Volume 155 — United States Reports

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p>

Held: that he was estopped from proceeding in equity, to set aside the sale on the ground that the attorney had no authority to appear for him, and that this estoppel was not affected by the fact that, before filing his bill in equity in the Circuit Court, he withdrew his pleading in the state court, and filed instead thereof a demurrer which was sustained.

<p>A finding of fact by the Court of Claims, where there is nothing in the other findings or elsewhere in the record which authorizes this court to go behind that finding and conclude that there was error in respect thereof, will not be reviewed here.</p>

This was a bill in equity for an injunction and the recovery of damages for infringement of letters patent No. 144,818, issued November 18, 1873, to the plaintiff Wright, for an improvement in frames for horizontal engines.

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

This was an action originally begun in the District Court of the First Judicial District of Arizona upon 2250 coupons attached to 150 bonds, issued by the defendant county July 1, 1883, and payable to the Arizona Narrow Gauge Eailroad Company or bearer.

<p>A suit in equity for the partition of land, wherein the plaintiff avers that he is seized as tenant in common of an estate in' fee simple, and is in actual possession of the land described, and, after setting forth the interests of the other tenants in common, and alleging that no remedy at law exists to enable him to obtain his share of said lands in kind, or of the proceeds if sold, and that he is wholly without remedy except in chancery, prays for the partition of the land, and the segregation of his own share from that of the others, and incidentally that certain deeds may be construed and, if invalid, may be cancelled, and that he may recover his advances for taxes and expenses, is. clearly a bill to enforce a claim and settle the title to real estate; and as such is a suit covered by § 8 of the act of March 3, 1875, c. 137, 18 Stat. 4-70, 472, of which the Circuit Court of the district where the land lies may properly assume jurisdiction.</p> <p>The questions that, the title of some of the parties to the land being in dispute, such titles must be settled before partition could be made; that the interests of several of the defendants were adverse to each other; and that as some of these defendants were citizens of the same State, it would raise controversies beyond the jurisdiction of the Circuit Court to decide, not having been certified to this couit, are not passed uport.</p> <p>Where the laws of a State give a remedy in equity, that remedy will be enforced in Federal courts in the State, if it does not infringe upon the constitutional right of the parties to a trial by jury.</p> <p>The objection that A. was alleged in the bill to be a resident and citizen of the District of Columbia was met by an amended allegation that A. was “ a citizen of South Carolina, now residing in Washington city, District of Columbia; ” and while this allegation was traversed, it must, for the purpose of this hearing, be taken as true.</p>

Motion to dismiss for want, of jurisdiction. The case was as follows: On March 3,1891, an act of Congress was approved, entitled “ An act to establish a Court of Private Land Claims, and to provide for the settlement of private land claims in certain States and Territories.” 26 Stat. 854, c. 539.

Motion to dismiss or affirm. The court stated the case as follows : A. F. Sipperley and H. S. Lee, composing a partnership under the firm name of A. F. Sipperley & Co., doing business in the city of Salt Lake, Utah, made an assignment of their partnership property to one Boss in trust to convert the same into money and pay creditors in the order named, first, M. J. Gray and the Union Bank of Greeley, Colorado, in full; second, Mrs. A. F. Sipperley, Mrs. E. J. Walling, and II.

<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>

Held: that, without considering the merits of- the question discussed, the judgment of the court below should be affirmed. Certain citizens of Minnesota were the owners, of a lot and building in Walsh County, North Dakota, which they had leased and which were occupied under their lessee.

Held: and still holds, the legal title to said land in fee simple as successor in title of said John M.

Held: for reasons therein given, that we had no jurisdiction, the circum-. stance became unimportant.

On May 13, 1893, the grand jury of the United States for the Western Division of the Eastern District of Arkansas presented an indictment against Horace G. Allis under section 5209 of the Kevised Statutes.

<p>It is a general rule tliat provisions in statutes imposing taxation, though not in terms mandatory, are to be regarded as such if necessary for the substantial protection of the taxpayer.</p> <p>The customs laws, however, give to the complaining importer an ample remedy, only putting him to the inconvenience of seeking it in a legal tribunal.</p> <p>In an action to recover duties alleged to have been illegally exacted, the burden is on the importer to overcome the presumption of a legal collection by proof that their exaction was unlawful.</p> <p>Although the appraisement of goods by customs officers is not ordinarily open to judicial review, that rule does not apply when the value is determined by a classification made by the officer.</p> <p>The provision in Schedule F, of the act of March 3, 1883, c. 121, 22 Stat. 488, 603, imposing a duty upon leaf tobacco, evidently requires that 85 per cent of half leaves are to be of the requisite size and necessary fineness of texture for wrappers,' or, in other words, that each of 85 half leaves out of 100 half leaves must contain a portion suiBciently fine in texture, of the requisite size to make at least one wrapper.</p> <p>The further provision in that schedule, “ of which more than 100 leaves are required to weigh a pound,” refers to whole leaves, in their natural state.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.</p> <p>Motion to dismiss. The case is stated in the opinion.</p>

<p>Error to- the Supreme Court .of the State of Washington.</p>

Held: could not be done. The object of the original Tilton invention was declared to be to provide carriages or other vehicles with springs to prevent the rocking motion 'of the body supported thereon, and it was stated in the specification : “ It is well known that elliptic or semi-elliptic springs secured to the centre of the cross-bar of the carriage body will permit the same to rock from side to side.

This was a bill in equity, filed in the Circuit Court of the United States for the Northern District of Illinois by the Keokuk and Hamilton Bridge Company (hereinafter called the Bridge Company) against the Pittsburgh, Cincinnati and St. Louis Railway Company (hereinafter called the Pittsburgh Company) and the Pennsylvania Railroad Company, to recover deficiencies in tolls for the use of the plaintiff’s bridge since March 1, 1883, under a contract, dated January 19, 1869,…

Schillinger v. United States, 155 U.S. 163 (1894), is a decision of the United States Supreme Court, holding (7–2, per Justice Brewer) that a suit for patent infringement cannot be entertained against the United States, because patent infringement is a tort and the United States has not waived sovereign immunity for intentional torts.

This was a claim by the Shawnee tribe of Indians under a special act of Congress passed October 1,' 1890, c. 1219, 26 Stat. 636, conferring jurisdiction upon the Court of Claims, subject to an appeal to this court, to hear and determine the just rights in law or in equity of the Shawnee and Delaware Indians under certain treaties with the government.

Held: a trust for governmental purposes and to promote the general welfare.”

<p>A stipulation on the part of the Cherokees in an agreement made by them with the Shawnees under authority of the act of October 1, 1890, c. 1249, 26 Stat.' 636, that the Shawnees in consideration of certain payments by them, etc., “ shall be incorporated into and ever after remain a part of the Cherokee Nation on equal terms in every respect and with all the privileges andimmunities of native citizens of said Cherokee Nation,” secured to the Shawnees equal rights with the Cherokees in that which was the common property of the Cherokee Nation, namely, the reservation and the outlet as well as all profits and proceeds thereof.</p> <p>Without an appeal taken, a party ivül n°t be heard in an appellate court to question the correctness of the decree in the trial court.</p>

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

<p>ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.</p> <p>Hattie A. Matthews held the demand note of E. L. Harper for §5000, on which the interest had been paid to January 1, 1882. June 21, 1887, Harper was the owner of some shares of stock in the Fidelity Building, Savings and Loan Company of Newport, Kentucky, worth about §5000, which he, being insolvent, transferred on the morning of that «day to Miss Matthews in part payment of the debt, by blank indorsement in the building company’s book. Afterward the name of J. H. Otten was inserted as a proper person to obtain the money, and for this reason he was made a party to these proceedings, though having no real interest therein. A few hours after the transfer, Harper made an assignment of all his property for the benefit of his creditors under the insolvent laws of Ohio, and, the person named as assignee failing to qualify, H. P. Lloyd, the present plaintiff in error, was appointed, by the proper court, such assignee. Certain creditors of Harper brought suit in the chancery court of Campbell County, Kentucky, on their several debts and attached the stock as the property of Harper. These cases were consolidated, and while they were pending, September 16, 1887, Miss Matthews and Otten filed their joint petition to be made parties defendant, which was done. They alleged the ownership by Harper of the stock; the transfer by indorsement in the book, which was made an exhibit; that Miss Matthews was a creditor of Harper to an amount equal to the face value of the stock; that the transfer of the stock was made some hours before the execution of the deed of assignment-by Harper; and was hona fide and for a .valuable consideration, and passed all Harper’s interest; that Harper was a citizen and resident of the State of Ohio at the time of the assignment and theretofore; that “ by the laws in existence at that time in said State of Ohio, debtors had the right to make preferences in the payment of their creditors either in the deed of assignment or by paying them therefor in such a way as they saw proper;” that Lloyd had been made a party as assignee, and w^s claiming 'the stock as part of Harper’s estate, while the plaintiffs in the consolidated cases asserted their claims under the attachments; and praying that the stock be adjudged to Miss MattheAvs. January 14, 1888, Miss MattheAvs and Otten filed a joint amended ansAver, attaching the note as an exhibit, and making this and their former petition a cross-petition. On the same day Lloyd, assignee, filed a reply to the ansAver and an answer to the cross-petition. This pleading contained five paragraphs... The first denied that Harper oAved Miss Matthews anything at the time the stock-Avas assigned; admitted that at the time of the execution of the assignment Harper and Miss MattheAvs were both citizens and residents of the ■State of Ohio; denied “ that at the time of making said assignment debtors had by the laAvs of the State of Ohio the right to prefer their creditors in the deed of assignment.” The second paragraph asserted that the transfer and conveyance of the stock to Otten by Harper was made for the purpose and Avith the intent to defraud the creditors of Harper of their just and lawful debts, and that such transfer and assignment was fraudulent and void under and by virtue of section 4196 of the Revised Statutes of the State of Ohio, which provided as folloAvs, to wit:</p> <p>“Every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution made or obtained with intent to defraud creditors of their just and laAvful debts or damages, or to defraud or to deceive the person or persons purchasing such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”</p> <p>The third paragraph denied any consideration for the transfer. The fourth alleged the transfer to be fraudulent and done with intent to hinder and delay Harper’s creditors. The fifth averred that the transfer Avas made by,Harper Avith the intent to prefer Miss Matthews, if she Avas a creditor, Avhich defendant denied, over his other creditors, and was void under section 6343 of the Revised Statutes of the State of Ohio, which read as follows :</p> <p>“All assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in proportion to the amount of their respective claims, and the trusts arising under the same shall be administered in conformity with the provisions of this chapter.”</p> <p>On May 18, 1888, Miss Matthews filed reply to the original answer and cross-petition of Lloyd, trustee, as follows :</p> <p>“ The defendant Hattie A. Matthews for reply to answer and cross-petition of H. P. Lloyd says she admits E. L. Harper was insolvent when, he assigned the building association stock to her.</p> <p>“ She admits that he assigned the stock to her with the intention to prefer her to the exclusion of the creditors, but, as was stated in her original pleadings, this was allowable under the laws of Ohio.</p> <p>“ She denies that under the provisions of the laws which are set out in said pleading of Lloyd, to which this is a reply, that there is anything which invalidates the transfer of the stock to this defendant, the same involved in the case.</p> <p>“ Wherefore the defendant prays as in her original pleadings and for general relief.”</p> <p>The chancery court rendered judgment in favor of Lloyd, trustee, for the full value of the stock, amounting as a money demand against the building association to the sum of $4914.89, and Miss Matthews and Otten appealed to the Court of Appeals of the State of Kentucky, which reversed the judgment of the chancery court and remanded- the cause, with directions to render judgment in favor of Miss Matthews in conformity to the opinion. Matthews v. Lloyd, 89 Kentucky, 625.</p> <p>To review this'judgment a writ of error from this court was allowed.</p>

Held: that this established the familiarity required by the statute, and placed his qualifications as an expert beyond reasonable doubt.

This was an action brought by Frederick W. Muser, Richard Muser, and Curt Muser, composing the firm of Muser Brothers, against the collector of the port of New York, to recover duties alleged to have been illegally exacted of them on certain importations of cotton embroideries, manufactured at St. Gall, Switzerland, where they had a branch house.

<p>This court will not reversa the conclusions of the master, sustained by the court below, upon the extent of the infringement of a patent, when the evidence is conflicting, unless some obvious error or mistake is pointed out.</p> <p>Where a patent is for a particular part of an existing machine, it is necessary, in order to establish a claim for substantial damages for infringement, to show what portion of the profits is due to the particular invention secured by the patent in suit ; but when the patented invention is for a new article of manufacture, the patentee is entitled to damages arising from the manufacture and sale of the entire article.</p> <p>The defendants not having set up in the court below a claim for an allowance of manufacturer’s profits, or offered evidence by which it could be estimated, there is no foundation on which to base such a claim in this court.</p>

In the District Court of the United States for the Western District of Arkansas, on November 23,1893, a jury was sworn to try the issue formed between the United States and Thomas Thompson, under an indictment wherein said Thompson was charged with the murder of one Charles Hermes, and to which the accused pleaded not guilty.

This was a suit commenced by the appellant, a citizen of the State of Massachusetts-, in the Circuit Court of the United States for the District of South Carolina, to recover the possession of certain bonds. The defendants were the township of Cane Creek, Lancaster County, South Carolina, a citizón of that State, and the Boston Safe Deposit and Trust Company, a corporation created by and a citizen of the State of Massachusetts, the State of which the plaintiff was a citizen.

Held: do not affect the validity of a subsequent patent. Corn Planter Patent, 23 Wall. 181 , 211; Coffin v. Ogden, 18 Wall. 120 , 124.

In pursuance of an act of Congress making an appropriation for that purpose, an advertisement appeared August 6, 1892, inviting proposals for doing certain work in Gowanus Bay, New York. The work was divided into three parts, as follows.: first for Bay Ridge Channel; second, for Red Hook Channel; and third, for Gowanus Creek Channel.

Held: that this decision did not deny to P. any right secured to him by the Constitution and laws of the United States, and did not erroneously dispose of a Pederal question. Motion to dismiss or affirm. The case is stated in the opinion. Mr. William L. Martin, Attorney General of the State of Alabama, for the motion. No one opposing. Mr. Chiee

Held: '(1) That the plaintiff had no adequate remedy at law, and the Circuit Court consequently had jurisdiction in equity; (2) That if no action in ejectment had been begun at law, the long continued adverse possession of the plaintiff, and the equitable title set up in the bill would have been a sufficient basis for the maintenance of the suit; (3) That, where title to real property is concerned, equity has a concurrent…

Held: there was evidence which justified the court in submitting the question of the exclusive possession by the trustees to the jury, and that there was no error in instructing the jury that in order to acquit the company from responsibility, it should be shown that the management and operation of the road was conducted by the trustees, to the entire exclusion of the company, its officers and board of directors, and that…

Held: That § 1 grants nothing to and withdraws nothing from the parties; (.2) That the provision in § 2 as to the rights of the Portage Lake Canal Company and the Ontonagon and Brule River Railroad Company means simply that' neither forfeiture nor confirmation nor any other provision in the act shall be construed as a final settlement of all the claims of those companies or their grantees; (3) That the provision in § 2 as…

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

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

Held: that he was not entitled to recover. The appellee sued in the court below to recover certain fees and clerk hire which he claimed to be due for services rendered as shipping commissioner at the port of Mobile from June 18, 1889, to February, 1890. The claim was for $1607 and costs.

<p>When the transcript of the record does not show that the Circuit Court had jurisdiction of a suit, where jurisdiction depends upon citizenship, and counsel, upon their attention being called to the matter, furnish nothing of record to supply the defect, the judgment must be reversed at the costs of the plaintiff in error, and the cause remanded to the Circuit Court for further proceedings.</p>

This was an action brought by John Hill, A. B. Wild, S. B. Curtis and Samuel Summers, in the District Court of Cochise County, against H. C. Herrick and others, including the Boston Mining and Reduction Company, to establish plaintiff’s alleged prior right to the use of the waters of the San Pedro River for irrigation purposes, and to restrain defendants in respect thereof.

No number. Receivers of the Philadelphia and Reading Railroad and Philadelphia and Reading Coal and Iron Companies were appointed February 20,1S93, by the Circuit Court for the Eastern District of Pennsylvania, upon a bill for foreclosure filed by a holder of third preference income bonds of those companies. • Leave was subsequently granted the receivers to issue certificates for the purpose of paying wages and other preferred claims.

Held: and such publication shall be taken to be notice to all the world of the contents of the complaint filed as aforesaid, and of the proceedings had under it.” • “Sec. 5.

Motion to dismiss. This cause, after trial below, was argued before the Supreme Court of Missouri, Division No. 2, in banc. The organization of that court is set forth in the statement of facts in Duncan v. Missouri, 152 U. S. 377. After the court had given its opinion and announced its judgment, the plaintiffs in error for the first time raised a Federal question in the cause in a motion for a rehearing.

Held: the Chief Justice delivering the opinion, that the Captured and Abandoned Property Act did not confiscate, or in any case absolutely divest, the property of the original owner, even though disloyal, and that by the seizure the government constituted itself a trustee for those who were entitled or whom it should thereafter-wards recognize as entitled; that persons who had faithfully accepted the provisions offered by…

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

<p>ERROR TO THE CIRCUIT COURT OB THE UNITED STATES BOR THE DISTRICT OB MASSACHUSETTS.</p> <p>By section 5208 of the Bevised Statutes it is provided that “ it shall be unlawful for any officer, clerk, or agent of any national banking association to certify any cheque drawn upon the association unless the person or company drawing the cheque has on deposit with the association, at the time such-cheque is certified, an amount of money equal to the amount specified in such cheque.”</p> <p>No penalty was imposed on the individual for a violation of this section. But on July 12, 1882, c. 290, 22 Stat. 162, 166, it was enacted :</p> <p>“ Sec. 13. That any officer, clerk, or agent of any national banking association who shall wilfully violate the provisions of an act entitled ‘ An act in reference to certifying cheques by national banks,’ approved March third, eighteen hundred and sixty-nine, being section fifty-two hundred and eight of the Bevised Statutes of the United States, or who shall resort to any device, or receive any fictitious obligation, direct or collateral, in order to evade the provisions thereof, or who shall certify cheques before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association, shall be deemed guilty of a misdemeanor, and shall,” etc.</p> <p>In May, 1892, the defendant was indicted in the Circuit Court of the United States for the District of Massachusetts for a violation of these sections. The indictment contained eighty-eight counts. By demurrer and nolle the last forty-eight counts were disposed of before the trial, which proceeded upon the first forty. In these forty counts .the unlawful certification of five cheques was charged, the first eight counts relating to one cheque, the next eight to another, and so on. The case came on for trial in February, 1893, and resulted in a verdict of guilty on fifteen counts, three in respect to the certification of each cheque. A motion for a new trial having been overruled, the defendant was sentenced to pay a fine of $1000, and to be imprisoned in jail for the term of sixty days. To reverse this judgment the defendant brought this writ of error.</p> <p>The third count in the indictment, which was one of those upon which the defendant was found guilty, after stating time and venue, and that the defendant was president of the Maverick National Bank and authorized to lawfully certify cheques, charged “that said Potter as such president as aforesaid did then and there, to wit, on said twentydhird day of July, at Boston aforesaid, within said district and within the jurisdiction of this court, unlawfully, knowingly, and wilfully certify a certain cheque, which said cheque was then and there drawn upon said association for the amount of twenty-four hundred and fifty dollars by certain persons, to wit, Irving A. Evans, Austin B. Tobey, and William S. Bliss, copartners, then and there doing business under the firm name and style of Irving A. Evans and Company, and which said cheque was then and there of the tenor following — that is to say:</p> <p>a as > H.o <jO 60'S E</p> <p>‘ Boston, Jul- 23, 1891. $2450. No. 54493.</p> <p>Maverick National Bank.</p> <p>Pay to the order of Hayward & Townsend 12450, twenty-four hundred & fifty dollars.</p> <p>Irving A. Evans & C-.’</p> <p>by then and there writing, placing, and putting in and upon and across the face of said cheque the words and figures following — that is to say :</p> <p>‘ Maverick National Bank.</p> <p>Certified Jul- 23, 1891.</p> <p>Pay only through clearing-house.</p> <p>A. P. Potter, P.’</p> <p>(meaning said Asa P. Potter, such president as aforesaid). ‘--, Paying Teller that the said persons, as copartners under the firm name and style as aforesaid, by whom said cheque was then and there drawn as aforesaid, did not then and there, to wit, at the time said cheque was so certified by said Potter as aforesaid, have on deposit with said association an amount of money then and there equal to the amount then and there specified in said cheque, to wit, the amount of twenty-four hundred and fifty dollars in money, as he, the said Potter, then and there well knew, against the peace and dignity of the said United States and contrary to the form of the statute in such case made and provided.”</p> <p>All the counts upon which the defendant was found guilty, both in respect to this and the other cheques, were, so far as any question is involved in this case, substantially like the one quoted.</p> <p>On the trial the books of the bank were presented, showing that at the time these five cheques were certified the account of Evans & Co. was overdrawn in a large sum — between $100,000 and $200,000. There was testimony tending to show that upon each day that these cheques were certified, and prior thereto, Evans & Co. deposited in cash an amount more than sufficient to cover the certifications. Thereupon, as the bill of exceptions shows —</p> <p>“ The defence called the defendant, Mr. Potter, and offered to prove by him an oral agreement between I. A. Evans & Co. and the Maverick National Bank, in the early part of 1891, before June or July, 1891, that Evans <fc Co. might have a loan by overdraft limited to $200,000, with interest to be charged daily at the rate of six per cent, against which collateral was to be put up, and further to show that the overdrafts existing in June and July, 1891, were under this agreement, and that collateral was actually deposited and kept against it in the hands of the assistant cashier; that this agreement was communicated to the executive officers of the bank and to a majority of the directors of the bank, who approved it, and this offer was made in connection with the facts that appear in evidence in relation to the books of the bank; also the defence offered another conversation between Mr. Potter and Mr. Evans in relation to the matter of certification of cheques and deposits connected with this certification, in which Mr. Evans called his attention to the fact that a cheque had been refused certification, and Mr. Potter told Mr. Evans that it was undoubtedly because he had no deposit there. Whereupon Mr. Evans said, ‘ But I have a loan, as I understand it;’ to which Mr. Potter replied substantially, ‘We cannot certify cheques against a loan; if you are going to have certified cheques you must have deposits in the bank to certify them against; ’ and that from that time forward the deposits were in, to Mr. Potter’s knowledge, from day to day after this conversation with Mr. Evans, in which the defence claims.that the parties to the conversation understood distinctly that the daily deposits were to be in for the very purpose of certifying cheques.</p> <p>“This whole offer was made by the defence as material matter of substantive defence, as a part of the res gestee and of the transaction, and as specifically bearing upon the question of criminal intent upon the part of the defendant. The facts ‘ that appear in evidence in relation to the books of the bank,’ as referred to in the'above offer and in connection with which the offer is made, are heretofore fully stated in this bill of exceptions.”</p> <p>And in pursuance of this offer the defendant asked the witness certain questions, for the purpose of showing a state of facts, as indicated in the offer, but the testimony was rejected, the court saying, in response to an inquiry of counsel as to whether “ a definite agreement ” was ruled out —</p> <p>“ Yes, sir ; I rule out anything that does not appear on the books of the bank in connection with this deposit. I think what was on deposit and not on deposit as the case now stands must be determined by what appears on the books of the bank — as this case now stands.— and the papers of the bank.”</p> <p>Exceptions were duly taken to the action of the court in this respect.</p> <p>Among other instructions to the jury was the following:</p> <p>“But, upon some reflection, I have come to the conclusion that notwithstanding Evans & Co. may have been overdrawn on the morning of any particular day and during the whole of that day, yet if the bank didin fact receive a special deposit and set aside certain cheques or other moneys and hold them for the purpose of covering the certified cheques, that it would not be any violation of the letter or policy of the statute and would be a defence. But I must say, gentlemen, that I am unable to see in this case any evidence that anything of that sort was done. I am unable to see in the case any evidence — I do not mean to say evidence of what was intended or agreed to be done, which is not essential to this case, but any evidence that as a matter of fact any of these cheques deposited by Evans & Co. did not go into the general deposit account and were not absorbed the instant they passed into the bank. Upon this branch of the case I instruct you the burden of proof is on the defence — not proof beyond a reasonable doubt, but to satisfy you by a preponderance of evidence. If the defence does satisfy you by the preponderance of evidence that there was a segregation in fact appearing upon or shown from the books and papers of the bank ■ — • a segregation, a setting apart of certain deposits sufficient to cover the certified cheques and against which the cheques were certified — it is a defence in this case.”</p> <p>To the giving of which- instruction the defendant at the time duly excepted.</p>

<p>APPEALS 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>

Held: by the court that the statute of New Jersey was-not repugnant to the clause of the Constitution empowering Congress to regulate commerce among the States, but that the package there in question, and which had been brought from Indiana, became, on its delivery in Jersey City, subject to the laws óf New Jersey relating generally to articles of that nature. .

This was an action brought November 4, 1892, in the circuit court of Montgomery County in the State of Alabama, by the State of Alabama against the Postal Telegraph Cable Company, a corporation organized under the laws of the State of New York, to recover taxes and penalties claimed by the State of Alabama under its statute of February 28, 1889, c. 103.

This action was commenced in the City Court of Birmingham, Alabama.

This writ of error brought up a judgment of the Circuit Court of the United States for the District of Indiana, dismissing a suit instituted against the United States by the personal representatives of Hiram W. Chase.

This was an' action brought by Ephraim P. Ellison in the District Court of the Third Judicial District of the Territory of Utah against James H. Linford, Jr.; to recover damages for the conversion of a wagon belonging to plaintiff, which liad been levied on by defendant; as tax collector of the city of Kaysville, for unpaid municipal taxes. A jury was waived, and the cause submitted to the court for trial upon an agreed statement of facts.

This ivas an action brought in the name of the State of Indiana on the relation of Walter Stanton, trustee, a citizen of New York, against Arista Glover and four other defendants, citizens of Indiana, on the official bond of said Glover as trust’*» of Mill Creek township, in the county of Fountain, State of Indiana, the other defendants being sureties on said bond.

<p>The American Sugar Refining Company and John B. Gossler filed their libel July 22, 1893, in the District Court of the United States for the Southern District of New York, against the British steamship Centurion to recover damages to a consignment of hogsheads of sugar imported from ports in Porto Rico to New York under certain bills of lading. The faults specified as the grounds of the claim were negligent and improper stowage; want of proper care on the part of the master, officers, and crew, or of the agent of the vessel and persons employed by him; failure to properly clean the hold and bilges for the cargo before loading it; omission to close the hatches between certain molasses, which was stowed in the between-deck, and sugar stowed in the lower hold; negligence on the part of the officers and crew to use the pumps on the voyage. And it was alleged that “ a number of hogsheads of molasses having been broken and others having been shifted, either through stress of weather or improper stowage, their contents ran down into- the lower hold upon the sugar, partly through the hatches and partly through the scuppers; that by reason of such defective condition of the hatches, pumps, bilges, sluiceways, decks, scuppers, and other equipment and appurtenances, and the failure and negligence of the officers and crew or those in charge of her to properly pump the vessel, the molasses and drainage from the sugar'collected in the lower hold, washing out part of the sugar from the hogsheads and damaging the remainder.”</p> <p>- On the twenty-eighth day.of February, 1894, John Blumer & Co., owners and claimants of the Centurion, filed their petition, averring, among other things, that “the Centurion at all the times mentioned in the said libel of the American Sugar Refining Company and John B. G-ossler was under a time charter to the New York and Porto Rico Steamship Company, a domestic corporation, by a charter of demise, which provided, amongst other things, that all cargoes should be loaded and stowed by the said charterers, and all work and labor in and about the loading, stowage, and discharging, thereof was performed and paid for .by the charterers and their servants, the master and officers of said steamship under the charter party having no-duties to perform in connection with the loading, stowage, and discharge of the cargo, their functions being limited exclusively to the navigation of the vessel. The cargo in question was loaded by the agents and servants of the said charterers, the New York and Porto Rico Steamship Company, in Porto Rico, under the supervision of their purser and supercargo, who accompanied the vessel, and if there was any negligence in and ’about the loading, stowage,. or care of the said cargo, as alleged in the said libel (which is expressly denied), such improper stowage, negligence, and want of care was on the part of the said servants of the time charterers and not on the part of the master, officers, and crew of said steamship.” And petitioners prayed that process, according to the course of cases in admiralty and maritime jurisdiction, should issue against the New York and Porto 'Rico Steamship Company, citing it to appear and answer the petition and the libel, and that the court should pronounce against the charterers instead of against the steamship, if the allegations of the libel should be proved and sustained; and for general relief.</p> <p>Citation was ordered to issue and upon the return thereof the charterers appeared “ specially for the purpose of objecting to the jurisdiction of this court,” and moved to set aside the process on the grounds: “ 1. That this court has no jurisdiction in admiralty to entertain such petition. 2. That upon the face of said petition it does not set forth any case wherein process ought of right to issue against the said New York and Porto Rico Steamship • Company.” The District Court denied the motion to set aside, the District Judge stating in a memorandum: “ I. cannot sustain either of the within objections, and no such inconveniences are made probable as should lead to the disallowance in this instance as a matter of discretion.” The New York and Porto Rico Steamship Company then applied to this court for. an order to show cause why a writ of prohibition should not issue prohibiting the District Court from taking jurisdiction of the petition under which that company was brought into the suit of the libellants against the Centurion, leave having been granted to file the application, and a rule having been entered thereon, the District Judge made his return thereto, submitting:</p> <p>“That'the order and the citation to make the New York and Porto Rico Steamship Company a party defendant were issued because in the libel it was alleged that the damage to the'sugars in question arose from different alleged acts of negligence, for some of which, if established, it appeared by the petition of the owners of the Centurion that the New York and Porto Rico Company would be primarily liable and bound to indemnify the shipowners, and for other of said acts of negligence, if proved, the ship would be primarily liable; and that the presence of the last-named company as a party to the suit was necessary to the due administration of justice in order to avoid a multiplicity of suits; to secure a complete hearing of the subject-matter through the presence of all the parties interested; to obtain an adjudication which should do justice to each and be binding upon all; • to avoid conflicting decisions to which separate suits would be liable through the different evidence likely to be produced in them when the parties were different, and thus to avoid any possible failure of justice through such causes, and any discredit to the administration thereof ; and because the case, though not within the letter, was deemed to be within the spirit of the-59th Bule of the Supreme Court in admiralty, and because the order of this court to bring in the said company as a defendant at once instead of requiring the owners of the Centurion to wait until after a judgment against them before filing an independent libel against the said company in case negligent stowage was established, .was, in the absence of any express rule on the subject by the Supreme Court, deemed to be within the limits of the authority of this court, as conferred by section 918 of the Bevised Statutes, whereby this court is authorized £ to regulate its own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings,’ and also as conferred by the 46th Buie of the Supreme Court in admiralty authorizing the District Court in cases ‘ not provided for by the previous rules ’ to regulate its practice £ in such manner as it shall deem most expedient for the due administration of justice in suits in admiralty.’ Of these considerations a fuller statement has been given by this court in the cases of The Hudson, 15 Fed. Rep. 162, and The Alert, 40 Fed. Rep. 836, to which reference is hereby respectfully made.</p> <p>££ A further reason for the said order and citation was, that since the promulgation of the said 59th Buie, the constant resort to it in innumerable instances has been found in practice most useful in preventing abuses, and in general extremely satisfactory; and the occasional application of the rule to other cases of negligence or torts, closely analogous to those expressly covered by the 59th Bule, has proved equally conducive to the most speedy and satisfactory distribution of justice.</p> <p>“ The motion to set aside the citation was denied for the above reasons, and because in the present instance no inconvenience to the said New York and Porto Bico Company was shown or even averred to be likely to arise, such as might lead the court in its discretion to withhold the relief asked for by the defendant shipowners.</p> <p>“I further certify that the following additional pleadings have been filed in said cause, viz., the claimants’ answer to the libel, and the libellants’ answer to the petition, copies of which are hereto annexed ; and that, on the argument of the motion to set aside the additional process, the substance of said claimants’ answer was stated to the court, as the answer to be filed; and that the New York and Porto Rico Steamship Company has not answered, having been given by me until twenty days after the decision on this application for a writ of prohibition, in which to answer.”</p> <p>The answer of claimants thus referred to denied that the loss was ascribable to any act or omission for Avhich the vessel or her owners Avere liable, but averred that it should be- ascribed to perils of the sea; and in the alternative, “that if there was any neglect or default on the part of those engaged in or about the stoAvage, care or delivery of the cargo, as to which they had no knowledge, such neglect or default Avas on the part of the said charterers, their agents or servants, for which the claimants and the said steamship should not be held responsible.” Claimants also set up in bar of the suit a decree in favor of libellants under a previous libel. 57 Fed. Rep. 412. That was a case arising on a different consignment of cargo stored in the same hold, on "the same voyage, and the charterers, Avho were brought in as in this case, Avere held liable to pay the decree.</p>

Trespass to try title. The premises in dispute were alleged in the plaintiff’s petition to be “ of the value of fifty thousand dollars.” The allegations therein respecting the citizenship of the parties were as.follows: “ The petition of Stewart Newell, a resident citizen of the city of New York, in the State of ■New York, hereinafter styled plaintiff, complaining of Eliza Cooper, B. P. Cooper, and Fannie Westrope, all residents of Galveston County, in the State of Texas,…

On January 23, 1887, a decree of foreclosure and sale was entered in the Circuit Court of the United States for the Northern District of Ohio, in the case of The American Loan & Trust Company v. The Toledo, Columbus & Southern Railway Company and Theophilus P. Brown.

Held: That the course pursued below as to the suggestion by the Attorney General could not be recognized as regular and sufficient; (2) That as the record did not show that the averments of the suggestion were either proved or admitted, the Circuit Court could not properly arrest the proceedings; (3) That as the State was not a party to the record, and refused to submit to the jurisdiction of the court, its writ of error…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES. FOR THE EASTERN DISTRICT OF TEXAS.</p> <p>On June 16,1894, the plaintiff in error was adjudged guilty of the crime of murder by the Circuit Court of the United States for the Eastern District of Texas, and sentenced to be hanged. This sentence has been brought to this court for review by writ of error. The record contains only the indictment, the judgment, and the motion in arrest thereof. The indictment charges —</p> <p>“ That one Thomas Westmoreland, a white person and not an Indian, nor a citizen of the Indian Territory, late of Pick-ens County, Chickasaw Nation, Indian Territory, in the district and circuit aforesaid, on the fifteenth day of June in the year of our Lord eighteen hundred and ninety-three, in Pick-ens County, in the Chickasaw Nation, in the Indian Territory, the same being annexed to and constituting a.part of the said fifth circuit, and annexed to and constituting a part of the Eastern District of Texas for judicial purposes, and being within the jurisdiction of this court, did unlawfully, fraudulently, and feloniously, and with his malice aforethought, and with certain drugs and poisons, to wit, strychnine and certain poisons to the grand jurors unknown, then and there given and administered by the said Thomas Westmoreland to one Robert Green with the unlawful and felonious intent of the said Thomas Westmoreland then and there to’take the life of him, the said Robert Green.</p> <p>“And he, the said Thomas Westmoreland, did then and there, by administering the said poison, as aforesaid, unlawfully, knowingly, and feloniously poison him, the said Robert Green, from the effects of which said poison he, the said Robert Green, did languish, and languishing did then and there die on the fifteenth day of June, a.d. eighteen hundred and ninety-three, and within a year and a day from said date.</p> <p>“ And the said grand jurors aforesaid, upon their oaths aforesaid, do say that upon the day aforesaid, at the place aforesaid, Avith said poison aforesaid, used as aforesaid, and in the manner aforesaid, the said Thomas Westmoreland did unlawfully, feloniously, and Avith his malice aforethought, kill and murder the said Robert Green. The said Thomas Westmoreland and he, the said Robert Green, being then and there Avhite persons and not Indians, nor citizens of the Indian Territory,, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States of America.”</p>

Held: that the long delay was such laches as forbade a court of equity to interfere. On March 1, 1889, the appellant, as plaintiff, filed in the Circuit Court his bill to compel the specific performance of a contract for the sale óf real estate. The defendant demurred to this bill, on the ground of a lack of equity, which demurrer, on April 13, 1889, was sustained and the bill dismissed. 40 Fed. Bep. 338.

Held: that the Fidelity Bank, though it acquired the mere legal title to the draft, never became its equitable owner; that the notice on the draft' that it was for collection bound all parties, into whose hands it came; that the Evans *557 ville Bank could not by its entry of credit to the Fidelity Bank release itself of its obligation to the German-American Bank; and that the mere fact that news of the condition of the…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.</p> <p>This was an action of trespass on the case, brought in October, 1889, in the Circuit Court of the United States for the District of Massachusetts, by Herman and Louis Koyer against William Coupe and Edwin A. Burgess for an alleged infringement of letters patent of the United States, No. /T/T,920, dated May 12, 1868, for an “ improved machine for treating hides.”</p> <p>The patent expired on May 12, 1885, and this suit was entered July 14, 1885. The trial resulted, on November 10, 1886, in a verdict for the plaintiffs in the sum of $18,000, and judgment was entered, on November 26, 1889, for the sum of $21,288 damages and $164.25 costs.</p> <p>T.he defendants below sued out a writ of error to this court.</p>

The Texas and Pacific Railway • Company was organized under an act of Congress, approved March 3,1871, and several supplementary acts. In 1881 it acquired the railroad and franchises of the New Orleans Pacific Railway Compan3r, a corporation of the State .of Louisiana. Its main line of railroad extends from New Orleans to El Paso, Texas, and, as part of it, has a bridge costing $300,000 across the Atchafalaya River, which river is wholly within the State of Louisiana.

Held: in reference to clerks’ fees, that an order of court réquiring' a service to be performed was sufficient authority as between the clerk and. the government for the performance of the service, and for the allowance of the proper fee there *594 for. No question is made but that the services in question were performed in obedience to such an order.

This was a bill in equity by C. & A. Potts & Co., an Indiana corporation, against the firm of Jonathan .Qreager’s Sons, of Cincinnati, for the infringement of patent No. 322,393, issued July 14, 1885, to Clayton Potts and Albert Potts for a clay disintegrator; and also of patent No. 368,898, issued August 23, 1887, to the same inventors for an improvement upon the prior patent.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.</p> <p>This was an action at law for the infringement of letters patent No. 42,920, issued May 24, 1864, to James Knibbs for an improvement in fire-engine pumps, of which patent plaintiffs were the assignees. The patent expired May 24, 1881. The action was begun May 20, 1887, in the name of Ruel Philbrook and several others, among whom was Christopher C. Campbell, the plaintiff in error, claiming to be at different times assignees of the patent and of claims for infringements of the same.</p> <p>Defendant pleaded among other things that “ the cause of action mentioned in the plaintiffs’ declaration did not occur within six years before the suing out of the plaintiffs’ writ.”</p> <p>Upon the'trial, the plaintiffs introduced evidence to show that Philbrook, by assignments, had received all the title, as assignee, held by the several assignors to him during the life of the patent, and claimed the right to proceed in one suit in the name of all his prior assignors.-</p> <p>The court ruled that the action could not be maintained, and that Philbrook could not sue in the name of all the assignors, but only in the name of the party or parties who held the entire title to the patent in suit for the time being.</p> <p>To this ruling the plaintiff Philbrook excepted, and his exception was then and there allowed; and thereupon, by leave of the court, the plaintiff, for the purposes of that trial, discontinued as to all the plaintiffs named in the writ, except Christopher O. Campbell, and proceeded in his name. It was admitted for the purposes of the trial that the entire title in the patent vested in Christophér C. Campbell, individually or as trustee, from the 10th day of October, 1877, to the 20th day of December, 1880, and for the purposes of the trial no claim for damages was made in behalf of said Campbell after December 20, 1880.</p> <p>The defendant then asked the court to direct a verdict for the defendant on the ground that the action' was barred by the statute of limitations of the Commonwealth of Massachusetts, as all claims for action under the admission terminated December 20, 18S0, and the writs were dated May 20, 1887, and were served on the 23d day of May, so that more than six years had elapsed. The court acceded to this view, decided that the Massachusetts statute of limitations was a defence to the suit, and directed a verdict for the defendant. Whereupon plaintiff Campbell sued out this writ of error.</p>

In the Circuit Court of the IJnited States for the Northern District of California, at the February term, of the year eighteen hundred and ninety-one, B. N. Rowley brought an action at law against the Market Street Cable Railway Company, a corporation under the laws of the State of California, wherein he alleged that on the 28th day of June, 1887, Benjamin W. Lyon and Reuben Munro, as inventors of an improvement in car-axle lubricators, obtained letters patent therefor,…

This suit was originally begun by a petition filed December 29, 1884, upon the equity side of the District Court of Lee County, Iowa, by certain creditors, who had previously attached the stock in trade at Fort Madison, Iowa, of one John H. Schwartz, to set aside and vacate four chattel mortgages upon such property, and subject the same to the payment of their debts.

Section 623 of the Political Code of the State of California provides as follows: “The [insurance] commissioner must require every company, association, or individual not incorporated under the laws of this State and proposing to transact insurance business by agent or agents ..in this State, before commencing such business to file in his office a bond to be signed' by the person or firm, officer or agent, as principal, with two sureties to be approved by the commissioner,…

Held: as cited in Low v. Settle, 32 W. Va. 600 , amounts to an exception which excluded the parcel described from the grant. Mr. Justice Shiras, after stating the case, delivered the

This was a petition of the chief supervisor of elections for the Northern District of Illinois, for “services rendered as such chief supervisor, in entering and indexing the records of his office, to wit: The records of the names of persons who .registered and voted at the election held in the city of Chicago, city of Lake Yiew, town of Lake, and village of Hyde Park, in November, 1888, at which election Representatives to Congress were voted for, 61,482 folios, at 15 cents…

Held: however, in Carper v. Fitzgerald, 121 U. S. 87 , that an appeal did not lie to this court from an order of- a Circuit Judge of the United States,, sitting as a judge and not as a court, discharging a prisoner brought before him on a writ of habeas corpus,- for the reason that the act of March 3, 1885, c. 353, 23 Stat. 437 , gave an appeal to this court in habeas corpus cases only from the final decision óf a circuit…

Held: that the legislature may declare the right to carry oh any business or occupation to be a privilege, to be purchased from the State on such conditions as the statute law may prescribe, and that it is illegal to carry on such business without complying with those conditions.