in controlling its expenses, who makes no contracts and handles no moneys on behalf of-another railroad centering there, but not participating in the selection of the employés and in controlling expenses, and who is not on the pay-roll of the latter company, is not its “ local agent” upon whom process may be served under the provisions of the statutes of that State (Sayles Revised Civ. Stats. Art. 1223a)„</p> <p>Tjhe provisions of the Texas statutes which give to a special appearance, made to challenge the court’s jurisdiction, the force and effect of a general appearance, so as to confer jurisdiction over the person of the defendant, are not binding upon Federal courts sitting in that State, under the rule of procedure prescribed by the fifth section of the act of June 1, 1872, as reproduced in Rev. Stat. § 914.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.</p> <p>The case is stated in the opinion.</p>

This was a bill in equity for the infringement of letters patent No. 262,977, issued August 22,1882, to Morris L. Orum, for an improvement in looks for furniture, such as are used on bureau or desk drawers, or the doors of wardrobes, washstands, &c., and as stated'by the patentee in his specification : “ It has for its object to provide a lock of such shape as to adapt it for insertion in a mortise of peculiar form, whereby a pair of the securing scréws or nails is dispensed…

<p>APPEAL FROM . THE CIRCUIT COURT OE THE UNITED STATES EOR. THE EASTERN DISTRICT OE NEW YORK.</p> <p>' The case is stated in the opinion.</p>

Held: that the case was a clear one in favor of the bar of limitation, both by the state statute and by the bankruptcy statute. The case is stated in the opinion. After hearing counsel for appellant the court declined to hear further argument. *232 Mr. Benjamvn G. Hitching», (with whom was Mr. B. F. Tracy on the brief,) for appellant.

Held: that this action conformed to the mandate, and was not subject to review by the Circuit Court of Appeals.

<p>The action which § 3011 Rev. Stat., as amended by the act of February 27, 1877, 19 Stat. 240, 247, c. 69, authorizes to be brought to recover back an excess of duties paid, cannot be maintained by a stranger, suing solely in virtue of a purchase of claims from those who did not see fit to prosecute them themselves.</p>

This was a bill in equity, filed December 8, 1885, by John I. Blair, a citizen of Missouri, against Samuel C. Shaeffer, a citizen of Ohio, and other persons, citizens of other States, claiming under him, setting forth a contract in writing between the plaintiff and Shaeffer, dated February 4, 1884, (which is copied m the margin,1) and praying that Shaeffer might he ordered to convey to the plaintiff the lands described in that contract, and that it be adjudged that the…

Held: .That the certificate was irregular, as a quorum of the court did not sit in the case; (2) That it did not comply with rule 37 of this court, inasmuch as it did not contain a proper statement of the facts on which the questions or propositions of law arose; (3) That the act of March 3, 1891, does not contemplate the certification of questions or propositions of law to be answered in view of the entire record in a…

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.</p> <p>The case is stated in the opinion.</p>

<p>A bill of exceptions signed after the final adjournment of the court for the term, without an order extending the time for its presentation, or the consent of parties thereto, or a standing rule authorizing it to be done, is improvidently allowed; and when the errors assigned arise upon the bill, the judgment will be affirmed.</p>

This action was commenced in the court of common pleas of Logan County, Ohio, to foreclose a mortgage made by Nash to Harshman of real estate then owned by him, and conveyed by him to one Dupee after the execution of the mortgage. Nash and Dupee were both made defendants. After issue joined the cause was removed to the Circuit Court of the United States on the defendants’ motion, on the ground of local prejudice.

This was a motion to dismiss for want of jurisdiction. The motion was also entitled in the following cases: Atlantic & Pacific Railroad Company; Burlington & Missouri River Railroad Company; California, Central Railway Company ; California Southern Railroad Company; Chicago, Kan. & Nebraska Railway '• Company;' Missouri Pacific Railway Company; St. Louis & San Francisco Railway Company ; Southern California Railroad Company.

Held: that there was error in admitting this testimony.

Held: and no court would be justified in holding, that these men were all criminals Who went on and put up a little mill for the purpose of aiding their neighbors in procuring lumber for domestic purposes.

Held: in substance, that it did not so conclusively fix and determine the commissions and compensation of the postmaster as to make the statement of her accounts based thereon conclusive against her and her sureties.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The case is stated in the opinion.</p>

<p>Under a statute of frauds which requires the consideration of a promise to answer for the debt of another to be expressed in writing, a guaranty by a third person of the payment of a negotiable promissory note need not itself express any consideration, if written upon the note before it is delivered and first takes effect as a contract; but must, if written after-wards.</p> <p>A negotiable promissory note, even if not purporting to, be “ for value received,” imports a consideration; and the endorsement of such a note is itself prima facie evidence of having been made for value.</p> <p>A promissory note payable to the maker’s own order first takes effect as a contract upon endorsement and delivery by him.</p> <p>The statute of frauds of a State, even as applied to commercial instruments, is a rule of decision in the courts of the United States.</p>

Nix v. Hedden, 149 U.S. 304 (1893), is a decision by the Supreme Court of the United States in which the Court unanimously held that tomatoes should be classified as vegetables rather than fruits for purposes of tariffs, imports and customs. Justice Horace Gray delivered the opinion of the Court in holding that the Tariff Act of 1883 used the ordinary meaning of the words "fruit" and "vegetable", instead of the technical botanical meaning.

These were two bills in equity, heard together in the Circuit Court, and argued together in this court.

Held: that W., being a bona fide holder of the bonds secured by the first mortgage, who had purchased the bonds in good faith, had through the mortgage a prior lien on the whole line *328 for the full-amount of the face of his bonds, which was not affected by the fact that the new company acquired its rights and property, not directly from the first company, but through intervening conveyances.

<p>The language of commerce, when used in laws imposing duties on importa^ tions of goods, and particularly when employed in the denomination of articles, must be construed according to the commercial understanding of the terms employed.</p> <p>This rule is equally applicable where a term is confined in its meaning not merely to commerce but to a particular trade, and in such case, also, the presumption is that the term was used in its trade signification.</p> <p>In an action against a collector to recover an excess of duties paid under protest, the defendant is entitled to show that words employed in a tariff act have a special commercial meaning in the trade, and to have it submitted to the jury whether the imported goods in question came within them.</p>

<p>error to the circuit court of the united states for the EASTERN DISTRICT OF PENNSYLVANIA.</p> <p>The case is stated in the opinion.</p>

Held: under Adams v. Burke, 17 Wall. 4S3, that the seller was not liable, in an action for infringement, to the owner of the patent for Connecticut. This was an action at law, brought in the Circuit Court of the United States for the Eastern District of Michigan,-in August, 1886, by Isaac S. Hobbie and John A. Hobbie. The original defendants wére Charles E. Jennison and Isaac H. Hill.

<p>Tlie 'statutes of the State of Minnesota, requiring railway companies to fence their roads, are not in conflict with the Constitution of the United States.</p>

John Baugh,, defendant in error, was employed as a fireman on a locomotive of the plaintiff in error, and while so employed was injured, as is claimed, through the negligence of the engineer in charge thereof. He commenced a suit to recover for these injuries in the Circuit Court of the United States for .the Southern District of Ohio.

Held: that the evidence'showed that the parties had made a complete settlement of their rights under the contract, and that B. had parted with all his interest in the property, and the bill must be dismissed.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR. THE EASTERN DISTRICT OF MISSOURI.</p> <p>The Metropolitan’National Bank of New York filed its bill of complaint against the St. Louis Dispatch Company, a corporation organized under the laws of the State of Missouri; the Dispatch Publishing Company, a corporation likewise organized under the laws of that State, and H. L. Sutton, trustee, a citizen of Missouri, July 1, 1887, and an amended bill, April 21, 1888, which averred: “ That on or about the first day of June, A.D. 1877, the said ‘ The St. Louis Dispatch Company’ owned a certain daily evening newspaper in the city of St. Louis known as the St. Louis Dispatch,’ and no other property whatsoever unconnected with and not appurtenant to the publication and operation of said newspaper; that the said The St. Louis Dispatch,’ a newspaper, had been published continuously and daily for many years, to wit, since on or about the year 1852, and continued to be published daily excepting' Sundays, up to the date hereinafter mentioned; that the said ‘The St. Louis Dispatch,’ a newspaper, was on the first day of June, A.D. 1877, a fully equipped journal, having a building under lease, all the machinery, type, presses, cases, forms, paper, furniture and tools useful or necessary for the printing and publishing of the same, a good circulation and advertising patronage, (known as its .good will,) and a share of stock, in the Western Associated Press, under which it was entitled to receive telegraphic news and dispatches collected from all parts of the world, as hereinafter more particularly set forth.”</p> <p>That on said first day of June the St. Louis Dispatch Company, by deed of trust in the nature of a mortgage, duly recorded, conveyed to Henry L. Sutton as trustee the following-described property: The machinery, type, presses, cases, furniture, paper, forms and tools, together with the good will of the St. Louis Dispatch Company and its franchises of every kind and description, rights, privileges, and propertjq including its interest in the Western Associated Press, and any and all shares by it owned in the Western Associated Press; as also all accounts and choses in action’ or other valuable things by it owned or to it belonging wherever situated; as “ also all other property of every other nature and character which the said party of the first part may acquire during the existence of this deed of trust; ” to secure the payment of a note, dated that day, to the order of Frank J. Bowman for the sum of $15,000, payable two years and six months after date, with interest at nine per cent- per annum, payable one and one-half per cent on the first days of August, October, December, February, April, and June of each year until the payment of the principal sum; which note so secured was negotiated for value, and complainant became the legal holder thereof for value before maturity.</p> <p>That at the time of the execution of said mortgage the-"Western Associated Press was a corporation organized under the laws of the State of Michigan, the sole purpose and object-of its existence being “ to procure intelligence for the newspaper press from all parts of the world, by telegraph, express,mail, or otherwise; and membership in said association was- and is limited generally and specifically to owners and proprietors of newspapers and publishers of periodicals.”</p> <p>That at that date and prior thereto the St. Louis Dispatch. Company was the legal owner on the books of the Western-Associated Press of one^share of stock, so called, in said association, (which was of great value,) represented by a certificate of membership, No. 38, which was upon the execution of the mortgage placed in the possession of the trustee with the following endorsement: “ The within certificate of stock is hereby assigned and transferred to Henry L. Sutton, trustee-, in deed of trust bearing date June 1st, 1877, for like purposes as other property therein named is transferred, being the certificate of stock in the Western Associated Press therein referred to.”</p> <p>The bill then stated that on February 2, 1878, the St. Louis Dispatch Company made a second mortgage, conveying all of the property described in the first, and other property subsequently acquired, to a trustee in trust to secure another loan made by it, which was duly recorded, and under which a sale of the property took place December 9, 1878, (the sale so-made being subject to the first mortgage,) one Arnold being-the purchaser, who on the same day transferred it to Joseph Pulitzer.</p> <p>That at the time of the sale, John A. Dillon was the owner and publisher of a certain newspaper known as the “ Evening Post,” and was printing and publishing the same in the city of St. Louis; that the Post was the rival and competing newspaper with the Dispatch; and did not, nor did Dillonj own a membership in the "Western Associated Press, nor any right to the telegraphic news-and dispatches thereof; that neither the Post nor Dillon, in the business of carrying on and publishing the Post, had any presses,.type, or paraphernalia for. the printing or publication of a newspaper; that the Post had’ not been established but a few months before the said sale of the Dispatch newspaper, and had nothing , of value, nor had the said Dillott, in connection with said publication, excepting a small circulation and advertising patronage and the name of the Post.</p> <p>That on December 10, 1878, the said Dillon and the,said Pulitzer consolidated the Post and the Dispatch, and on that day published a consolidated paper "under the name of the “ Post-Dispatch,” and that Dillon acquired whatever interest in the Dispatch property came to him with full notice of the lien of the first mortgage and subject thereto.</p> <p>It was further averred' that on December 11, 1878, the “ Dispatch Publishing Company ” was organized as a corporation under the laws of Missouri, the object of, which was the publication of a newspaper to be known and called the “ Post and Dispatch; ” that on that day, Pulitzer and Dillon, having consolidated the two papers, transferred the sáme to the Dispatch Publishing Company, which took the same subject to the mortgage on all the property of the “ St. Louis Dispatch’ Company,” and with full knowledge thereof; that thereupon, on the same day, the defendant,- the Dispatch Publishing Company, entered into the possession of the building theretofore occupied by the St. Louis Dispatch Company in the .publication of the St. Louis Dispatch, and of the good will of that newspaper, with the presses, type, etc., and all the rights, property, and franchises thereof, including the membership in the Western Associated Press represented then by certificate No. 38; that the Dispatch Publishing Company has ever since had the good will of. the Dispatch -Company, and the name “ Dispatch,” and used the same building formerly occupied by the St. Louis Dispatch Company. The bill further alleges that the Dispatch Publishing Company paid the interest on the Bowman note on the first days of February, April, June and October, 1879, but the remaining instalment, payable on December 1, 1879, being the date on which the principal became due, they refused to pay, as also the principal; that upon such refusal the trustee, Sutton, demanded of the Dispatch Publishing Company the property of the St. Louis Dispatch Company, including its good will and all the property recited in the first mortgage, which the Dispatch Publishing Company wholly refused to surrender. That at that time the Dispatch Publishing Company had alienated, destroyed, or gradually used up all the machinery, type, presses, and property of a, perishable nature of the St. Louis Dispatch Company.</p> <p>The bill also averred that the good will of the St. Louis Dispatch newspaper was its chief element of value; that the good will so acquired by the Dispatch Publishing Company, of the' St. Louis Dispatch Company, has been in the constant use and control of the first-named company, and has never been alienated; that the name of a newspaper is valuable and salable, and that the Dispatch Publishing Company acquired its name under the second mortgage, subject to the lien existing upon it, and still retains the name, “ Dispatch,” in the publication of its newspaper.</p> <p>That the machinery, presses, etc., acquired by the purchase under the second mortgage by the Dispatch Publishing Company, it continued to use for a long time, but substituted new'paraphernalia for publication from time to time, and that on the date of the maturity of the note the Dispatch Publishing Company had none of the original paraphernalia described in the first deed of mortgage; that the effect of the acquisition of the two properties known as the Evening Post and the St. Louis Dispatch was that the lien of the first mortgage attached to all the property of the Dispatch Publishing Company, and that the latter recognized the validity of the mortgage lien by paying the interest on the mortgage debt and the assessment on the membership in the Western Associated Press; that the complainant and the trustee Avere induced by its conduct to believe that the Dispatch Publishing Company would pay the debt or surrender' the property in case of a failure of compliance with the conditions of the trust deed; that the Dispatch Publishing Company continued to recognize the mortgage as a lien on said property, including the membership, up to the maturity of the note, when it refused to pay the same or surrender the property; that; for the reason that the good will and other property of the mortgagors Avas confused and intermingled with the property of the Dispatch Publishing Company so as to be incapable of separation or distinction therefrom, the property and good will of the latter ought in equity to be charged with the lien of the mortgage debt; and that at the time of. the acquisition of said mortgaged good will, etc., the Dispatch Publishing Company agreed and assumed to pay said debt.</p> <p>The bill further averred “ that a membership in the Western Associated Press is always represented by a certificate of a share of stock therein, and that under the by-ktws and constitution of said Western Associated Press, said membership is tenable and vendible only in connection with the publication of a newspaper or periodical, and in the manner laid down in the said constitution and by-laws Avhich are herewith filed and made a part of this complaint and marked Exhibits E & G-.” And further, “ that under the by-laws and articles of incorporation aforesaid, the legal title to said certificate of membership aforesaid could never Lave vested fully in any indiAddual, firm or corporation until, and after said individual, firm or corporation should have become the purchaser of the good will and property of said St. Louis Dispatch Company' and as successor in right and liability to said company; and if, after any sale Avhether of foreclosure or otherwise, the purchaser of said property did not continúe a publication in connection therewith, the said membership would become lifeless and valueless because a publication in connection with it was and is necessary to the sustenance of its life and value; that the said trustee and complainant herein haA e no rights in respect to said membership, except under said deed of-trust, and can acquire no title thereto until a sale of the good will of the St. Louis Dispatch Company, now in possession of the defendant Dispatch Publishing Company, at which time the title intended to be conveyed to the complainant herein by said deed-of trust would be effectuated to the purchaser of the good will and property of said St. Louis Dispatch Company.”</p> <p>That one year after the Dispatch Publishing Company had been in the use and enjoyment of the membership in -the "Western Associated Press, represented by certificate No. 38, it applied to the association for the issue of a new certificate, and the association issued to the Dispatch Publishing Company a new certificate, and placed the name of that company upon its books as. a member in virtue of the right acquired as successor to the St. Louis Dispatch Company, which membership was represented by certificate No. 64, but was the same membership as that represented by certificate No. -38; that the assessments on the membership had always been paid by the Dispatch Publishing Company; and that said company, by using the membership for one year, without applying for a new certificate or to have its name placed on the books of the "Western Associated Press as the successor of the St. Louis Dispatch Company, acknowledged the title of the latter.</p> <p>The prayer was that the Dispatch Publishing Company be decreed to pay the complainant $15,000, with' interest at the rate pf nine per cent per annum since October 1, 1879, and that, to make that sum, the good will of the Dispatch Publishing Company be sold; also the personal property used by it in connection with its business and certificate No. 64 in the "Western Associated Press. To this amended bill a demurrer was filed and sustained, and a final decree of dismissal rendered. Among other exhibits the by-laws of the "Western Associated. Press were filed with the bill and made a part thereof, and these provided, among other things, as follows:</p> <p>•• “L —Membership. Any proprietor of a daily newspaper who has heretofore signed the articles of association and is now an active member of the same, and his lawful assigns, and any. such person or firm or corporation within the territory of the Western Associated Press who shall hereafter be admitted in accordance with these by-laws, shall be a member of the association, provided that no new member shall be elected except upon the terms prescribed by Article XV.</p> <p>“II. — Stock. The evidence of membership shall consist-of a certificate of one share of the capital stock of the association, which certificate shall be transferable only on the books of the association as hereinafter provided.”</p> <p>“XII. — Transfers. Any member selling or transferring his newspaper may transfer his certificate of sfock to the purchaser or successor in the ownership of such newspaper, and it shall be the duty of the secretary, upon request, to-transfer the same on the books of the association to such purchaser or successor, who shall then sign the articles of association and by-laws and become a member, with the same •rights and privileges as the original member. If any member shall discontinue the publication of a newspaper, or shall sell his newspaper to another member, his membership shall cease,' and his certificate of stock shall be cancelled on the books of. the association, and the treasurer shall refund to him the money paid to the association for the same.”</p> <p>“ XIV. — Assessments. The board of directors shall have power to make assessments upon the members to defray the expenses incurred in collecting and transmitting intelligence, and for other purposes not inconsistent with the charter and by-laws, and the board may discontinue the use of the news so collected to any member failing' to pay promptly his assessment. Any member to whom the use of the news has been so discontinued may be readmitted to the use of the same, within six months of the time of such discontinuance, upon his refunding to the other members of the association in the same city or town such increased assessment as they may have paid in consequence of said discontinuance.</p> <p>“ XV. — Admission of New Members. Applications for membership in this association shall be made in writing- to the board of directors, and if a majority of said board shall vote for the admission of the applicant, he shall sign the articles of association and by-laws, and pay into the treasury the sum of ten dollars or an additional amount equal to what would be his pro rata share in the property of the association. It shall then be the duty of the secretary to issue to him a certificate of one share of stock, and to enroll his name in the list of membership: Provided, That no-new members shall be admitted without the unanimous consent of the members in the city or town where his business is carried on.”</p> <p>The opinion of the court, by Judge Thayer, will be found reported in 36 Fed. Rep. 722.</p> <p>From thé decree dismissing the bill an appeal was taken to this court, and while pending here a stipulation was filed setting forth the dissolution by decree of court of the Dispatch Publishing Company and the successorship thereto of the Pulitzer-Publishing Company, as the owner and publisher of the newspaper and of the membership in the Western Associated Press, which had issued to said company a certificate April 2, 1892, numbered 93. The appearance of the new corporation and of two directors of the dissolved, company as parties defendant was entered.</p>

E. 0. Cates, D. Andrews and L. L. Cates, as individuals; and as composing the firms of Luke Cates & Company and Andrews, Cates & Company, made their deed of assignment for the benefit of creditors, December 7, 1886,. whereby they conveyed their property to assignees therein mentioned to be converted into money and applied to the payment of their debts, certain creditors being preferred.

This was a bill in equity, filed September 9, 1887, and amended January 7, 1888, in the Circuit Court of the United States for the District of Minnesota, by Henry H. Porter and Eansom E. Cable, citizens of Illinois, and stockholders in the Northwestern Manufacturing and Car Company, a corporation of Minnesota, in behalf of themselves and of all other stockholders in that corporation, against Dwight M. Sabin, its former president, and Joseph C. O’Gorman, its former auditor…

of the case, that “ where the complaint shows a substantial cause of action, and no objection was interposed to it in the primary court, a misjoinder of causes of… Held: that a partnership creditor may sue one of the members of the firm, for a debt contracted in the partnership name, whether by account or otherwise, and declare upon the demand as his individual liability; ” citing Code of 1886, § 2605; Duramus v. Harrison, 26 Alabama, 326; Hall v. Cook, 69 Alabama, 87.

Held: that in the absence of proof of actual fraud on the part of 3?. the mere fact that he had accepted the office of public administrator, did not impose upon him the duty of causing the mortgage referred to to be rein-scribed, and further, the notes secured by the mortgage having become prescribed by lapse of time sixteen months before his acceptance of the office, such acceptance did not place him in any fiduciary…

The firm of John Wánamaker brought an action in the; Court of Common Pleas of Philadelphia, State of Pennsylvania, against John Cadwalader, the collector of customs, for that district, wherein it was sought to recover from the-defendant moneys paid under protest by the plaintiffs to the-defendant as collector of customs, as duties, in order to obtain possession of merchandise imported for the plaintiffs, which moneys were demanded and collected by defendant in excess-of the…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The case is stated in the opinion.</p>

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>This was a bill in equity for the infringement oi letters patent No. 301,720, issued July 8, 1884, to the plaintiff Ide, for a steam-engine governor. Another patent, No. 308,498, issued to the same party, November 25,' 1884, was originally embraced in the bill, but upon the trial in the court below the charge relative to this patent was not pressed, and the case was rested wholly upon No. 301,720.</p> <p>“ This invention,” said the patentee, in his specification, “ relates to that. class of steam-engine governors known as * flywheel governors,’ and has for its primary object to provide means for holding the eccentric steadily in its proper poised position, in opposition' to the tendency of certain extraneous forces which are calculated to disturb the movements of the valve as sought to be determined by the balanced .forces of weights and springs when the engine is in motion.”</p> <p>“ To this end the invention consists in the combination of a dash-pot with the governor and pulley, said' dash-pot connected with a fixed and a movable part, or with two relatively or unequally movable parts — as, for example,- with the extremity of a weight-lever and the pulley-hub. In this class of governors the position of the eccentric is variably determined by the opposing and self-balancing forces exerted by the centripetally-acting spring or springs and the centrifugally-acting weight or weights cpnnected with said springs, the tendency being to hold the eccentric permanently in a certain poised position for a given speed of the wheel to-winch the governor is'applied, and to vary the position of the eccentric exactly as the speed of said wheel is varied. There are, however, certain temporarily-acting causes of disturbance' calculated to change the position of the. eccentric independently of the speed of .the wheel. ... . At a regular and very high speed of the governor wheel or pulley these disturbing forces operate but slightly, owing to the momentum of the weights, which serve to prevent their deflection from a regular course, but at lower speeds than that at which the apparatus is- adjusted to run, and particularly in decelerating or retarding the engine, as in starting up or slowing down, these incidental disturbing forces interfere materially with the valve action and give an objectionable irregularity to the movements of the weights. In the case of an engine used for running a dynamo for electric lighting purpose, and subject to sudden and wide changes in requisitions of power and speed, the effects of the disturbances referred to manifest themselves also in the quality or intensity of the lights. A dash-pot constructed and attached to the apparatus in such a manner as to prevent sudden' movements of the weight-levers or of the eccentric is found in practice to wholly overcome the defects indicated and to give a desirable steadiness and regularity to the movements of the movable parts-of the governor as well as accuracy and reliability to the cut-off action of the valve.”</p> <p>After giving a description of the device by reference to the drawings, the patentee added: “ The cylinder of the dash-pot is filled with glycerine or some other non-compressible liquid, preferably one that is also not congealable at a temperature to which the engine is likely to be exposed. By means of the dash-pot applied to the relatively movable and stationary parts or to’ the unequally-moving parts, as described, wide and sudden radial movements of the weights, E', are prevented, and as a consequence the governor will have, a steady and efficient action at all speeds of the pulley or wheel to which said governor is applied. . . . The dash¡-pot, while preferably connected with the end of the lever E, may obviously be attached to the eccentric itself, and to a fixed or less movable part of the apparatus.”</p> <p>The single claim of the patent was as follows: “In a flywheel governor, the combination with relatively-moving parts, of a dash-pot, substantially as described.”</p> <p>The defendants set up in their answer the invalidity of the patent by reason of prior use, and also non-infringement. Upon a hearing in the court below upoii pleadings and proofs the bill was dismissed upon the ground of want of novelty, 39 Fed. Bep. 548, and plaintiff appealed to this court.</p>

This was a bill in equity for the infringement of letters patent No. 283,057, issued August 14, 1883, to Frank E. Aldrich, for an improvement in rubber cloths or fabrics.

■' Thís-wús a bill in equity by the firm of J. & P. Coats, of Paisley, Scotland, to enjoin the defendants, the Merrick Thread Company, a Massachusetts corporation, and Herbert F. Palmer, its managing agent in New York, from infringing plaintiffs’ trade-márk, and unfairly competing with them, by simulating certain labels and symbols used by the plaintiffs upon the ends of wooden spools upon which sewing thread is wound.

On May 27, 1886, the appellee, plaintiff below, made a proposition to defendant to, construct on its premises a blast furnace for the sum of $124,000; $80,000 to be paid on monthly.estimates as the work, progressedthe balance to be secured, “ said security to be either a mechanics’ lien or first mortgage on all the furnace company’s interests in Sheffield, : . at my option.” This' proposition was accepted on June 2. The work was completed and accepted on April 24, 1888.

<p>ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.</p> <p>The case is stated in the opinion. .</p> <p>On motion to. dismiss or affirm.</p>

<p>The word “liquors” is frequently, if not generally, used to define spirits or distilled beverages, in contradistinction to those that are fermented. It is so used in Schedule H of the tariff act of March 3,1883, 22 Stat. 505, c. 121. The word “ liquors ” as used in that section is obviously the result of misspelling, “ liqueurs ” being intended.</p> <p>The multitude of articles upon which duty was imposed by the tariff act of 1883, are grouped in that act under fourteen schedules, each with a different title, and all that was intended by those titles was a general suggestion as to the character of the articles within the particular schedule, .anjd not any technically accurate definition of them.</p> <p>Generally speaking, a “ sound price” implies a sound article. It appearing that the cost of the beer in question at the place of export, was equivalent to 17-¿{'a cents per gallon, and that upon being examined in New York much of it was thrown into the streets as worthless, that but little of it was sold, and that .for three cents per gallon, it may be assumed that it was a sound article when shipped at the place of export.</p>

Held: that the United States upon the adoption of the Constitution acquired the. paramount right to the use of this submerged land for a light-house, without making any compensation therefor; and that any title or right conferred on the plaintiff by the subsequent statute of the State was-necessarily subject to this paramount right of the United States.

The facts in this case are these: On November 10, 1884,. plaintiff, now plaintiff in error, filed in the Circuit Court of the-United States for the District of Nebraska an “amended and reformed petition.” 'Nothing seems to have been done thereafter until 1887, when at the May term, and on thé second day of May, the case was “ ordered continued.” On August. 18, 1887, the record recites: “ On motion of defendants, leave is granted by the court to-answer herein in ten days.

Held: and to violate the law which that jurisdiction is appointed to administer ; that any person, not a party to the suit .or judgment, whose property has been wrongfully, but under color- of process, taken and withheld, may prosecute, by ancillary proceedings, in the court whence the process issued, his remedy for restitution of the property or its proceeds while remaining in the control of that court, but that all…

Held: That the paper given by M. to S. in 1869 was an absolute and unqualified declaration of trust, for the amount of the subscription so far as it had been paid; (2) That one essential to an estoppel by judgment is identity of cause of action, and that an examination of the pleadings and proceedings in the case in Massachusetts showed that the cause of action there ,was not identical with the cause of action here; <(3)…

<p>ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.</p> <p>This was a motion to dismiss. The case- is stated in the opinion.</p>

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.</p> <p>This was a motion to dismiss. The case is stated in. the opinion.</p>

This was an action of- ejectment bnought, by "W. B. Carr against John Quigley for the possession of one hundred and sixty acres of land situated in the county of Alameda, State of California.

This was a bill in equity filed by the United States in the Circuit Court of the United States for the Northern District of California, July 23,1883, against Henry Curther and others, patentees of the State of California, for the purpose of haying certain listings, of indemnity school lands, situated in that State in township three south, range three east, and in township two south, range one east, set aside and cancelled and the lands decreed to he held subject to the grant…

This was an action at law by the firm ,of Goodridge & Marfell, coal merchants, carrying on the business of mining coal at Erie, Colorado, and of selling the same at Denver, against the Union Pacific Railway' Company, to recover triple damages, under a statute of Colorado, for an alleged unjust discrimination in freights upon coal from Erie to Denver.

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

Fong Yue Ting v. United States, 149 U.S. 698 (1893), decided by the United States Supreme Court on May 15, 1893, was a case challenging provisions in Section 6 of the Geary Act of 1892 that extended and amended the Chinese Exclusion Act of 1882. The provisions in question required Chinese in the United States to obtain certificates of residency and allowed for the arrest and the deportation of Chinese who had failed to obtain these certificates, even if they had not violated any other laws. The case involved writs of habeas corpus from Fong Yue Ting and two other Chinese citizens residing in New York City who were arrested and detained for not having certificates.