Volume 28 — Federal Reporter

<p>t. Removal op Cause — JanrsDiCTTON—SEPABARLE Controversy — Subjecting J.AtZV TO PAYMENT 01? ALIMONY.</p> <p>An action by a divorced woman against the heirs of her former husband, to subject lands of which he died seized to the payment of her alimony, does not'present a separable controversy as to any of the defendants.</p> <p>2. Same — Remand.</p> <p>In such a case, some of the defendants being territorial citizens, with no right of removal, the entire controversy must bo adjudicated in the state COUJ'tS.</p>

<p>Motion to Remand to State Court.</p>

<p>1. Removal oi? Cause — Remand—Non-Resident Mortgagee a Defendant.</p> <p>On a motion to remand to the state court from which it was removed, an action for the foreclosure of a real-estate mortgage, whore the plaintiff and the defendant, the mortgagor, are residents of the same state, and another defendant a resident of another state, and a mortgagee sets up in his answer a claim against the mortgaged property adverse to that of plaintiff, as well as the mortgagor, the facts do not give the United States circuit court jurisdiction, and the motion must he granted. Wilson v. St. Louis é¿ 8. £' By. Co., 22 Fed. Rep. 3; S. 0.114 U. S. 60; 5 Sup. Ct. Rep. 738.</p> <p>2. Same — Basis of Jurisdiction.</p> <p>The court cannot look at the contract between the non-resident mortgagee and the mortgagor to determine the question of jurisdiction.</p>

Motion to open a decree, and correct an erroneous description of lands therein, after a sale and confirmation thereunder.

In Equity. Bill to quiet title, and special demurrer thereto on the ground that defendants actually occupy the land in controversy; and the further ground that complainant’s equity is barred by lapse of time.

In Equity. Petition for rehearing of bill and cross-bill to quiet title; complainant claiming, by mesne conveyances, from the purchaser at a judicial sale on foreclosure; defendant claiming, by mesne conveyances, under a subsequent purchase from the mortgagor.

Creditors’ bills to set aside a conveyance of lands and goods made by the defendant to ono of his creditors at about the time the grantor failed in business. Heard on pleadings and proofs.

In Equity. Bill in equity by the purchaser of certificates issued in April, 1871, by the defendant municipality, for assessments it had made against, and improvements it had made upon, city lots, the present occupants of which were made co-defendants with the city. The special relief sought was payment by the city of these several amounts, or, in default thereof, a decree of foreclosure, and a judicial sale of said lots.

<p>Trade-Mark — INJUNCTION—General Use oe Symbol.</p> <p>Preliminary injunction denied where affidavits of defendants mate it doubtful whether the plaintiff has so had exclusive use of symbols sought to be restrained as to make their use by defendants likely to pass their wares as his.</p>

<p>1. Husband and Wife — Mortgage by — Eet, ease of Wife — Sal® of Property —Rights of CREDITORS.</p> <p>A husband and wife joined in a mortgage, including certain property belonging to each, to secure the payment of the husband's debt, and after the debt was due the husband, with the assent of creditors, conveyed his property to a third person in trust, to manage the same, and, with the consent of the debtor, to sell and dispose of the same, and apply the proceeds on the debt; in pursuance of which authority said trustee sold a portion of said property, and applied the proceeds accordingly, and thereupon the creditors released their mortgage on the same. Held, (i) that the property of the wife was not discharged from liability for the remainder of the debt by such release unless she was pecuniarily injured thereby; (2) that a provision in such mortgage that, in ease of default in the payment of the debt, the mortgage may be foreclosed according to law, is mere surplusage, and did not prevent the debtor and creditors from making other arrangements for the disposition of his property in satisfaction of the debt, and the release of the same from the mortgage, without affecting the liability of the wife’s property, unless it appeared that tlie property was sacrificed or disposed of at loss than its market value, to her injury; (3) that the burden of proof is on the creditor to show that such sale w as fair, and the proceeds j ustly applied, or that the property of the wife was not thereby wrongly made to bear any more than its proportion of the debt; (4) that the voluntary f orbearance of the creditors to sue the debtor while this amicable arrangement between him and them for the disposition of his property was being carried out, did not amount to an extension of time to the debtor which would discharge the property of the wife from the mortgage, for such forbearance was neither for a time certain, nor for a valuable consideration, and left her at liberty to pay the debt, and proceed against the husband, sub-rogated to the rights of the creditors.</p> <p>2. Equity — Limitations—Note and Mortgage.</p> <p>The rule of limitation in a suit in equity on a note and mortgage to recover the contents of the former, and enforce the lien of the latter therefor, is the same as in an action thereon at law.1</p> <p>3. Courts — Jurisdiction of United States Circuit Court — Promissory Hotes —Negotiability.</p> <p>By the law-merchant a promissory note payable to order or bearer is negotiable as long as it exists unpaid, and the indorsee or assignee thereof may, under section 1 of the judiciary act of 1875, (18 St. 470,) sue thereon in this court without reference to the citizenship of his indorser or assignor.</p> <p>4. Statute of Limitations — Part Payment on Note.</p> <p>Under section 25 of the Code of Civil Procedure a payment on a promissory note, at any time after its maturity, by any one who may be compelled to pay the same, constitutes the point of time from which the limitation against aii action thereon commences to run.2</p> <p>5. Equity — Evidence—New Matter in Answer.</p> <p>Hew matter in an answer in equity, or an allegation not responsive to the bill, is not evidence, and the burden of proof is on the defendant to support it.</p> <p>6. Same — Answers on Information and Belief — Weight.</p> <p>General allegations, made on information and belief, without any verifying circumstance of time, place, or amount, even when responsive to the bill, are not entitled to much weight as evidence.</p> <p>NOTE.</p> <p>1. Mortgage and Notes. A statute may be a bar to a note secured by a mortgage, and not bar the mortgage itself. Oerney v. Pawlet, (Wis.) 28 N. W. .Rej>. L83.</p> <p>Though limitations may run against a note secured by mortgage after three years,yet an action at law will lie on the covenant (if one) contained in the mortgage, at any time within 12 years. Earnshaw v. Stewart, (Md.) 2 Atl. Rep. 734.</p> <p>In Cliency v. Cooper, (Neb.) 10 N. W. Re;). 471, in delivering the opinion of the court, Maxweel, 1., says: “ The only remaining question is that of the statute of limitations; it being contended that more than live years have elapsed since the notes became due. In Hale v. Christy, 8 Neb. 264, it was held that an action to foreclose a mortgage could be brought at any time within ten years from (he time the cause of action accrued. As the statute would run against the notes in live years, it is probable that, after the expiration of that time, the remedy would be against the mortgaged premises alone; but that question does not arise in this case.” See, to the same effect, Stevenson v. Craig, (Neb.) 12 N. W. Rep. 1; Gatling v. Lane, (Neb.) 22 N. W. Rep. 453; Herdman v. Marshall. (Neb.) Id. 690.</p> <p>2. Part Payment. Part payment of a promissory note, an acknowledgment of its validity, and a promise to pay*it all, made within the time prescribed by the sf atute of limitations, take the case out of the statute. Willey v. Stale, (Ind.) 5 N. E. ltep. 886.</p> <p>(a) Voluntary Part Payment. At common lawapart payment madeby one of the joint makers of a note would keep the debt alive as to all, and would be equivalent to a now promise as to all. Mainzinger v. Mohr, (Mich.) 3 N. W. Rep. 183; Wyatt v. Hodson, 8 Bing. 309.</p> <p>In most of the states the comm on-law rule has been changed by statute. Maricntlial v. Hosier, 16 Ohio St. 566; Quimby v. Putnam, 28 Me. 419.</p> <p>In absence of any statute to the contrary, payment by one joint debtor will remove the bar of the statute of limitations as to all, on the ground that each joint debtor is the agent of all the rest for making such payment. National Bank of Dolavau v. Cotton. (\Vis.) 9 N. W. Rep. 926. See Huntington V. Ballou, 2 Laus. L21.</p> <p>Payment made upon a joint note by one party thereto, in the presence of the other, who was in fact only a surely, held to take the note out of the statute as to both, in Mainzinger v. Mohr, (Mich.) 3 N. W. Rep. 183.</p> <p>Part payment or a new promise by one co-surety, under the Michigan statute, will not operate to keep the obligation alive as to the other surety, who was not privy to it, or in any way participated in it. Probate Judge v. Stevenson, (Mich.) 21 N. W. Rep. o48.</p> <p>Partial payment by one partner, after dissolution of the partnership, will not operate to take the debt out of the statute of limitations as to another partner. Cronkhite v. Herrin, 15 Ned. Rep. 888.</p> <p>Payment of interest on a note drawn by a firm, by one of the members, after dissolution of the firm, but within six years after the maturity of such note, will renew it as against the statute of limitations. Merritt v. Day, 38 N. J. Law, 32. See, to same effect, Beardsley v. Hall, 36 Conn. 270.</p> <p>A promise by one partner, after dissolution of the partnership, and before a suit is barred by the statute of limitations, to pay a partnership debt, does not prevent the running of the statute as to the other partners, although the creditor was ignorant of the dissolution. Tate v. Clements, 16 Ela. 339.</p> <p>Payment by one of two joint makers, where not partners, does not renew the note as to the other makers. Shutts v. Pingar, (N. Y.) 3 N. E. Rep. 588.</p> <p>A payment by the principal maker of a promissory note, before the statute of limitations has completed a bar, will not prevent the completion of the bar as to a co-maker who is a surety. Knight v. Clements, 45 Ala. 89.</p> <p>The payment by the principal, year by year, of the interest on a joint and several promissory note will prevent the operation of the statute of limitations in favor of a surety to the note. Schindel v. Gates, 46 Md. 604.</p> <p>It was said in Thomas v. Brewer, (Iowa,) 7 N. W. Rep. 571, in construing the Nebraska statute, that voluntary part payment is an acknowledgment of the indebtedness, and that an agreement to pay the residue is implied. See Harper v. Fairley, 53 N. Y. 442; Rolfe v. Pillond, (Neb.) 19 N. W. Rep. 970.</p> <p>Under the Iowa statute, however, partial payment, and indorsement thereof on a promissory note, are insufficient to prevent the bar of the statute of limitations, unless such indorsement is signed by the party to be charged. Parsons v. Carey, 28 Iowa, 431; Harrencourt v. Merritt, 29 Iowa, 71; Roberts v. Kamnion, Id. 128.</p> <p>Mere part payment of a debt, without words or acts to indicate its character, is not evidence from which a new promise to take the debt out of the operations of the statute of limitations may be inferred. Chadwick v. Cornish, (Minn.) 1 N. W. Rep. 55 ; Brisbin v. Farmer, 16 Minn. 215, (Gil. 187.)</p> <p>A payment of interest on abarred note by maker, and indorsement thereon by holder, will take it out of the statuteof limitations. Yesler v. De Koslowski, (Wash. T.) 8 Pac. Rep. 493.</p> <p>Where payments are made on an account barred by the statute, it is not necessary there should also be a written promise to make further payment, to keep the claim alive. Miner v. Lorman, (Mich.) 26 N. W. Rep. 678.</p> <p>It is said in Corliss v. Grow, (Yt.) 2 Atl. Rep. 389, that part payment of a debt barred by the statute of limitations, if made without protest of further liability, is an acknowledgment of such debt at the time of such payment, from which a promise to pay the balance is implied.</p> <p>It has been generally held that partial payment stops running of statute, whether made before, Bngmann v. Estate of Immel, (Wis.) 18 N. W. Rep. 182; see Mainzinger v. Mohr, (Mich.) 3 N. W. Rep. 183; Eaton v. Gillet, 17 Wis. 435; Williams v. Gridley, 9 Mete. 482; Sibley v. Lumbert, 30 Me. 253; Newlin v. Duncan, 1 Har. (Del.) 204 ; 7 Wait, Act. & Def. 228, 301, 307; Pars. Cont. 353, or after the statute has debarred the claim, Winchell v. Hicks, 18 N. Y. 558; Pickett v. Leonard, 34 N. Y. 175 ; Harper v. Fairley, 53 N. Y. 442; Carshore v. Huyck, 6 Barb. 583 ; Graham v. Selover, 59 Barb. 313; First Nat. Bank of Utica v. Ballou, 49 N. Y. 155; Ilsley v. Jewett, 2 Mete. 168; Ayer v. Hawkins, 19 Vt. 26; Wheelock v. Doolittle, 18 Yt. 440; Emmons v. Overton, 18 B. Mon. 643; Walton v. Robinson, 5 Ired. 343; Sehmucker v. Sibert, 18 Kan. 104; Shannon v. Austin, 67 Mo. 485 ; Carroll v. Forsyth, 69 Ill. 127.</p> <p>A credit entered upon a note by the holder thereof does not revive a barred note, under the construction of the statute of limitations in Georgia, unless he be authorized by the defendant in writing to enter such credit. Stone v. Parmalee, 18 Fed. Rep. 280.</p> <p>(6) Enforced Part Payment. Enforced part payment will not affect the running of the statute. Thomas v. Brewer, (Iowa,) 7 N. W. Rep. 571.</p> <p>But a part payment made by sale of a collateral by holder, and indorsed on note, will remove bar. Sornberger v. Lee, (Neb.) 15 N. W. Rep: 345 ; Wheeler v. Newbould, 16 N. Y. 392; Joliet Iron Co. v. Scioto F. B. Co., 82 Ill. 548; Whipple v. Blackington, 97 Mass. 476; Haven v. Hathaway, 20 Me. 345.</p> <p>(c) By Partner, Go-Surety, etc. At common law, a payment made by one of the debtors kept the demand alive as to both, and was equivalent to a new promise by both. Mainzinger v. Mohr, (Mich.) 3 N. W Rep. 183; Wyatt v. Hodson, 8 Bing. 309.</p> <p>The rule is different in most if not all the states. Marienthal v. Mosler, 16 Ohio St. 566; Quimby v. Putnam, 28 Me. 419.</p> <p>In absence of a statute to the contrary, part payment by one joint debtor will remove the bar as to all. National Bank of Delavan v. Cotton, (Wis.) 9 N. W. Rep. 926. See Winchell v. Hicks, 18 N. Y. 558; Huntington v. Ballou, 2 Lans. 121.</p> <p>A partial payment upon a promissory note by one of the joint and several makers thereof, and indorsed upon it before the note is barred by the statute of limitations, and within six years before suit brought, is inoperative to prevent the running of the statute as to the others. Willoughby v. Irish, (Minn.) 27 N. W. Rep. 379.</p> <p>Money paid by one of two or more joint debtors on contract, at request of others, stops running of statute as to all. National Bank of Delavan v. Cotton, (Wis.) 9 N. W. Rep. 926; Pitts v. Hunt, 6 Lans. 146; Whipple v. Stevens, 2 Fost- (N. H.) 219.</p> <p>Payment by one of two joint ’obligors in presence of the other will take out of statute. Mainzinger v. Mohr, (Mich.) 3 N. W. Rep. 183.</p> <p>But it has been held that proof of partial payment by one partner, after the dissolution of the partnership, cannot be introduced to stop the running of the statute of limitations. Cronkhite v. Herrin, 15 Fed. Rep. 888.</p> <p>A.nd it has also been held that a part payment or new promise by one co-surety will not operate to keep alive the obligation as to a co-surety who was not privy to it, or in no way participated in it. Probate Judge v. Stevenson, (Midi.) 21 N. w. Rep. 348.</p> <p>{dj Part Payment by Assignee for Benefit of Creditors. A. being indebted to B. for wages, made an assignment for benefit of creditors, and the assignee paid B. several small sums at various times on account, and finally gave him a check for $4.83, “tobe applied as final dividend” on his claim against A. The claim became barred by the statute of limitations before B. sued to recover the balance due. .Held, that the payments by the assignee did not keep the claim alive, and that B. could not recover. Parsons v. Clark, (Mich.) 26 N. W. Rep. 656.</p> <p>It is held by the supreme court of Nebraska, Clark v. Chambers, 22 N. W. Rep. 229, that the payment of a dividend by the assignee of an insolvent debtor is not such a part paym ent of a debt, barred by the statute of limitations, as to take the remainder out of the statutory limitation as against the debtor; citing Marieufchal v. Mosler, 16 Ohio St. 566; Stoddard v.Doane, 7 Gray, 387; I’ickeit v. King, 34 Barb. 193; Roosevelt v. Mark, 6 Johns. Oh. 266.</p> <p>In Demon v. Kenyon, (Kan.) 1 Pac. Rep. 562, where the maker of a note thereafter made an assignment for the benefit of creditors, and in such assignment scheduled this note and directed Ms assignee to convert the assigned property into money and pay his debts, and in pursuance thereof the assignee took possession and converted said properly into money, and applied the same in part payment of the assignor’s debts, this note among the number, it was held that the payment, being one made in pursuance of express directions from the assignor for his benefit, and out of the proceeds of Ms property, is such a payment as avoids the bar of the statute of limitations under the Kansas statute; and this, notwithstanding the proceedings under the assignment are controlled by the provision of a general statute concerning assignments for the benefit of creditors. The court cite Jackson v. Fairbank, 2 H. Bl. 34Ü; Barger v. Durvin, 22 Barb. 68.</p>

<p>Costs — Failure op ProsecutioN — Dismissal—Docket Pee.</p> <p>Whore a suit is dismissed for w4nt of prosecution, a docket fee to the defendant is not taxable.</p>

<p>1. Judgment — Decree oe State Court — Estoppel—Res Adjudicata.</p> <p>Where a decree has been obtained in a Minnesota state district c'ourt against non-resident defendants, in a suit begun by the publication of summons, and, upon their appearance within one year from the time judgment was rendered, an order was made by the district court reopening the case, and permitting the defendants to come in and defend, and afterwards another suit was brought and transferred to the United States circuit court, held, that the order allowing defendants to come in and defend nullified the decree as a judgment res adjudícala, and cannot be relied upon as concluding the parties.</p> <p>S. Same — Docketing Judgment — Deciphering Ñame on Docket — Name to be Read in Connection with Context.</p> <p>A transcript of judgment of the Ramsey county district c.ourt, docketed in Dakota county, did not have the defendant’s name legibly and correctly spelled. Afterwards an execution, which described the name correctly, issued on the judgment, and the sheriff levied upon the land which he intended to .levy upon by virtue of the judgment, and sold it as the land of defendant, and made his return, and gave his deed to the purchaser. Held, that all these facts should be taken into consideration in deciphering the name on the judgment docket, and that the judgment was properly recorded, and that the sale under it was valid.</p> <p>8. Deed — -After-Acquired Title Inures to Grantee — Covenant of Title —Lien of Judgment.</p> <p>A conveyance, with covenant of title, made by a grantor who has a bond for a deed, and before he obtains the legal title, vests the legal title in the grantee eo insianti when the grantor obtains it, and there is no space of time in which the lien of a judgment obtained against said grantor, after the conveyance was made, can attach against the land.</p>

<p>1. Equity — 'Bill oi<' Review — Parties.</p> <p>, Where the defendants in a decree wore not necessary parties to the suit, one or more of them may maintain a hill of review to reverse the same without making the co-defendants parties thereto.</p> <p>3. Same — Degree nr United States Circuit Court — Bill oe Review.</p> <p>A decree of the United States circuit court will not he reversed, on a hill of review therein, because in the mean time the state court has put a construction on a clause of the state constitution contrary to that of the circuit court in making said decree.</p>

<p>Trespass, to Try Title.</p>

<p>1. Error — Judgment not Suspended by.</p> <p>A writ of error is in the nature of a new suit to set aside or annul a judgment for error of law apparent on the face of the record, and pending the same the judgment is in full force and effect as a har or an estoppel.</p> <p>2. Same — Inconsistent Positions in Court.</p> <p>A party who takes a position in the course of a litigation is estopped to act inconsistently therewith, so long as the same is unretracted, and this includes the case of one who, having taken a judgment of this court against himself to the supreme court on a writ of error, attempts, while said proceeding is still pending, to plead said judgment in har of an action against himself hy the plaintiff therein.</p>

<p>1. Official Bond — Sureties—Disbursing Officers — Specific Appropriations —Unauthorized Payments — Mingling Accounts — Debits Canceled.</p> <p>Disbursing officers of the treasury are not authorized to draw, nor the treasurer to pay, from the specific appropriations, any other sums than those authorized by law on account of the appropriations respectively.</p> <p>2. Same — Case Stated.</p> <p>M. was disbursing officer, as chief of the bureau of accounts, in the department of state. As such, he gave a bond, with the defendants as sureties, for the faithful discharge of his duties. Moneys for specific purposes, appropriated by congress, were placed to his credit by the treasurer, during several years. M., during the same time, received considerable moneys monthly for issuing passports, which was not a part of his official duty as disbursing officer, and for which the sureties were'not liable. M. was in the habit of using current receipts from passport moneys to pay current claims upon his treasury account, and at the end of the month he drew upon his treasury account in order to pay to the treasury the amounts due to the government for passport moneys. Upon M.’s death, in January, 1884, his treasury account was found about §17,000 short, and during the "period covered by these accounts he had drawn from it about §29,000 for paying into the treasury his passport moneys. Each draft, and a letter accompanying it, stated that purpose, and the treasurer accordingly debited the appropriations account, and credited the same to M. in the passport account. Held, that the drafts on the appropriations account to pay passport moneys were unauthorized, illegal, and void; and no change in the actual money in the treasury appearing, held, that the debits charged against the appropriations account were unauthorized; that the sureties were entitled to have them canceled; and the accounts being readjusted accordingly, and there being no deficit in the appropriations account, a verdict was directed for the defendants</p>

<p>1. Indians — Deed of Indian Land — Evidence.</p> <p>Where a deed of lands purports to have been executed by the heirs of a deceased Indian, neither the “certificate of identity” required by the interior department, nor the formal approval of said deed by the secretary of that department, are cohclusive on the United States courts as to the identity of the grantors.</p> <p>2. Same — Validity of Deed.</p> <p>When the validity of such a deed is in issue before said courts, and the proofs show that the grantors therein falsely personated the real heirs, and thereby actually misled the official who approved the conveyance, the deed will be held void.</p>

<p>Municipal Corporations — Bonds—Action—Pleading—Forgery.</p> <p>An allegation that municipal bonds were duly issued and registered is conclusive, on demurrer to a pleading which, alleges the forgery of the bonds.</p>

<p>1. Municipal CoiipoRatioNS — Bonds—Mandamus—Judgment—Satiseaction.</p> <p>A writ of mandamus to enforce collection of judgment against a municipality on its bonds is in the nature of, and is legally equivalent to, the statutory writ of execution.</p> <p>2. Same —Statute op Limitations.</p> <p>The right to prosecute the writ for such a purpose is limited to the same period of time within which execution maybe sued out on a judgment against individuals.1</p>

<p>Action to Becovei Duties.</p>

At February term, 1886, of the district court, the defendant was indicted for making a fraudulent claim for a pension, and pleaded six pleas in abatement, each verified by the defendant’s oath; and alleging that Orin K. Phinney and John H. Davis, of Standish, in this district, who served at that term as two of the grand jurors who found and returned this indictment, were not duly and legally drawn to serve as grand jurors.

• On February 22,1886, the defendant was arrested, and brought before a commissioner of this court, on a complaint charging him with making a false return to the post-office department, and, by order of the commissioner, entered into a recognizance to appear at April term, 1886, of this court, to answer to any indictment which should be then found against him for the offense alleged in the complaint.

<p>1. Copyright—Dramatic Composition—Imitation Prohibited by Injunction.</p> <p>An original operetta, consisting of libretto, score, and name, is property at common law, which, so far as unpublished, will be protected from fraudulent imitation by injunction.</p> <p>2. Same—Dramatic Composition—What is Originar Composition.</p> <p>An operetta may be so far an original dramatic composition as to entitle it to protection as literary property, although it is an adaptation of an old play.</p> <p>3. Same—What is Publication of Name of.</p> <p>Publication of the songs and vocal score of an operetta, with the name of the operetta, does not make such name public property.</p> <p>4. Same—Party to Bring Suit for Infringement.</p> <p>Suit for protection of property at common law in a dramatic composition e. {/., an operetta, can be brought only by the licensee of a general owner, where such licensee has an exclusive license for a definite period, and, by the terms of his license, is to bring all suits for the protection ot' his rights.</p> <p>5. Same—Part Owner may Sue for Infringement.</p> <p>A part owner of a dramatic composition may protect his property by suit against a wrong-doer.</p>

At Law. Tried by the court. This is an action to recover $535, the value of 70,000 lithographic copies of a photograph of Oscar Wilde, copyrighted by the plaintiff. These copies were printed by the Burrow-Gilos Lithographic Company for the defendants, and published and circulated by them. Prior .to the commencement of this action they had all passed out of the possession of the defendants. The defenses are: First.

<p>1. Patents for Intentions — Infringement—Laches as a Bar to an Account for Profits.</p> <p>To a bill to restrain infringement of a patent the defendants by plea set up a claim of right to use the patented apparatus in question, and the grounds thereof. The plaintiff having neglected for over two years to reply.or set the plea down for hearing, the court, under equity rule 38, decreed that he was tobe deemed to admit its truth and sufficiency, and that the bill bo dismissed. The defendants were then suffered to continue to use the apparatus for nearly two years more, before a second (the present) suit was brought to restrain them. ' Held, that the court would not decree an account of profits, the defendants having acted under a bona fide claim of right, and there being on the other side acquiescence and inexcusable laches in seeking redress.</p> <p>2. Same — Damages.</p> <p>The proofs disclosing an established license fee of §1,000, held, further,. that the amount of such fee was a just measure of compensation for the infringement.</p>

<p>1. Patents por Inventions — Infringement.</p> <p>Letters patent No. 173,369, granted February 8,1876, to Sebastian Stulz, for an improvement in car-wheels, construed, and held not to be infringed by the-defendants.</p> <p>2. Same — Scope op Patent.</p> <p>Tho self-lubricating principle applied to car-wheels being bid, and the invention a mere improvement in a well-known class of wheels, and the claim being for a combination of designated component parts, “all as shown and described,” held, that the patentee was limited to the particular constiaction shown in the specification.</p>

<p>1. Patent — Cl aim-— Construction and Extent of.</p> <p>A clause in the application for a patent, immediately associated with, the claim, either preceding it or following-it, and unmistakably designed to state what the inventor intended to secure to himself by the patent, and to include in his claim, should be construed as a part o£ the “claim, ” and covered by the patent.</p> <p>2. Same — 'Telegraph Key — Sounder—Torsional Spring — Infringement—Injunction.</p> <p>II. obtained a patent lor an improvement in “telegraph transmitters.” There were four'specifications in the claim, in each of which the invention was described as a combination, in a telegraph key, of a torsional spring, by means of a fiat strip of metal. with a lever f ulernmed upon it, etc.; an d in the preceding- clause of the application it was stated that the inventor “did not limit himself to telegraph keys only, * * * as it was equally applicable to relays and sounders.” The defendant appropriated and used E.’s combination, and the whole of it, in the sounder. Held, that the patent covered the combination when used in a sounder, and not its use in a key only; and that the defendant’s instrument was an infringement, and that the complainants were entitled to an injunction.</p>

<p>1. Patents for Inventions—Invention—Invalidity of Reissue.</p> <p>Reissued letters patent No. 9,909, of October 25, 1881, to the Consolidated Fruit-jar Company, as assignee of Lowis R. Eoyd, the original being No. 88,439, of March 30, 1869, for improved mode of preventing corrosion of metallic caps, are void for want of invention over the Taylor & Hodgetts patent, No. 117,236, of July 18,1871, for caps for preserve jars.</p> <p>2. Same—Combination of Old Devices—Invention.</p> <p>A claim for “the new article of manufacture, consisting of a screw-cap for fruit-jars and analogous uses, made of them, soft metal, with corrugated screw-threads in it, and having combined with it a separate plate or partial lining of glass, or its equivalent, permanently secured therein, substantially in the manner and for the purpose set forth, ” does not disclose a patentable invention, in view of prior patents, which showed all the separate elements of the claim, and all that patentee did was to combine the old screw-cap of one with the old lining-plate of another.</p> <p>8. Same—Improvement—Patentability.</p> <p>Although a patented device may be, as evidenced by public favor and extensive use, an improvement on all older devices, the question is whether it is a patentable improvement.</p> <p>NOTE.</p> <p> Novelty and Utility as Evidence of Invention. </p> <p>An increased utility, beyond what had been attained by devices previously in use, in cases of doubt, is usually regarded as determining the question of invention. Hollister v. Benedict & Burnham Manuf’g Co., 113 TJ. S. 59; S. C. 5 Sup. Ct. Rep. 717, (January 5, 1885.)</p> <p>The fact that the older devices were not used, and the speedy and extensive adoption of the patented device, supports the conclusion of novelty in the latter. Consolidated Valve Co. v. Crosby Valve Co., 113 U. S. 157; S. C. 5 Sup. Ct. Eep. 513, (January 19, 1885.)</p> <p>It is not enough that a thing shall be new, in the sense that in the shape or form in which it is produced it shall not have been before known, and that it shall be useful ; but it must, under the constitution and the statute, amount to an invention or discovery. Thompson v. Boisselier, 114 U S. 1; S. C. 5 Sup. Ct. Rep. 1042, (March 30, 1885.)</p> <p>If the prior devices were unsuccessful, and the improvement which resulted from the use of the patented device is manifest, there can be no doubt that the making of the latter involved invention. Waelace, J., Bogart v.Hinds, 26 Fed. Eep. 149, (December 29, 1885.)</p> <p>Though the adjustment of the different parts of the combination was novel, and the combination as an entirety useful, still, if it exhibits only the expected skill of the mechanic’s calling, and not the creative work of the inventor, it is not patentable. Dyeb, J., Calkins y. Cshkosh Carriage Co., 27 Fed. Eep. 296, (April, 1886.)</p> <p>“It has always been the law that a patentable invention, although new and useful, must be the result of something more than, and different from, mechanical skill; but the existence of novelty and utility in a patented thing was potent in the determination of the question of its patentability.” McCormick v. Seymour, 2 Blatchf. 240; Fnr-bash.v. Cook, 2 Fisher, 288; Judge Shipman, in Celluloid Manufg Co. v. Comstock & Cheney Co., 27 Fed. Eep. 358, who also said that the decision in Hollister v. Benedict & Burnham Manuf’g Co. “makes independent evidence of the existence of inventive skill, -apart from inferences of such existence which may be drawn from novelty and utility, to be of greater importance than has been understood heretofore.” April 24, 1886.</p> <p>The fact that the patented device went at once into such public use as almost to supersede older devices is pregnant evidence of novelty, value, and usefulness ; and this is a fact that has much weight, and is not to he overlooked. Nixon, J., New York Belling & Packing Co. v. Magowarq 27 Fed. Rep. 3G2, (February 18, 188(1.)</p> <p>While it is true that the utility of a machiné, instrument, or contrivance, as shown by the general public demand for it, when made known, is not conclusive evidence of novelty and invention, it is nevertheless highly persuasive in that direction, and, in the absence of pretty conclusive evidence to the contrary, will generally exercise controlling influence. Butler, J., in Hill y. Biddle, 27 Fed. Hep. 560, (April 30, 1886.)</p> <p>Where an old device or machine in general use, with acknowledged serious delects, which have long been endured because no one has previously discovered a means of obviating them, is taken in hand, and, by efiangiug its form or structure, they are removed, and a different and improved result obtained, it may safely be affirmed that the change required invention. Where the improvement, and consequent public benefit, is great, very little evidence oí invention is required. Butliob, J., in Asmus v. Alden, 27 Fed. Rep. 681; citing Smith v. Goodyear Co., 93 IT. S. 186 ; Washburn & M. Mauuf’g Uo. v. JLaish, 4 Fed. li,ep. 907; Eppiiiger v. liichey, 14 Blatchf. 307; Isaac v. Abrams, 34 O. G. 862, (May 13, 1886.)</p> <p>The doctrine that independent evidence of invention, in addition to evidence of novelty and utility, is required to support a patent, reaffirmed in Yale Lock Manuf’g Go. V. Greenieaf, 117 XT. S. 554, S. C. 0 Sup. Ot. Rep. 846, (March 16, 1886,) and in Gardner v. Ilerz, 0 Sup. Ct. Rep. 1027, (May 10, 1886.) Giiabljos C. 'Lintiiioum.</p> <p>Chicago, July, 1886.</p>

<p>1. Patents por Inventions — Expiration—An aptat ion op Foreign Patent —When it will Expire — Clark’s Patent por Improvement in Corrugated Iron Shutters.</p> <p>A patent, which is a mere adaptation of a foreign patent expires in this country at the same time with the foreign patent, (16 St. at Large, 270; Rev. St. §4887;) and patent Ho. 137,596, dated April 8, 1873, for an improvement in corrugated iron shutters by applying soft material thereon to deaden sound, is amenable to this rule.</p> <p>2. Same — Improvement to Take Patent Out op Operation op the Statute.</p> <p>Clark’s patent, Ho. 137.596, dated April 8, 1873, for an improvement, in corrugated metallic iron shutters by the application of soft material to deaden sound, is an adaptation oí a foreign patent, and a slight modification therein, whereby such soil material is fastened at intervals, instead of at the ends only, is not such an improvement as to take the patent out of the operation of Í6 St. at Large, 270, (Rev. St. § 4887,) which limits its exclusive enjoyment by the American patentee to the time limited by the patentee abroad.</p>

<p>Patents fob Inventions—Infringement—Damages—Value of Patented Feature must be Shown.</p> <p>When, in a suit for infringement of a patent which covers only one feature of a machine, there is no proof that the profits made hy the infringer on the entire machine are due to the patented feature, only nominal damages can he allowed.</p>

<p>Motion by the Defendant for an Injunction.</p>

<p>1. Patents eob Inventions—Comefnation or Old Devices—Invention.</p> <p>Mangles "having a large feed-roll, surrounded by small polishing rolls, having differential speed, being old, and mangles employing the large roll as a polishing roll, and small ones as feed rolls, the latter having the same rate of speed, being also old, there was no invention in combining in a mangle a large roll for polishing, and small feed-rolls having differential speed.</p> <p>2. Same—Paetioulab Patents.</p> <p>Letters patent Ko. 253,661, of February 14, 1882, to Joseph F. Baldwin, for an improvement in mangles, are void for want of invention in the making of the device therein described.</p>

<p>Patents for Intention's—Novelty—Infringement.</p> <p>Letters patent Ho. 230,745, oí August 3, 1880, to Henry A. Church, for an ornamental chain composed of a series of rows of rings, united together hy passing1 connecting wires through orifices in disks or washers forming part of or secured within the outside rings of each alternate row, and securing the ends of the connecting wires within the edge of such outside rings, are valid, and infringed by the same combinations, notwithstanding the ends of the connecting wires are twisted to secure them, instead of clinched, as described in the patent.</p>

<p>1. Patents for Inventions—No. 141,926 Construed.</p> <p>Letters patent No. 141,926, of August 19, 1873, to Benjamin J. Greely, for improvements in suspenders, construed, and held, that if any invention is to he found in the patent, it is in the form of the pin, which is the subject-matter of the first claim.</p> <p>2. Same—Infringement.</p> <p>The question whether there is any invention in the pin described in the Greely patent, in view of the state of the art, not decided, but held, that this patent is limited to the form of the pin described, and, when so limited, not infringed by the defendant's construction.</p>

<p>1. Collision — Steamer and Schooner — Close Approach by Steamer to Schooner’s Course—Yawing— Change op Helm by Schooner—Apportionment.</p> <p>Where a steamer and a schooner were approaching each other, nearly head on, at night, in the Delaware river, and the steamer shaped her course so as to pass within 50 or 75 feet of the port side of the schooner, and when close together the schooner suddenly changed her course, probably to correct previous yawing, and ran into the steamer’s side, it was held that the schooner was in fault for her change of course, and that the steamer was also to blame for ber imprudent navigation in shaping her course so close to the course of the schooner.</p> <p>2. Same—Duty of Steamer to Keep Away by Reasonably Safe Margin.</p> <p>Reasonable prudence, and a due regard for the safety of life and property upon the water, demand that steamers, bound to keep-out of the way of sailing vessels, shall, when nothing prevents, keep away by a reasonably safe margin; and that any disregard of this obligation, without excuse, resulting in collision, shall be held a fault, notwithstanding a change of course by the other vessel.</p>

<p>Ships and Shipping—Liability op Yessel Owners — Receipted Bill—Es topped—Miseeeresentations oe Agent.</p> <p>An advance made by the owner oí a vessel to bis own agent, to reimburse bim for an alleged payment of a material-man’s bill, does not estop tbe latter from prosecuting bis claim against tbe former, unless bis connection with tbe misrepresentation of tbe agent can be shown. A receipted bill in tbe bands of tbe agent, not shown to bis principal, and who was not misled thereby, does not work as an equitable estoppel.</p>

The libelants claimed a lien under Pub. St. Mass. c. 192, §§ 14, 15, The claimants, the mortgagees, defenaod on the ground that the provisions of the act had not been complied with. It was admitted that no claim had been filed until more than four days after a trip to Lynn; but it was asserted that a trip to Lynn and return, completed on the same day, was not a departure from the port, within the meaning of the act.

<p>Demurrer to Bill of Complaint.</p>

Action to recover damages resulting to plaintiff from the defective manner in which the furnaces to the boiler of his steam-tug had been repaired by defendant. Defense was based on accord and satisfaction. Judgment for plaintiff, and defendant moves for a new trial, alleging that the jury was misdirected.

<p>Appeal — Bond—United States Scpjremje Ooiibt Rule 29 — Decree fob Money, WHEN NOT OtHEBWISE SECURED, WITIIIN THE MEANING OI’ THE TwENTY-Ninth Uhl®.</p> <p>The plaintiff's debtor, being the equitable owner of certain real property, procured the same to be convoyed to his brother, with the intent to thereby hinder and delay his creditors, and the grantee accepted the conveyance with knowledge of such intent. Afterwards the plaintiff, having obtained a judgment against his debtor, filed a bill in this court to subject this property, as an equitable asset in the hands of said grantee, to the satisfaction of his judgment, alleging the insolvency of the debtor, and obtained a decree thereon that the grantee pay the amount, of the judgment within a certain time, and that, in default of such payment, the property in question be sold to satisfy the same. Thereupon said grantee applied to have settled the amount of the supersedeas bond to be given by him on appeal from said decree, claiming that the decree was “otherwise secured,” within the meaning of rule 29 of the supreme court, and therefore the hond ought to be taken in an amount not more than sufficient to secure the payment of the costs. Held, that the money ascertained to be due the plaintiff by this decree is not “otherwise secured, ” within the meaning of said rule, and the amount of the bond is settled at $75,000,— the amount of the decree, with throe years’ interest thereon, and 10 per centum damages for delay, with the costs of the appeal, being about $55,000.</p>

In Equity. Complainant, as receiver of a national bank, exhibited his bill against the executor of a deceased shareholder, to reach assets, if any, in the hands of said executor, also against the executor’s wife, to reach her interest as residuary legatee, failing assets in the hands of her husband; and thereupon complainant sought to use the defendant executor as a witness, hut the latter declined to testify, for the alleged reason that his wife was an interested party.

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

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

<p>1. Patents nor Inventions—Machines for Cutting off Capsules.</p> <p>The first claim of reissued letters patent No. 10,437, of January 15, 1884, to Frederick A. Hubei, for a machine for cutting off gelatine capsules, is not infringed by a machine built under letters patent No. 305,867, of September 30, 1884, to 'William A. Tucker.</p> <p>2. Same—Reissue—Subcombinations—Diligence—Intervening Rights.</p> <p>Subcombinations, apparent on the face of, but not claimed in, an original patent, by inadvertence or mistake, can be introduced in a reissue if season able application is made therefor; but if application is postponed an unreasonable time, they become abandoned to the public, especially if the equitable rights of other parties have intervened.</p> <p>3. Same—Enlargement by Adding Element.</p> <p>Where, after an unreasonable delay, (five years,) a second reissue is applied for, in which another element is added to a combination described in a void claim in the first reissue, such added element making a different, and previously unclaimed, invention, the second reissue is an unwarranted enlargement, and is void.</p> <p>4. Same—Priority of Invention—Diligence.</p> <p>As between two independent inventors, each claiming priority of invention, the question of reasonable diligence is of prime importance, and if the first inventor postpones for an unreasonable period the practical embodiment of his mental conceptions, and his application for a patent, the consequences of his laches may he fatal.</p> <p>5. Same—Laches in Applying for Patent.</p> <p>That laches in applying for a patent, when there were no laches in otherwise perfecting the invention, may compel an inventor to he deprived of his patent, another inventor having meanwhile given the same invention to the public, is probably true.</p> <p>6. Same.</p> <p>When an inventor of a machine of an important character, who has been diligent in perfecting and reducing his invention to practice, and in attempts to bring his machine to the knowledge of the public, has merely paused, before applying for his patent, for a period of 19 months after completing his working drawings, and 10 months after completing his machine, it cannot be said there were such laches as should deprive him of the reward which ordinarily attends priority of invention.</p> <p>7. Sauk — Dei ay eoe Practicad Exmsrimeeít.</p> <p>A decision which would compel haste in applying for patents before actual practice had tested the truth of the inventor’s theory, and had overcome difficulties in the operation of the mechanism, would be productive of more in-jttrv than a decision which, while compelling diligence in perfecting the invention, was indulgent of some delay in seeking the patent-office.</p>

<p>1. Patents for Inventions—Injunction—Inventor Estopped to Dent Originality oe Ills Invention.</p> <p>Oil a motion for a preliminary injunction to restrain an inventor and assignor of letters patent from infringing them, he is estopped to deny that he was the first inventor.</p> <p>3. Same—Territorial Interests—Eights oe Owners oe.</p> <p>The owner of letters patent for two counties in Hew York would not have the right to manufacture the patented machines in Boston for use in Ohio.</p> <p>3. Same—Limitation oe United States Patent to Expire with Prior English Patent.</p> <p>The fact that United States patents are not limited upon their face to expire with the life of a prior English patent is not held, in the second circuit, to affect their validity.</p> <p>4. Same—Practice—Aeeidavits Piled Out oe Time not Considered.</p> <p>Where, by stipulation, the time within which evidence to show cause upon motions for preliminary injunctions was limited to expire on a certain date, and the hearing was to he had as soon thereafter as the court could give it, held, that affidavits filed after such date, without any stipulation or order of court permitting it, could not be considered.</p> <p>6. Same.—Matters oe Defense—Original, what are.</p> <p>That the patent sued on has expired by reason of the expiration of foreign p '.tents for the same invention, is an original defense, and should not be left to be introduced as surrebuttal.</p> <p>6. Same—Construction oe Claim—Infringement.</p> <p>A patent on a machine for making barrel heads from paper pulp contained a claim for “the combination of the piston, the resisting surface opposed to the piston, and the laterally removable matrix case, all substantially as described. ” The specification described the matrix case as made in sections, pivoted or hinged together. Held, that the hinged features of the matrix case were not a part of this claim, and that said claim was infringed by a combination of the same parts, operating in the same way, although the matrix cas6 was made of a single piece.</p>

<p>1. PATENTS FOB INTENTIONS—DAMAGES EOB INFRINGEMENT—ROYALTY—LICENSE Pee.</p> <p>Royalty paid by licensees for the right to use a patented invention is not evidence of damages sustained by the patentee by the sale of the patented article sufficient to authorize a recovery.</p> <p>2. Same—Rights under, Distinguished—Infringement of These Rights.</p> <p>The value of some patents consists principally in the right to use the invention; the value of others, in the right to sell; and infringement by selling and infringement by use of the patented article are essentially different invasions of the patented property.</p> <p>3. Same—Royalty for Exclusive License not Evidence of Damage by Occasional Sales.</p> <p>Royalty paid for the whole monopoly of selling and manufacturing under a jiatent is not sufficient evidence of the value of the right to make occasional sales in a particular territory. Le Bait, v. Hawlcins, 2 Barn. & Adol. 561.</p> <p>4. Same.</p> <p>An exclusive licensee may well afford to. pay a much larger consideration for the property right than the patentee could command from purchasers of a license to compete with other sellers.</p> <p>5. Same—License to Manufacture and Sell—Covenant not to Sue Pur- . CHASERS FROM LICENSEE.</p> <p>A covenant not to sue purchasers of the licensee, contained in a license to manufacture and sell a patented article, operates, by way of estoppel, to license the purchaser to use such article.</p> <p>6. Same.</p> <p>A covenant not to sue purchasers from a licensee having the right to make and sell a patented article is equivalent to a license to sell, and transfer to purchasers the right to use, the article.</p> <p>7. Same—Royalty Paid for such Right not Criterion of Value of Ordinary Selling Right.</p> <p>Royalty paid for a license to manufacture and sell, and containing a covenant by patentee not to sue purchasers from licensee, is not the criterion of value of an ordinary selling right, because the right to sell might be of insignificant value without such covenant.</p>

Heard upon two libels, the one in prize, the other for forfeiture for violation of section 5283, Rev. St. The United States cannot be required to elect one proceeding, and abandon the other. The vessel, if a prize, belongs half to the captors, and half to the United States. If forfeited under section 5283, the informers have a right to a moiety.

Reported 22 Fed. Rep. 668. Libel in rem, by the master of the canal-boat against a tug, for negligent towage. The service was undertaken by the respondent with some reluctance in consequence of danger from the ice. The libelant undertook to assume the risk, provided the tug would obey his directions.

In Equity. Upon a motion to remand to the chancery court of the city of Richmond, Virginia, whence the cause was removed by writ of cer-tiorari awarded by this court, June 23, 1886. The facts are fully stated in the opinion of the court.

<p>Suit for an Account and an Injunction.</p>

The Peoria, Atlanta & Decatur Railroad Company was incorporated, under a special act, in 1869. In 1872 it issued bonds to the amount of $1,300,000, and secured the same by a trust deed on its franchises and property, including its railroad from Peoria, Illinois, to Decatur, Illinois, to James H. S'eeor, trustee. The Paris & Decatur Railroad Company was incorporated, under a special act', in 1861.

<p>Principal and Agent — Rights'op Agent against Principal — Action upon Violated Contract — Unauthorized Sale oe Property.</p> <p>Where a principal entered into a contract with an agent, by the terms oí which the agent agreed to purchase, hold, and cany grain i'or him, the principal agreeing to pay commissions, and to furnish said agent, from time to time, such slims of money as margins as would enable him to hold his purchases, aud secure him from loss by depreciation of the market, and said agent sold, without notice or demand for margins, all grain held by him for the principal, the agent cannot recover his commission and advances in an action upon the contract, even subject to the principal’s right to recoup damages.</p>

Action for Damages. This case, by stipulation, was tried before tbe court without a jury. The facts are stated in the opinion.

<p>1. Patents for Inventions—Combinations of Old Devices.</p> <p>Anew combination of old parts, for attaining an object, may sometimes, and perhaps often, be so obvious as to merit no title to invention.</p> <p>2. Same—Invention—Novelty and Utility.</p> <p>While, in ordinary cases of new combinations of old parts for attaining an object, novelty and utility are evidence of invention, there should be other evidence to show that it exists.</p> <p>3. Same — Intention—Evidence oe.</p> <p>Evidence of invention, in addition to novelty and utility, may often be found in tbe machine itself, -which shows that it came from a creative mind, or the necessary evidence may sometimes be found in the history of the invention.</p> <p>4. Same — Invention—Kestji/t as Evidence oe.</p> <p>In this case the patentee accomplish ed a new and beneficial result, by means which others had been near to, and apparently wanted to find, but did not see. Held, that he was entitled to be styled an inventor.</p> <p>5. Same — No. 271,398 — Machine for Mincing Meat.</p> <p>The first and second claims of letters patent No. 271,398, of January 30,1883, to John G. Baker, for a machine for mincing meat, considered, amd7iáí<2 not infringed by the defendant’s machine, patented in reissue letters patent No. 10,717, of April 17, 1886, to John H. Shaw.</p>

<p>1. Patents for Inventions—Construction of Claims.</p> <p>One claim of a patent should not be so construed as to render another claim of the patent meaningless. ,</p> <p>2. Same.</p> <p>The first claim of the patent was for certain elements in combination with “suitable gearing,” and the second claim embraced the same elements in combination with “cog-gearing.” 'Held, that the first claim embraced any suitable gearing which might be employed as a substitute for the cog-gearing described in the second claim</p> <p>3. Same—Anticipation—Burden of Proof—Presumption of Originality.</p> <p>The burden of proof of anticipation is on the defendant, who, to repel the presumption of originality arising from the patent, must remove all reasonable doubt respecting the fact of anticipation.</p>

<p>1. Patents eor Inventions—Invention—Imiuiovemunt, Scope of Patent eor.</p> <p>Where an invention is of an improvement upon a pre-existing machine, a patent for such invention covers only the particular improvement.</p> <p>2. Same—No. 824.261, Construed.</p> <p>Letters patent No. 324,261. of August 11, 1885, to Allen Johnston, for a ruffling oi gathering attachment for sewing-machines, is for an improvement merely on a pre-existing machine, and while apparently good for its mechanism, it does not appear to he good beyond that.</p> <p>3. Same—Acquiescence—Construction—Puemmtnary Injunction B,reused.</p> <p>A oatent which had been issued less than a year, held too recent to have acquired any settled construction by acquiescence, and, it never having received any construction by judgment or decree, and its construction being doubtful, a preliminary injunction to restrain the use of different mechanism, alleged to infringe, refused.</p>

<p>1. Patents fob Inventions—Reiieaiung Denied.</p> <p>On motion lor rehearing, the former opinion (26 Fed. Eep. 692) reiterated, and a rehearing denied.</p> <p>2. Same—Invention.</p> <p>The prior decision proceeded upon the belief by the court that the process of the patent in suit (No. 166,366, of October 27, 1874-, to John W. and Isaiah Hyatt, for an improvement in the manufacture of celluloid) produced a marked and beneficial change in the character of the product, and that the change was so great there must necessarily have been a material modification of the pre-existing process.</p> <p>3. Same—Invention.</p> <p>Whore the history of the improvement demonstrated that for nearly 20 years inventive skill of no ordinary character, and of different persons, had boon most earnest and persevering in the effort to produce such improvement, the patentability of the improvement when produced cannot be doubted.</p>

<p>1. Maritime Lien—Supplies and Repairs—Foreign Port.</p> <p>A New Jersey corporation owned the steamer Mary Morgan, which was registered at the port of Philadelphia, and ran between there and Wilmington, Delaware, touching at Bridgeport, New Jersey, and Chester and Marcus Hook, Pennsylvania. The president, secretary, and treasurer of the company resided at Chester, where the repairs were made and supplies furnished under a contract with the president. Held that, as the repairs were made and the supplies furnished under a contract with the owner, the presumption was that the credit was given to him personally, and in the absence of proof of an express lien, none will be given.</p> <p>2. Same—Note in Payment.</p> <p>When a note has been taken in payment for repairs to a vessel, and judgment had thereon, and the vessel has been taken in execution under that judgment, and sold for less than will satisfy it, there can be no lien against the vessel for the balance.</p> <p>8. Same—Debts Contracted by Qwner.</p> <p>Semble, that implied liens for supplies and repairs to vessels have not been extended to debts contracted by the owner, saving, perhaps, in exceptional cases, where it appears that the circumstances are such as to forbid absolutely the presumption that the debt was contracted without a pledge of the vessel.</p> <p>4. Same—Corporation, when Foreign.</p> <p>Quaere, would a corporation, chartered in one state, with a view to transacting business in another, having its property, office, and officers all there, be, in the sense involved, foreign to the latter state?</p>

Reported 23 Fed. Rep. 826. Libel in rem by a shipper, for damage to cargo while being transported in lighter to the vessel’s anchorage. The issue involved two questions: (1) Whether the accident was occasioned by the negligence of the lighter, or by perils of the sea; (2) whether the steamship was responsible for the negligence of the lighter.

<p>Forfeiture. Petitioners in person.</p>

The above eases are submitted to the circuit judge as alike in all particulars, the judgment in one to be the judgment in all, and exceptions and answers and agreed statement of facts are the same in all.

<p>Motion to Remand.</p>

<p>1. Costs — In Equity — Rehearing on Merits — Dockist Fee.</p> <p>Whore a cause in equity is heard and reheard on the merits, two docket foes are taxable in favor of the prevailing parly.</p> <p>2. Depositions — Costs—Solicitor’s Fee.</p> <p>Where depositions are taken in one equity cause, and are afterwards, by stipulation, used in the same and also in other causes, but one solicitor’s fee can bo taxed therefor, and that in the suit where such depositions were originally taken.</p>

<p>Evidence — Materiality.</p> <p>Order filed compelling the witness, wife of the executor, trustee, etc., to make a disclosure as to the assets of the estate, the evidence contemplated being material, within the scope of the bill. '</p>

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

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

<p>1. Mandamus — Jurisdiction of tub Circuit Court — When Given.</p> <p>The United States circuit court has no jurisdiction to entertain an application for a mandamus, originally presented therein, except as ancillary tc some other proceeding establishing the demand, and reducing it to judgment, and in the nature of process for executing such judgment.</p> <p>2. Same — Jurisdiction — Kemovad from State to United States Courts — Construction of Act of Congress of 1875, §§ 1, 2, 716.</p> <p>Jurisdiction of a writ of mandamus cannot be conferred upon the United States circuit court by commencing the proceeding in the state court, and then removing it to the United States circuit court, under the act of congress of 1875.</p> <p>3. Same — Act of Congress of 1875, §§ 1, 2.</p> <p>A mandamus is not “a suit of a civil nature, at law or in equity,” within the meaning of the act of congress of 1875.</p> <p>4. Same — Code Cad. §§ 1034, 1086.</p> <p>Under the California Code a mandamus is not regarded as an action at law or a suit in equity, in the ordinary sense in which those terms are used; hut as a special proceeding to afford a remedy where there is not a plain, speedy, and adequate remedy “in the ordvna/ry course of law.”</p>

At Law. Motion to set aside summons. This is an action on the official bond of a former postmaster against the principal and sureties.

<p>Motion for New Trial.</p> <p>Action to recover damages from a corporation for injuries caused a laborer by a fellow-servant in its employ.</p>

<p>1. Damages — Evidence op — Variance between Pleading and Evidence, when Admissible — Code N. Y §§ 544, 589.</p> <p>Evidence of damage accruing after the commencement oí the action, and before the time of trial, is admissible when it has not misled the adverse party.</p> <p>3. Same — Injury to Property — Evidence—Question por Jury.</p> <p>In an action for damages for the erection of a building in front of a banking-house, it may be submitted to the jury to lind how much less that part of the building used for banking purposes was worth as a bank on account of said structure.</p> <p>S. Light — Easement in — Obstruction of Light by Erection op Building.</p> <p>It is not error to exclude evidence to show that, if the buildings on the opposite side of the street from plaintiff’s building were raised as high as the law and ordinances of the city allow, defendant’s structure would not intercept any direct rays of the sun towards plaintiff’s building.</p> <p>4. Evidence — Iíelevancy.</p> <p>Where the question submitted to the jury was as to injury to the use of a building during a certain time, caused by the construction of a railroad, evidence to show that the general value of the building was increased thereby is not admissible.</p>

<p>Patents for Inventions—Horse-Nail Machines.</p> <p>Letters patent No. 172,660, of January 25, 1876, to Robert Ross, for an improved machine for the manufacture of horse-nails, considered, the seventh and eighth claims thereof construed, and the former found to be infringed.</p>

<p>Ships axd Siiippixo — Pkovisious Fubsishep toVesseu IIei/d for Piracy.</p> <p>Fxpunsos for provisions provided passengers and crew detained on board a vessel under seizure, after arrival in port, and before service of attachment under libel for forfeiture, allowed against the vessel.</p>

<p>Collision—Negligence.</p> <p>Tlie steamer Algiers and the schooner William J. White were sailing on convergent courses. The steamer’s was N. N. E.; the schooner’s N. W., or somewhat to the northward of that. The steamer’s head-light and signal lights were set, and burning brightly. The officers and seamen were on the lookout and watchful. The schooner’s side lights were burning brightly, but were set in the curve of her bow, and did not throw her light abaft the beam. Her binnacle was on the top of the cabin, and a white'diglit therein was visible, within an arc of 22 deg. 3 min. to a vessel off her port quarter. The first mate and two seamen were on duty, one of them at the lookout. The schooner’s side lights were seen by no one on hoard the steamer. A white one, however, was seen. The steamer’s lights were seen by those on the schponer for a long time before the collision, but no precautions were taken to attract her attention. A torch kept for that very purpose was not lighted. The schooner was not noticed until too late to avoid a collision. Held that, having proved vigilance, negligence could not be inferred from failure to see a light, and that the schooner was in positive fault in failing to light.and exhibit the torch, as the law required her to do, when she knew the steamer was approaching on a course which crossed her own.</p>

<p>'Charter-Party—Ship-Brokers.</p> <p>A. & Co. were the ship’s agents at New York. They, through H. & M., ship-brokers in Philadelphia, applied to C. & Co. for an otter. Terms were agreed upon, and put in writing. The charter-party was then read over by the agent of C. & Co., and marked, in order that any member of the firm might know it was all right, and sign it without reading it through. It was then handed to H. gs M., who sent it to A. & Co. for execution. A. & Co. made an alteration in it, signed it, and returned it to H. & M. with instructions to call C. & Co.’s attention to the alteration. H. & M. took the charter-party to C. & Co., and left it with a clerk, but said nothing about the change. One of the firm, relying upon the mark, signed the charter-party without noticing the alteration. Soon after C. & Co. learned of the change, and immediately refused to be bound by the charter-party. Held, that H. & M. were the agents of the ship, not of C. & Co.; that their default or fraud was imputable to their principals; and that the charter-party could not be sustained.</p>

Admiralty Appeal. The decree of the district court in the same case (18 Fed. Hep. 556) reversed. Two actions — one that of 'Luigi Pirandello, the charterer, against the vessel, for damages for breach of charter, and the other that of the Fratelli Savarese, owners of the vessel, against the cargo, for balance of freight money — were consolidated and tried together.

Admiralty Appeal. The decree in the district court in the same ease (24 Fed. Eep. 495) reversed in so far as it held that the Frisia was not in fault.

<p>1. Collision—Damages.</p> <p>A vessel rightfully occupying a position in a dock, to which she has been, assigned by the superintendent, is not responsible for damages suffered by another vessel which retained her position after she was bound to change it, and could have done so with safety. That this change of position must have been effected at night is no excuse, because mere inconvenience does not constitute a sufficient reason for assuming an avoidable risk.</p> <p>2. Pout Regulations.</p> <p>Port regulations, when made by a competent tribunal, suchas the port-wardens of the port of Philadelphia, are binding upon all parties; and when their observance is practicable, and does not involve any serious or unusual temporary danger, obedience to them is imperative.</p>

<p>1. Courts — United States Courts — Jurisdiction.</p> <p>A circuit court of tlie United States, since the passage of the act of 187!), has original jurisdiction over all cases where a United States law, whether constitutional or congressional, is involved.</p> <p>2. Same — Federal Question — State Constitution — Provision Practically Impairing a Contract.</p> <p>A provision of a state constitution limiting the rate of taxation to a ligure so low as to necessitate the breach of a contract for the payment of money, previously made by the taxing power, may be contested in a federal court as involving a question under the constitution of the United States.</p>

<p>1. Equity—Jurisdiction—Adverse Legal Titles to Laud.</p> <p>A court ol equity has no jurisdiction to decide a conflict between adverse legal titles to real estate, in which complainant has a complete and adequate remedy at law.</p> <p>2. Lis Pendehs—1Tiubd Persons.</p> <p>The law is that he who intermeddles with property in litigation does it at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party to it at the outset. Tilton v. Co-field, 93 ’IT. S. 168.</p>

<p>Equity — Pleading—Cross-Bills.</p> <p>A cross-bill will not be sustained when the relief sought is not founded upon the allegations of the original bill, and when the facts are merely such as to authorize a recovery of damages for which there is an adequate remedy at law.</p>

<p>Suit to Enforce the Lien of a Mortgage.</p>

<p>1. Equity — Statute oe Limitations.</p> <p>The rule established by the decisions of the supreme court, as to the eifect of statutes of limitations in courts of equity, appears to be that, in those states where the statutes of limitations are made applicable to suits in equity, as well as to actions at law, and they embrace in terms the specific case, aiid in cases of concurrent jurisdiction, they are as obligatory, as sueh, upon the national courts of equity as they are upon the state court, and as they are in actions at law; and the courts of equity should act in obedience, rather than upon analogy, to them. But where they are not applicable to equity cases in the state courts, and there is not concurrent jurisdiction, and where the specific case is not covered in terms by the statute, then the time prescribed by the statute of limitations will ordinarily be applied by analogy, in accordance with the provisions most nearly analogous and applicable.</p> <p>3. Same — Limitations as to Action eor Eraud.</p> <p>In providing for actions for relief on the ground of fraud, the legislature carried into the provision the principle established by courts of equity, that the cause of action shall not he deemed to have accrued until the “discovery of the facts constituting the fraud;” and to ascertain what conditions constitute a discovery, within the meaning of the provisions, the principles established in equity law, whence the idea was derived, must he applied..</p> <p>3. Same — Diligence—Means of Knowledge.</p> <p>The established principles as to the discovery of fraud are that the party defrauded must he diligent in making inquiry; that means of knowledge are equivalent to knowledge; that a clue to the facts, which, if diligently followed, would lead to a discovery, is, in law, equivalent to a discovery.</p> <p>4. Same — Imbecility from Injuries as an Excuse for Mon-Action.</p> <p>Conceding imbecility resulting from a serious injury upon the head to be a sufficient excuse for not discovering the facts constituting the frauds while such imbecility continues, the party must act as soon as his imbecility ceases, or he will be deemed to have the knowledge which he might have obtained by the exercise of proper diligence.</p> <p>5. Same — What Facts Constitute Means Of Knowledge, which the party is bound to pursue, pointed out, in a case where the title to large estates are alleged to have been fraudulently obtained by defendants.</p> <p>6. Same — Multifariousness considered.</p>

<p>On Motion for Injunction Pendente Lite.</p>

<p>Municipal Corporations — -Bonds Issued for Work Done — Liability to As-signee in Absence of Power to Issue Commercial Paper.</p> <p>Under a poweryesled by statute in a municipal corporation, whereby it may contract for the making of public improvements, and issue its bonds in payment for tlie work performed, a bond so issued for work actually done becomes a voucher or evidence of indebtedness to that extent, and may be recovered upon by an assignee in good faith, even though such corporation had never been specifically empowered to issue negotiable paper.</p>

<p>BANKS ANT) BANKING — NATIONAL BANK — LIABILITY OR SlIARRirORDRBS — Assuss-MKNT — TRANSEIS» OR STOCK.</p> <p>When bank stock was sold, but not transferred on the books of the bank, and the bank afterwards failed, the executors of the person in whose name the stock stood on the books were held liable for assessment, although said stock liad been paid for by a purchaser buying at the request of the president oí the bank, who gave him a cashier’s check for that purpose, placing the money so furnished to the credit of said purchaser on the books of the bank as a temporary loan, the intention being ultimately to transfer said shares to a third party,- as part of a larger proposed investment in stock, for which funds had been placed in the hands of the president of the bank.</p>

Clerk’s report of taxation of costs after judgment for the United States in an action at law brought by them for money had and received. The bill of costs submitted by the attorney for the United States included the following items, duly certified, of sums paid to witnesses: First.

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

<p>1. Opium: — Illegal Sale — Constitutional Law — Title anb Subject of Act.</p> <p>The subject of an act which forbids the sale or gift of opium to any one but a druggist or practicing physician, except on the prescription of a"practicing physician, is ¡sufficiently expressed in the following title: “An act to regulate the sale of opium, and suppress opium dens. ”</p> <p>2. Same — Effect of Act.</p> <p>Such act does not prohibit the disposition of opium, and thereby destroy its value as a medicinal agent, that being the only use of the drug which is generally considered proper in this country.</p>

<p>Salvage—Allowance.</p> <p>Compensation allowed for salvage services rendered to a vessel aground on tlie Florida reef.</p>

<p>Salvase—Breach of Contract bt Vessel.</p> <p>A vessel, by breach, of her contract with another vessel, having contributed to put the latter vessel in danger and peril, cannot and ought not to be compensated for services, although otherwise salvage services rendered in aiding to rescue her.</p>

<p>In Admiralty. Libel for damage to cargo.</p>

In Admiralty. This was the case of a collision between the schooner Mary Malhe-son, which was bound on a voyage from the Potomac river to New ITaven, Connecticut, and the steam-ship Kanawha, bound from New York to Newport News. The collision occurred near the Scotland light-ship.

<p>Collision—Steamer, and Schooner in Tow—Sudden Sheer—Liability.</p> <p>The steam-boat Richmond, having collided with a schooner in tow of the tug Kalbfleisch, and suit being brought in consequence by the schooner against both the steamer and the tug, held,, that the weight of evidence indicated that the^Richmond caused the collision by suddenly sheering in an attempt to go to "the starboard of the tug, after having signified her intention to go to port; that libelant should therefore recover of the steamer, and the libel against the tug should be dismissed.</p>

<p>Collision—Negligence—Defective Lights—Damages.</p> <p>The steamer Mary Morgan, with her lights set and burning, was passing down the Delaware river at night. It was somewhat dark, and the tide was at ebb. A single white light was seen, which was supposed to be on a vessel at anchor. This was a mistake, however, as the light was on the barge Pierrepont, which was coming up the river on a course which was virtually that of the Morgan. The Pierrepont’s side lights were up and burning, but were in bad condition.- She saw the Morgan, but did not signal her until the vessels were too close to avoid a collision. Meld, that the Pierrepont was in fault in not having her lights in proper condition, and in failing to give a timely signal; that the Morgan was in fault in concluding that the Pierrepont was at anchor, and in continuing to act upon that conclusion when they were near enough to have, by the exercise of a proper degree of vigilance, discovered her error; and that, as both vessels were culpable, each was liable for its proportionate share of the accruing damage.</p>

<p>CARRIER—Oe Goods by Vessel—Freight.</p> <p>The ship Syskonen received a cargo under bills of lading which provided for its delivery to “order or assigns, he or they paying the freight.” A. & Co. contracted with 1!., an indorsee of the bills of lading, for the cargo, agreeing to pay the stipulated price on delivery to them. The cargo was delivered into lighters belonging to A. & Co., who receipted to the ship for it. Payment of the freight was sought of B., but failing in this, and iindingkim probably insolvent, recourse was had to A. & Co. Hold that, as A. & Co. wero neither assignees of the bills of lading nor owners of the cargo until after delivery, they were not liable for the freight, and that the bill must be dismissed, with costs' to respondents.</p>

<p>Admiralty Appeal.</p>

<p>Motion for Order to Suspend Proceedings to Sell Land under Fi. Fa.</p>

<p>Jurisdiction—Trustee’s Account.</p> <p>The United States circuit court has jurisdiction to compel a trustee, under a will, to account at the suit of a beneficiary not a citizpn of the state in which the trustee is domiciled.</p>

<p>1. Railroad—Mortgage—Foreclosure Suits—Interrogatories.</p> <p>Interrogatories filed in a foreclosure suit, instituted by. mortgage bondholders of a railroad company, respecting the acts, plans, intentions, or papers of companies or organizations formed for the purpose of buying the road, should it be offered for sale, are irrelevant.</p> <p>3. Same—Combinations to Purchase or Reorganize.</p> <p>Companies and organizations, when legal and proper, formed to buy and reorganize larger properties, such as a railroad, are to be promoted, because they are necessary to create competition, and prevent great sacrifice and loss.</p> <p>3. Equity — Exaiunetí—Witnesses.</p> <p>Witnesses before an examiner will be compelled to answer, wlien it seems probable the testimony may be relevant; but care will be exercised to avoid unnecessary and improper inquiry into private affairs.</p>

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

<p>1. Mortgage — Foreclosure—Defense or Usury.</p> <p>The defense of usury against a bill to foreclose a mortgage failed, where the complainant was a bona fide purchaser before maturity, and the defendant a subsequent grantee from the mortgagor, holding under deed stipulating for payment by her of the mortgage.</p> <p>S. Statute of Limitations —Mortgage—Provision eor Default inpayment of Interest.</p> <p>A provision in a mortgage that, upon default in the payment of interest due on any of the notes secured thereby, the entire debt shall immediately become due and payable, does not, of itself, cause the notes to mature so as to start the running of the statute of limitations.</p> <p>3. Mortgage — Dormer Adjudication as Defense to Foreclosure.</p> <p>Former adjudication cannot be pleaded against a bill to foreclose a mortgage, whore,'long after the purchase of the notes and mortgage by the complainant, the defendant commenced an action against the original mortgagee, obtained service by publication, and took a default and a decree annulling the mortgage, although no assignment of the mortgage to the complainan t had yet been recorded.</p>

<p>Equity— Creditors’ Bile — Costs—Husband and Wife — Conveyance ouHome-stead PitOrBIlTY.</p> <p>Where a wife joined her husband in the mortgage of store property, to one-twentieth of which she held the legal and equitable title, hut previously required him to convey to herself several pieces of property, one of which was the west half of the block occupied by them as a homcslead, as consideration therefor and on the ground that her husband received from her father after her marriage considerable money used in the building of the store, and the judgment creditors filed a bill as complainants to set aside said conveyance of the'husband to the wife, field that, under the peculiar circumstances of this case, the conveyance be sustained as to the homestead, and be decreed void as to the remainder of the property; that each party pay the costs of its own testimony, and the other costs of the case go against, the defendants.</p>

<p>1. Discharge of Surety by Extension of Time to Debtor.</p> <p>What constitutes an extension of time by a creditor so as to discharge a surety considered, and the former ruling in this case adhered to. 28 Eed. Rep. 17.</p> <p>2. Statute oe Limitations.</p> <p>A mortgage given to secure a note is a mere incident thereto, and a payment on the latter which has the effect to prolong the time within which a suit may be brought thereon has the same effect on the former.</p> <p>3. Same.</p> <p>Payment on a debt evidenced by a note and secured by a mortgage, under section 25 of the Code of Civil Procedure, is a payment on the latter as well as the former, and marks the point 'of time in the one case as well as the other from which the statute of limitations runs.</p> <p>4. Surety.</p> <p>A mortgagor of property to secure the note of another is so far a surety for such other, and a payment by the maker of the note has the same effect on ' the mortgage as if the mortgagor was a joint maker of the note.</p>

<p>1. Malicious Pkoseccjtiok'—Palsk Impiusosmest.</p> <p>To sustain an action for malicious prosecution it must appear that the prosecutor was actuated by mslice, without probable cause; and to sustain an action for false imprisonment it must appear that he was guilty of some improper conduct connecting him with the unlawful arrest.</p> <p>2. Same—“Wakkakt—Who Liable Whisk Ejbuojsteously Tssubd.</p> <p>If the offense charged is of a public nature, and a justice, through error of judgment, issues a warrant when none should issue, or an erroneous warrant in substance or form, the error is his alone; but if the object in view is the protection or enforcement oí a statutory private right, and a warrant is procured where none is authorized, and an arrest made, the individual procuring it, and all others participating, are hold responsible.</p>

<p>Attachment — Priority—Absconding Debtor — Agent.</p> <p>Where a firm agreed with an agent to apply the first moneys collected from the property of an absconding debtor in payment of a joint note from the agent and said debtor, wbo had been in partnership, in consideration of releasing' the agent from any partnership liability, while he agreed to allow the firm to make their claims against the debtor prior and superior to his own, hold, that the agent thereby granted to the firm priority of lien on property attached by him for their benefit, although he had himself a good equitable lien on the same property, previously given to secure him for money he had put into tlie partnership.</p>

<p>Attachment — Exemptions—Money Collected by Marshal.</p> <p>Money collected "by a United States marshal on an execution issuing out of the United States circuit court, and held by him as trustee of the defendant, is not subject to attachment.</p>

<p>Appeal from the District Court.</p>

<p>Customs Duties—Act op Congress oe March 8, 1883—Schedules K and S Construed.</p> <p>Schedule K, § 2502, of the act of congress of March 3, 1883, imposes a duty of 35 per centum ad Mfcrmupon “ all manufactures of wool of every description, made wholly or in part of wool, not specially enumerated or provided for” in the act. Schedule S imposes a duty of 50 per centum ad valorem upon “all goods, wares, and merchandise made of silk, or of which silk is the component material of chief value. ” Held, that the two phrases must he construed as if standing together, and are to be read thus: All manufactures of wool of every description, not especially enumerated or provided for in this act, shall he subject to a duty of 35 per cent, advaforem; hut if silk is the competent material of chief value, they shall he subject to a duty of 50 per cent. ad valorem.</p>

<p>1. Patents for Inventions—Patentability—-Invention.</p> <p>Improvements, although new and useful, are not necessarily or prima facie inventions; they may or may not be patentable.</p> <p>3.Same—Presumption of Patentability—State oe the Art.</p> <p>The state of the art being shown, the jury is not bound by any presumption of patentability arising from the patent.</p> <p>3. Same—Scope of Patent for Improvement.</p> <p>Where the state of the prior art is such that the field of invention is limited and circumscribed, not admitting of great original discovery, a patentee must be confined strictly to the claim he makes.</p> <p>4. Same—Patentability—Change of Location.</p> <p>The mere change of location of the parts of a mechanism, so long as no different or additional function is introduced, is not patentable.</p> <p>5. Same—Double Function.</p> <p>Change of location of parts, whereby one of the parts transposed is made to perform a double function, is not patentable if such part had been before used to perform the same functions separately.</p> <p>6. Same—Anticipation—Prior Publication—Function of Jury.</p> <p>It is for the jury to determine whether prior publications offered in evidence to defeat a patent describe the improvement claimed.</p> <p>7. Same—Requisites of Prior Publication to Defeat Patent.</p> <p>A description in prior publications, in order to defeat a patent, must be in such terms as would enable a person skilled in the art to make, construct, or practice the invention as he could from a prior patent, or from the patent sought to be defeated.</p> <p>8. Same—Substitution of Mechanical Devices.</p> <p>The substitution for two catches of a hinge and catch, to secure a lantern top to the guard, the several parts being old, required no invention, but simply mechanical skill.</p> <p>9. Same—Anticipation—Prior Patent to Same Inventor—Abandonment.</p> <p>A patentee cannot claim the same thing described by him in a prior patent in which there is no reservation, and what he omitted to claim and reserve in such prior patent he dedicates to the public.</p> <p>10. Same—Identity of Patents, how Determined.</p> <p>Whether two patents of different dates, to the same inventor, cover the same thing, must be determined by the scope of the claim in the later patent, rather than by the description in the specification.</p> <p>.11. Suni — -Damasks for Tnv«iní¿k>iemt — tanwvsE Rues'.</p> <p>To furnish a measure of damages for infringement of a patent, license fees must l)e sufficient in number "to establish the foe or royalty charged for the use of the patent as its market value, and must also he uniform, and be actually paid or secured before defendant’s infringement was committed.</p> <p>13. Samis — Licensr IT whs won Several Patents not Evidence of Value of One.</p> <p>License fees blended for the use of two patents will not establish a royalty as to -;ither separately. The royalty must bo for the use of the identical patent in controversy, and Cor that, alone, in order to fix the market value, and reader it the established license foe.</p>

<p>1. Patents for Inventions — Reissue 4,091 — Grain-Dritas.</p> <p>Claims 12 to 15 of reissue letters patent No. 4,091, to. Thomas, Mast, and Gardiner, improvement in grain-drills, considered, and held that, while the device covered hy these claims may have been an improvement upon the ruder devices of earlier patents, the changes necessary to make it were purely mechanical, and did not involve invention.</p> <p>2. Same— Construction of Claim:.</p> <p>The claim of letters patent No. 97,817, to J. S. Rowell, for an improvement in grain-drills, reads: “The sliding shell-cylinder, O, constructed with radial slots, and arranged upon the feed-cylinder, F, and shaft, B, so that the adjustment is effected hy the horizontal movement of the shell-cylinder, O, while the feed-wheel. F, remains stationary as regards the case, H, M. ” Held, that a ledge or offset, which was the “M” of the claim, was not an element or part of the claim.</p> <p>8. Same — No'. 157,478 — Gratn-Diulls.</p> <p>Letters patent No. 157,478, to P. P. Mast, for an improvement in grain-drills, construed, and, in view of tlie prior state of the art, held, that there was no patentable novelty in the device set out in said patent.</p>

<p>1. Patents fob Inventions—-No. 247,032, Button Fasteners.</p> <p>Letters patent No. 247,032, of September 13, 1881, to Farnsworth and Robinson, for a now mode of attaching' buttons to garments, and a device for accomplishing the same, sustained, none of the prior patents containing the essential features of this invention, which comprises a malleable tack, passed through the garment, and clinched through the eye of the button by means of a clinching device.</p> <p>2. Same — Infringement.</p> <p>A mere change of position of tlie button, or the fact that the tack is not bent before passing through the eye of the button, not material, nor sufficient to evade infringement of this patent.</p> <p>3. Same — Joint Invention.</p> <p>Upon the evidence, held, that it was not shown, with sufficient clearness and certainty to overthrow the patent, that the improvements covered by it were not the joint invention of Farnsworth and Barnes, as stated in the patent</p>

<p>Collision—Fkkby Slip—-Tug and Ficjuiy-Boat — Duty to Yield the Brcurr of Way.</p> <p>The tug W., with a schooner in tow, in passing up the Jersey shore, went opposite and near to the Oonununipaw ferry slips, so as to obstruct the entrance of the ferry-boat F., which was approaching her slip, and was about one- quarter of a mile distant. Both kept on, and the ferry-boat collided with the schooner at the upper end of the slip. Held, that both were in fault: the tug, for not keeping out of the way, as she might have done, having the ferryboat on her starboard hand; the ferry-boat, because the course ana intent of the tug were apparent, and her timely signal of two whistles, indicating her intent to cross, ought to have been perceived by the ferry-boat, and because she had no right to persist in her course at the expense of collision, when she might have avoided it after the tug’s intent was clear.</p>

<p>COLLISION- — LrABTLITY of MUNICIPAL CORPORATION FOR DAMAGE DONE BY TCK-Boat in IIendeuino Gratuitous Service to Another Vessel.</p> <p>An ice-boat, maintained by the city of Baltimore to free the harbor from obstructions, and to aid the commerce and navigation of the port, came into collision with a British steamer anchored in the harbor. Ihld, that the iceboat was in fault, and that the owner, although a municipal corporation, was liable in personam. Held, following The Fidelity, 16 Blatchf. 569, that public policy required that the city should not be deprived of the use of the ice-boat, but that the fact that no lien could attach to the offending boat furnished no ground for denying the remedy against the city in ‘personam.</p>

<p>1. COLLISION—Tun and Tow.</p> <p>The tug Wolverton, with a tow, was on her way from Brooklyn to Jersey City. She was coming down the Bast river, keeping as close to the New York docks as she could go with safety. The tug Packer, with libelant’s barge in tow. was coming tip, and, when several lengths from the Wolverton, signaled her intention to go to the left, and, without waiting for an answer, changed her course, and attempted to cross that of the Wolverton. Held that, as the Wolverton was as near the docks as she could safely g'o, it was the duty of the Packer to keep outside of her, and that, in crossing her course, she took the risk of injurious consequences.</p> <p>2. Evidence—Weight—Record oe Another Court.</p> <p>The record and opinion of another court will not be given authoritative • weight in considering the evidence presented in a case, or against any conclusion of fact fairly deducidle therefrom.</p>

<p>Maritime Lien—Owner’s Contract eor Supplies.</p> <p>The steam-ship Norman, an American vessel, registered at New York, was chartered to A. & Co., of that city, who agreed to place her under foreign register, and to pay the expenses of victualing, manning, coaling, oiling, and running the ship, she to he at their sole use and disposal during the voyage. Possession of the ship was given to the charterers at New York, and there, on their order, the coal in question was furnished and delivered to the ship. The master and engineer had nothing to do with the purchase. Held that, conceding that the ship, by reason of her foreign register, was in a foreign port, as the liability sought to be imposed was not created by the act or engagement of the master in his character of master, there could be no lien; and that as the coal was furnished upon the order of A. & Co., who were residents of the place where the vessel was at the time, and owners pro liae mee, the presumption was that the coal was furnished upon the personal credit of the charterers, and not upon the credit of the vessel.</p>

<p>Appeal in Admiralty. Suit for half pilotage.</p>

<p>On Motion to Postpone Argument of Demurrer.</p>

These were two suits begun in the state court, and removed to this court. The summons in each case was served on the defendant personally at Milwaukee on the twenty-eighth day of October, 1885.

<p>Appeal from Taxation of Costs.</p>

<p>Attachment — Liens—Priority—Suits Removed from State Court.</p> <p>Where a defendant removed into the federal court several attachment suits commenced against him by several plaintiffs in two state courts, held, that the rule of distribution and of the priority of the liens would be the same as it would have been had judgments been entered in the state courts.</p>

<p>1. ARBITRATION — ENFORCING AWARDS — DEGREE OF CERTAINTY REQUIRED - Judgment.</p> <p>Judgment cannot be rendered on an award which does not fix’with certainty the amount to be paid, or give precise data from which the amount can be ascertained.</p> <p>2. Same — Arbitrators—Uncertainty in Award — Evidence.</p> <p>Arbitrators cannot be called upon for the purpose of explaining anything vague and uncertain in their award.</p>

<p>1. Statute of Limitations — Statute Not Applicable to Judgments in Court of Record — Second Section of Illinois Act of April 11, 1873.</p> <p>Under the second section of the act of April 11, 1873, amendatory of chapter 83, Rev. St. 111., the right of action on judgments in any court of record is preserved for 20 years, and is not barred by the statute of limitations.</p> <p>2. Execution — Exemption from — Judgment against a Township.</p> <p>Under the township organization laws of Illinois, a judgment against a township cannot, be collected by execution.</p> <p>3. Mandamus — To Board of Town Auditors — Scire Facias.</p> <p>Mandamus will lie to compel a board of town auditors to audit and certify, as a valid debt, a judgment rendered against the town, although more than seven years have elapsed since the rendition. Such judgment would have no greater legal force if revived by a sobre fados.</p> <p>4. Judgment — Oonolusiveness—Bes Adjudtcata.</p> <p>That a judgment was rendered for interest upon certain bonds issued by the town to aid in the construction of a railroad, and that both the supreme court of tlie state of Illinois and the supreme court of the United States after-wards decided that such bonds were void for want of power in the town to issue the same, does not affect the eonclusiveness of such judgment in a case where no appeal or writ of error has been taken.</p> <p>5. Same — Judgment against Town- — Duty of Town Auditors.</p> <p>After a judgment has been rendered against a town by a court of competent jurisdiction, evenúf the court erred in so rendering it ihe judgment is binding upon the town until it is reversed by an appellate court, and the board of town auditors have no discretion, but must audit it as a town charge.</p>

<p>PAYMENT—APPROPRIATION OE PAYMENTS—SALE.</p> <p>A counter-claim of purchaser against seller, of which the time of payment is not expressly fixed hy the contract of sale, should he deducted from an earlier, rather than a later, cash payment to be made by the purchaser. This is so. although the purchaser had the option to make such earlier payment in cash, or in land at a fixed valuation, and the subsequent payment was to be in cash or negotiable notes.</p>

<p>Customs Duties — Reappraisement—Fees Illegally Exacted — Penalty— Rey. St. §§ 2636, 2725, 2733, 2930.</p> <p>Section 2725 of tlie Revised Statutes, providing for the payment of five dollars a day to merchant appraisers, has no application in ports where there is a stated appraiser. Semble, in such cases compensation is provided for by section 2733.</p> <p>2. Same — Importer not Liable por Expenses of Merchant Appraiser-Treasury Regulation 472 Void.</p> <p>Upon notice by an importer, pursuant to section 2930, of his dissatisfaction with the appraiser’s valuation of goods imported, a reappraisement by a merchant appraiser is one of the ordinary means of ascertaining the value of the goods for the purpose of determining the duty; and no charge for that service can be imposed upon the importer, directly or indirectly, in the absence of any authority of law therefor. Article'472 of the treasury regulations of 1884 is to that extent illegal and void.</p> <p>$. Same — Collector’s Liability — Voluntary Payment — Party Aggrieved.</p> <p>The plaintiffs, upon giving notice of dissatisfaction with an appraisement, paid at the collector’s office, upon filing such notice, a fee of $10, which had been long required as a condition of proceeding with the reappraisement, in accordance with article 472 of the treasury regulations. The deposit was for the purpose of paying the merchant appraiser for his services, such portion as was not used for that purpose being afterwards returned. Held, (1) that such deposit, if exacted as a condition of proceeding with the reappraisement, was illegal; and, if done with the collector’s knowledge and sanction, was a violation by him of section 2636, which declares that “every officer of the customs who demands or receives any other or greater fee than is allowed by law for performing any duty or service required from him shall be liable to a penalty of $200 to the use of the party aggrieved;” (2) that if paid in pursuance of a well-known and settled requirement and usage, it was not a voluntary payment; (3) that the plaintiffs were entitled to prosecute the defendant in their own name.</p>

<p>1. BANKRUPTCY — INFORMER*S COMPENSATION — REV. St. § 3090 — JURISDICTION ON Petition.</p> <p>Upon a petition filed in bankruptcy by an informer, under section 3090 of the Revised Statutes and the act oi’ 1807, to have an adjudication as to his claim against the United States, a creditor of the bankrupt by judgment recovered through the information of the petitioner, held, that the court had no jurisdiction of the matter upon summary petition, no money having been recovered in that suit, and there being no fund in court to the credit, of that cause.</p> <p>2. Courts — Court op Claims — Jurisdiction—Informer’s Lien Abolished— Res Judicata — Act of June 22, 1874, §§ 6, 26 — Construction of.</p> <p>Since the passage of the act of June 22, 1874, an informer has no vested interest in any funds recovered by the government through information given by him, but only a right to compensation as a personal claim against the gov. ernment. As respects suits existing at the passage of that act, the secretary of .the treasury had power, under, section 20, to determine the informer’s compensation, without any previous examination or report thereon by the court,' under section 6. Held, therefore, that, upon a claim made by the petitioner and others to the secretary of the treasury, and a reference thereof by him to the court of claims, without any previous examination by the court in which the principal action was pending, the court of claims had jurisdiction of the person and of the subject-matter, and that its decision adverse to the petitioner’s exclusive claim was valid and binding.</p>

<p>1. Patents for Inventions—Transom and Sky-Liqiit Lifters.</p> <p>Letters patent No. 191,088, of May 22, 1877, and No. 196,851, of November 6, 1877, to John P. Wollensak, for sky-light and transom lifters, must, in view of the patent of March 11,1878, to the same inventor, and the decision in Wol-lensak v. Beiher, 115 U. S. 87, S. 0. 5 Sup. Ct. Rep. 1182, be limited to their specific devices. They are not foundation or generic patents.</p> <p>2i Same—Infringement—Patent No. 226,353.</p> <p>Transom lifters, made in accordance with the specifications and drawings of patent No. 226,353, of April 6, 1880, to Prank A. Reiher, infringe the Wol lensak patents Nos. 191,088 and 196,851.</p> <p>3. Same—Novelty.</p> <p>Although the Wollensak patents are, to some extent, limited by his older patent, he is entitled to the benefit of the specific devices shown in them, and of their known eauivalents.</p>

<p>Patents for Intentions—Set-Screws.</p> <p>Letters patent Ho, 278,759, oí June 5,1888, to JohnF. Wollensak, for an improved set-screw, sustained, and found infringed.</p>

<p>1. Patents for Intentions—Contest in Patent-Office—Injunction.</p> <p>The action of the patent-office in granting a reissue, after an exhaustive discussion and examination of the art, in which opposing interests to the grant were fully heard, is of weight in an application for a preliminary injunction to restrain infringement of the reissue.</p> <p>2. Same—Incidental Consideration of Patent—Novelty.</p> <p>The patent sued on having been discussed in its relation to the state of the art in another suit, (New Process Fermentation Co. v. Koch, 21 Fed. Rep. 580,) where it was held, to anticipate the patent there sued on, and infringement being clear, such decision considered, on the question of novelty, and a preliminary injunction granted.</p>

In Admiralty. The tugs Gladiator, Andrew J. Smith, Balize, Kate Williams, and William A. Moore, belonging to the Detroit Tug & Transit Company, of which Samuel J. Murphy was president, having been sold by the marshal, and the proceeds paid into the registry, it was stipulated that the various questions of liability for doubtful claims should be informally considered by the court upon .exceptions to the report of the commissioner assessing damages.

<p>Motion to Remand.</p>

<p>1. Trade-Marks—Material not Subject to Appropriation.</p> <p>There can be no valid trade-mark in a piece of tin used as a tag for tobacco, ' regardless of its color, shape, or inscriptions upon it, as tin is one of the common metals in use by the public for a very large variety of purposes, and it would be as reasonable to assume that paper, wood, leather, or cloth could be exclusively appropriated as a badge or indicia for goods as to assume that tin could be so appropriated.</p> <p>2. Same—Popular Designation.</p> <p>No one, by using a particular material—as tin, paper, wood, or leather—as a label or tag for goods, can acquire an exclusive right in a popular designation applied by the public to such goods; as “Tin Tag, ” “Paper Tag, ” etc.</p> <p>3. Same — Arbitrary Terms.</p> <p>Arbitrary terms, sucli as “Tin Tag” or “Wood Tag, ” branded upon or given to goods by the manufacturer or seller, to distinguish them, may constitute valid trade-marks, but the person so using them -would have no right to the exclusive use of tin or wood as a material to designate the goods.</p> <p>4. Same — Words—Figures—Emblems—Material.</p> <p>A person may appropriate any word, figure, or emblem as a trade-mark, but not the exclusive right to the use of the well-known material substances upon which the word, figure, or emblem may bo impressed or engraved.</p> <p>5. Same — Patented Monopoly cannot be Extended under Guise of TradeMark.</p> <p>Where a patent is declared void the owner cannot perpetuate the monopoly by falling back upon a popular name given the goods by the public in consequence of the use of the patent, and claiming such name as a trade-mark.</p>

At Law. This was an action upon the judgment of a state court in Illinois, and the facts are stated in the opinion. It appears by the proof which was rejected that the defendant company issued the policy of insurance through a broker at Chicago, and that it had issued many other policies through that and other brokers; the business all being done by mail, and the policies sent to and delivered at Chicago.

At Chambers. Application to be qualified as marshal. The department of justice having forwarded the commission of T. B. Yancey to be a marshal of the United States for the Western district of Tennessee to United States District Judge Hammond, with a request that he be qualified as required bylaw, and the commission delivered to him, he was notified to appear for that purpose.

<p>1. Bankruptcy — Preferences—Bill ov Exchange.</p> <p>Where bankrupts, before insolvency or contemplation thereof, delivered their bill of exchange drawn on a certain firm, payable at a future day to certain creditors, and said creditors, after the insolvency and with knowledge that it had occurred, presented the bill to said firm, who accepted it, while ignorant of the insolvency, thereby obtaining an equitable lien for its amount upon property in their hands as consignees of the bankrupts, held, that the payment of the bill of exchange was not an illegal preference, although made after the bankruptcy was notorious.</p> <p>2. Same — Attorney’s Fees — Creditors.</p> <p>Services rendered by counsel for the benefit of particular creditors only, and not for all the creditors of a bankrupt, are not allowable against the estate of said bankrupt.</p>

<p>1. Patents for Inventions—Time-Locks.</p> <p>Letters patent No. 262,093, of August 1, 1882, to Henry P. Newbury, for an improvement in time-locks, construed, sustained over tire defense of want of novelty, and found infringed.</p> <p>2. Same—Patentable Novelty.</p> <p>Prior to the making of the patented device, combination locks for vaults and safes, having supplementary devices for dogging the bolts of the door in the locked position, in case the lock was driven or blown off, or separated from the door-plates, were old, and it was also old to use time-locks in connection with such combination locks and dogging devices. The patent described a supplemental locking mechanism, adapted to be called into action by a shock sufficient to break or displace the parts of the time-lock without driving it from the door. Held; that the device possessed patentable novelty.</p> <p>8. Same—Invention.</p> <p>“It required inventive genius to conceive and adapt to a time-lock a supplemental mechanism which would remain inert until the time-lock was broken, and then be brought into action by the violence or shock which broke the time-lock, or destroyed its efficiency. ”</p> <p>4. Same—Utility—Infringement—Estoppel.</p> <p>One who has appropriated an invention ought not to be heard to question its utility.</p> <p>5. Same—Utility—Increased Salability.</p> <p>Any invention which increases the salability of an article may be said to contain the elements of utility.</p>

Bill of Bevivor. Suit to recover damages for the infringement of a patent from the personal representative of a deceased infringer.

In Admiralty. See' 22 Fed. Rep. S55. The steam-ship Naoooohee, while on her voyage from Savannah to the city of New York, upon a course N. £ E., off Cape May, about 1: 30 ,p. m. of April 16, 1883, during a fog, passed the schooner Lizzie Thompson, bound in the same direction.

In Admiralty. In the first of these actions the libel of the owners of the bark Heinrich and Tonio against the steam-ship Galileo and the tug Edgar Baxter, filed to recover damages sustained by a collision between the bark while in tow of the tug and the steam-ship, was dismissed by the district court as against the tug, and a decree ordered as against tho steam-ship.

In Admiralty. The libel, charged the tug with making use of libelant’s wharf, in the city of Detroit, during the months of September and October, 1884.

<p>Master and Servant — Liability of Master for Negligence of Fellow-Servant.</p> <p>Where a person, while assisting in hoisting and shifting coal on hoard a steamer, was injured hy the falling of a skid caused hy the incompetenoy and carelessness of a fellow-servant, and not hy any defect in the machinery, the steamer was not held liable for the injury.1</p> <p>NOTE.</p> <p>Respecting freedom from liability on the part of the master for an injury caused'by the negligence of a fellow-servant, see Northern Pac. R. Go. v. Herbert, 0 Sup. Ct. Rep. 590; District of Columbia v. McElligott, 6 Sup. Ct. Rep. 884; Trihay v. Brooklyn L. M. Co., (Utah,) 11 Pac. Rep. 612, and note; Kansas Pac. R. Co. v. Peavey, (Kan.) 8 Pac. Rep. 780, and note; Gardner v. Michigan Cent. R. Co., (Mich.) 26 N. W. Rep. 301, and note, 306; Hoar v. Merritt, (Mich.) 29 N. W. Rep. 15, and note; Baldwin v. St. Louis, K. & N. R. Co., (Iowa,) 25 N. W. Rep. 918; Matson v. Chicago, R. I. & P. R. Co., (Iowa,) 25 N. W. Rep. 911; Farmer v. Central Iowa Ry. Co., 24 N. W. Rep. 896, note; Chicago & N. W. Ry. Co. v. Snyder, (Ill.) 7 N. E. Rep. 604; Clifford v. Old Colony R. Co., (Mass.) 6 N. E. Rep. 751; Benzing v. Steinway, (N. Y.) 5 N. B. Rep. 449; Pittsburgh, C. & St. L. Ry. Co. v. Adams, (Ind.) 5 N. E. Rep. 187, and note, 197; United States Rolling-stock Co. v. Wilder, (Ill.) 5 N. E. Rep. 92; Philadelphia I. & S. Co. v. Davis, (Pa.) 4 Atl. Rep.513; Dealfeyv. Philadelphia & R. R.Co., (Pa.) 4 Atl. Rep. 170; New York, L. E. & W; R. Co. v. Bell, (Pa.) 4 Atl. Rep. 50, and note; Reese v. Biddle, (Pa.) 3 Atl. Rep. 813; Chicago, M. &, St. P. Ry. Co. v. Ross, 5 Sup. Ct. Rep. 184;.S. C. 8 Fed. Rep. 544; Garrahy v. Kansas City, St. J. & C. B. R. Co., 25 Fed. Rep. 258, and note, 262; Howard v. Denver & R. G. Ry. Co., 26 Fed. Rep. 837; Conley v. City of Portland, (Me.) 3 Atl. Rep. 658, and note; and also note to Whitelaw v. Memphis & C. R. Co., (Tenn.) 1 S. W. Rep. 39.</p>

<p>Motion to Dismiss for Want of Jurisdiction.</p>

<p>1. Public Lands — Land, Agricultural or Mineral.</p> <p>Notwithstanding there is some measure of gold deposited in a tract of land, it is subject to entry under the homestead law, as agricultural land, if, under the circumstances as they exist, or may reasonably be expected or produced, it is more valuable for agriculture than mining.</p> <p>2. Same — Right of Way over Homestead.</p> <p>The affidavit of an applicant for an entry under the homestead law, that the application is not made “for the use or benefit of any other person,” is not contradicted or falsified by the fact that the applicant has already.promised to concede a right of way over the premises for a neighborhood road.</p> <p>3. Same — Affidavit that Land is not Used or Claimed for Mining Purposes.</p> <p>The statute only reserves lands on which there are known mines from entry under the homestead law, and admitting that an applicant for an entry under said law may be required to swear that the land in question is not used or claimed for mining purposes, and that if the oath is false the affiant is guilty of perjury, yet his entry is not thereby vitiated.</p>

In Equity. Action to quiet title to land. The defendant claims under a tax sale, and the controlling question in the case is whether or not the land in question was subject to taxation by the local authorities of the state.

<p>Specific Performance — Forfeiture of Real-Estate Contract — Prompt Payment — Promissory Rotes. .</p> <p>Where it was stipulated in a contract for the conveyance of real estate that annual payments were to he made by certain promissory notes at a given time and place, and, in case the payment was not made punctually, the contract should he void, and all rights previously acquired cease, held, in an action to compel the specific performance of the contract, that where one of the said notes was Dot paid on the exact day due, it would not work a forfeiture of the contract; the evidence showing that the maker of the note had previously called at the place agreed upon for the purpose of paying, hut had not found the notes there, and that former payment of other notes had been accepted a few days after they became due, and also that the payee retained possession for nearly a year after the alleged forfeiture of all the negotiable notes given for future payments.</p>

<p>1. Burden of Proof.</p> <p>The complaint stated that a lease was executed by the officers of the defendant corporation in. pursuance of a resolution duly passed by its board of directors. The answer admitted the execution of the lease under the corporate seal, but alleged that the meeting at which the resolution was passed authorizing such execution was held without a quorum. The reply denied knowledge or information concerning the want of a quorum sufficient to form a belief. IMd, that the burden of proof is on the defendant.</p> <p>3. Ratification of Lease.</p> <p>A corporation, like a natural person, may ratify any act which it can perform; and the entry into the possession of a leased road in pursuance of a lease executed by it’s officers without due authority, and operating the same and paying the rent therefor, as reserved in said lease, is ample evidence of the ratification thereof.</p> <p>8. Estoppel — Judgment by Default.</p> <p>A judgment for want of an answer to a complaint is a conclusive determination between the parties to the action of every matter well pleaded therein, and necessary to such judgment.</p> <p>4. Distinct Demands.</p> <p>A claim for a semi-annual installment of rent, arising on a covenant in a lease of a railway for 90 years, is a separate and distinct demand from a claim for a semi-annual installment of money, due under another covenant in said lease, and appropriated thereby to the payment of the expense of maintaining the corporate organization of the lessor.</p>

The plaintiffs, Bullock & Co., were dealers in produce in the city of New York, and, among other things, were selling brewers’ rice; and the defendant was the owner of a large brewery establishment in the city of Toledo, Ohio, and was using, to some extent, broken rice in the manufacture of beer and ale.

The plaintiffs were manufacturers of mill machinery, and also engaged in furnishing other machinery than their manufacture, and putting up mills, located at Fort Wayne, Indiana.

The plaintiffs were wholesale dealers in boots and shoes in the city of Fort Wayne, Indiana. One Amos Bodgers was a retail dealer in boots and shoes at the town of Paulding, Ohio, and had been, since 1882, purchasing goods from the plaintiffs as he wanted them to soli, and on a credit of four mouths; and in the month of January, 1884, ordered, through the commercial agent of the plaintiffs, a bill of goods amounting to some $800.

<p>TROVER AND CONVERSION — PLEADING—DESCRIPTION OP PROPERTY — AliREST OP Judgment.</p> <p>In an action of trover, upon a motion in arrest of -judgment, the same strictness is not required in the description of the property as upon a demurrer to the declaration.</p>

<p>Indictment under Eev. St. § 3893.</p>

<p>Collision — Damages—Partial Loss — Duty to Raise Sunken- Vessel — Delay in Raising.</p> <p>Where a vessel is sunk by collision, in shallow water, and can be easily raised and repaired at much less expense than she is worth, the owner cannot abandon her, and recover, as for a total loss, against the colliding vessel. He can recover only the cost of raising and repairing within a reasonable time, and cannot add the increased expense that arises through unreasonable delay.</p>

<p>In Admiralty. Exceptions to commissioner’s report.</p>

<p>Admiralty—Appeal—Evidence .</p> <p>When, on an appeal, the questions involved are exclusively questions of fact, dependent upon conflicting testimony, the court will not discuss the evidence to enforce its views with reference to its weight and credibility.</p>

In Equity. On motion for preliminary injunction. This was a bill by the Saginaw Gas-light Company to enjoin the city of Saginaw from entering into a contract with an electric light company to light its streets.

<p>1. Mortgages — Non-Resident Mortgagor — State Statutes Part op Cos-tract.</p> <p>When a non-resident executes a mortgage upon property, it must be held that he executed the same with reference to the laws of the state where the property is situated, regulat ing such instruments, and the statutory modes for the enforcement of such contracts must be deemed to be part of the agree • ment of the parties.</p> <p>2. Sams — Foreclosure—Decree—Not a Personal Judgment.</p> <p>A decree of foreclosure that the complainant “recover of the defendant, out of the mortgaged premises, §487.38, * * * and that real estate in question, or sufficient thereof, be sold, ” etc., is not a personal judgment, but a decree in rein.</p> <p>3. Same —Service by Publication — Statute Authorizing, Constitutional.</p> <p>A statute authorizing service by publication in such a case, where personal service cannot be had, is not unconstitutional, and a decree rendered upon such service binds the property within the jurisdiction of the court.</p> <p>4. Samis — Aehtdavit—Code Iowa, § S618, Subd. 3.</p> <p>Actions to foreclose maybe brought under Code Iowa. § 2618, subd. 3, upon affidavit that personal service cannot be had on the defendant within the state.</p> <p>5. Same — Notice op Publication — Atttdavtt—Country Paper — Proprietor and Publisher — Code Iowa, § 2620.</p> <p>Where the paper in which notice to foreclose is published is a country paper, issued weekly, the affidavit of publication may be made by the proprietor. — “uronrietor’’ and “publisher” being, in such cases, synonymous. Code Iowa, § 2620.</p>

<p>1. Constitutional Law—‘Wharfage! Tax.</p> <p>The question of the constitutionality of wharfage taxes exacted by the city of New Orleans, and as to their being excessive, has been settled by this court in this district adversely to complainants in two cases,—Leathers v. Aiken, 9 Fed. Rep. 679, and Packet Co. v. Aiken, 4 Woods, 208, S. 0. 16 Fed. Rep. 890.</p> <p>2. Munich?al Corporations—Contracts fojr Public Works—Charter of the City of New Orleans—Sections 8 and 21.</p> <p>It is very doubtful whether section 21 of the charter of the city of New Orleans (Acts 1882, p. 24) applies at ail to the matter of farming out the wharves and landings, as provided for in section 8, (page 21;) but.jf it does, it is clear that neither the duties and powers devolving on the city Council “to prescribe and collect levee dues. ” and, in case of the lease of the wharves, to fix in advance “just and reasonable charges on vessels and merchandise, ” nor the rates of charges for wharfage when once fixed by the council, are to be affected by the said provision for adjudicating contracts for public works ordered by the council.</p> <p>3. Same—Non-Residents.</p> <p>Non-residents, who are not tax-payors of the city of New Orleans, have no ' standing in court to inquire how the city council of New Orleans manages or mismanages the affairs of the city.</p> <p>4. Wharfage Tax—Remedy for Excessive.</p> <p>Citizens of the United States, engaged in running steam-boats or vessels to the port of New Orleans, and compelled thereby to use the wharves and landings of the city of New Orleans, have a right tó see that they are not charged excessive wharfage, and, if they are, they may resist, and refuse to pay the same, so far as excessive. In the case of Packet Go. v. Oatlettsiurg, 105 IT. S. 565, the remedy in the case of excessive rates of wharfage is pointed out to be by an action al law to determine the excess, and then by injunction from a court of equity to restrain it.</p>

<p>Motion to Vacate an Order Granting Stay of Execution on Judgment.</p>

<p>Motion-for New Trial. ‘The opinion states the facts.</p>

<p>Upon Petition for Mandamus. The opinion stales the case.</p>

<p>1. Patents fou Inventions — Infringement.</p> <p>The first, claim of letters patent to Cleon Tondeur, No. 268,156, dated May 16, 1882, for improvements in glass-annealing furnaces, is for “the combination ol' the bars, d, d', arranged side by side, and alternately between each other, the set,-d, supporting the sheets of glass while the bars, d', are pushed towards the leer or flattening wheel, a, and the set, d', supporting the sheets of glass, and moving them onward and through the tunnel, substantially as sot forth;” and the distinguishing feature of the invention is that the sheets of glass travel through the annealing tunnel, elevated above the floor, away from the disturbing conditions there existing, so as to be subjected on both sides to heated currents of air, whereby they are uniformly annealed. field, that it is immaterial whether the vertical'movement in shifting theglass from the one set of bars to the other is divided between the two sets according to the description in the specification, or is executed by the transmitting bars alone, the other set being immovable, as is the case in the furnace of the defendants, who are infringers notwithstanding- this change in arrangement.</p> <p>2. Same — Disclaimer.</p> <p>The only previously known rests for sheets of glass during their transmission through the annealing tunnel being floor-rests, a disclaimer of “fixed temporary rests” held to mean floor-rosts.</p> <p>3. Same — Construction of Claim.</p> <p>That the patent may be sustained, the court should adopt the construction claimed by the patentee himself, if consistent with the language he has employed.</p> <p>4. Same — Confounding Claims.</p> <p>A construction which would make two distinct claims of a patent cover, not different things, but one and the same thing, is to be avoided, if possible.</p>

<p>Patents — Interferences—Patent-Office Decisions —Preliminary Injunction — Res Adjudicata — Rev. St. § 4915.</p> <p>The courts are not bound by the decisions oí the Uniled States patent-office, when steps are taken to test its validity in an action instituted for that purpose; and in an interference case the rights of the defeated party are not prejudiced, if he avails himself of the law which virtually transfers the controversy to the courts. Rev. St. § 4915.</p>

<p>1. Patents tor. Invention's—Substitution—Patentability.</p> <p>Clover hullers having in combination an open upper cylinder and a closed lower cylinder being- old, and it being- also old to fasten spikes or rubbers upon tlie bars or lags of open cylinders from the inside, the court had serious doubts whether there was anything patentable in substituting an open cylinder. having its spikes or rubbers fastened upon tlie inside, for the closed lower cylinder in a cl over-hull or, the combined operation and function of the two cylinders remaining the same.</p> <p>2. Sauk—Ink in ngkment.</p> <p>The second claim of letters patent Ho. 188,004, to A. Miller, being for the combination in a elover-huiler of an open upper cylinder with an open lower cylinder, is not infringed by a machine having its lower cylinder made of corrugated iron plates removably secured between the bars or lags, and forming, except when said plates are removed, a closed cylinder.</p> <p>3. Same—'Hestiuoted Claim.</p> <p>A restricted claim for rubbers (for clover-huller cylinders) having roughened sides ami rounded front edges is not infringed by rubbers having beveled front, edges of a. blunt wodgc shape.</p> <p>4. Same—Public list: and Bale.</p> <p>Where machines containing a particular feature have been manufactured for sale, ami actually sold, and publicly used, for more than two years before an application for a'patont for such feature, the latter becomes, as an independent device, public property, even though the machine on which it Ivas so used may have been, as a whole, unsuccessful.</p> <p>5. Same—1’ramio T>n.</p> <p>Ao one is entitled to a patent for a combination which has been in public use. for more that i.wo years, oven though, by reason of superior mechanical construction, he may have boon the first to obtain from its use the most successful results.</p> <p>6. S \ M R —S K K D - O IVK \ N K US.</p> <p>Letters patent iSo. 271,889, of February 6, 1883,.to I. (rrnbe, for seed-cleaner, considered, and held, that the first claim can only be supported when stiictly construed, and not infringed; and that the second claim, if construed to coicr the use of any sood-clómior in combination with any thresher, is void.</p>

<p>1. Patents for Inventions—Bands or Belts—Novelty.</p> <p>Letters patent were granted in June, 1880, to Gandy, for a hard, even-surfaced, rigid, impervious, non-elastic belt, composed of cotton canvas or duck, having its warp threads larger than the weft; both warp and weft being hard-spun, the fabric tight woven, and f oldod, stiched, and saturated with linseed oil. Held, invalid for want of novelty.</p> <p>2. Same—Date oe Patent—Bev. St. § 4887.</p> <p>Section 4887 of the Revised Statutes cannot he successfully invoked to carry the date of an invention hack to the date of a previously issued English patent, where the two patents are not alike.</p>

<p>Patents foe Inventions—Novelty—Patent No. 269,f519.</p> <p>Letters patent No. 289.519 were granted December 26, 1882, to Maurice Gandy Cor improvement in stretching by moans of an apparatus consisting of a frame work on the ends of which, is a series of rollers free to revolve upon their axis. The belts are placed upon the rollers, and the ends are fastened with a taking-up device. Pressure is then applied, and the belt is submitted to a continuous strain as if in actual use until ail the elasticity in the belt is killed. The taking-up device serves to keep the belt taut throughout the entire proceeding. JMA, that the process and apparatus possessed novelty, and that the patent was therefore valid.</p>

<p>Patents for Inventions—Injunction—Estoppel.</p> <p>Where defendant had been a licensee under the patents on which he was sued, and at one time claimed to own them,'and had dealt extensively in the patented articles, the infringement being clear, held, that he was hardly in position to deny the validity of the patents, and a preliminary injunction granted.</p>

<p>1. Patents eor Inventions— Sole Trimmers.</p> <p>Letters patent No. 238,303, of March 1, 1881, to William D. Orcutt, for improvements in rotary cutters for trimming tlio edges of boot and shoe solos, held void for want of patentable novelty.</p> <p>2. Same-Double Use.</p> <p>The application of an old and well-known form of blade from a hand tool for trimming sole edges to an old gear cutter, for trimming suclt edges, is merely a case of double use, and therefore not patentable.</p>

<p>Equity—Evidence—Admission in Answer.</p> <p>An offer of evidence touching a fact which is admitted to be true by the answer will be refused.</p>

In Equity. On motion to amend interlocutory decree in a trademark case. In this case an interlocutory decree was entered on the fourth day of February, 1886, adjudging defendant guilty of-infringing plaintiff’s trade-mark, awarding an injunction, and referring the case to a master to assess and report the damages sustained by plaintiff.

<p>Injunction — Decree oe Court oe General Equity Jurisdiction,</p> <p>The decree of a court of general equity jurisdiction, in a case where the defendant therein was personally served with process within the jurisdiction of the court, and where the court appears to have had jurisdiction of the subject-matter of the bill, will not be impeached upon a bill denying only the existence of the facts required to justify the plaintiff therein in invoking the exercise of that jurisdiction. See Basará v. Griswold, 21 Eed. Rep. 178.</p>

<p>In Equity. On demurrer to bill.</p>

<p>1. Railroad Companies — State Regulation op Charges — Act Miss. 1884.</p> <p>The plain construction of the Mississippi act of March 11,1884, is that it was the intention of the legislature to confer upon the railroad commission the power to control all rates for the transportation of goods, wares, and merchandise from points within the state to points without the state, and from points outside of the state to points inside of the state ¡.otherwise such transportation would have been included in the exception of the amendatory act of March 15, 1884.1</p> <p>3. Same — Regulation of Interstate Commerce.</p> <p>The transportation of goods, wares, and merchandise from one state to another constitutes commerce among the several states, and a regulation thereof by the railroad commission of the state of Mississippi, under the act of March 11,1884, is in violation of article 1, § 8, par. 3, Const. U. S.1</p> <p>3. Same — Relief in Equity.</p> <p>The attempt of the railroad commission, in this case, to force upon the Mobile & Ohio Railroad Company the adoption of the tariff of rates, freight rules, and regulations and classifications of freight in respect to the rate to be charged for the transportation of goods, wares, and merchandise from points within the state to points outside of the state, and from points without the state to points inside of the state, presents such a case as authorizes a court of equity to grant relief therefrom.</p> <p>NOTE.</p> <p>Right or State to Regulate Raí leo ad Companies. A state has power to limit the amount to be charged, by railroad companies for the transportation of persons and property within its own jurisdiction, and otherwise to control and regulate such companies, Stone v. farmers’ L. & T. Co., 6 Snp. Ct. Rep. 334; S. C. 20 Fed. Rep. 270; Stone v. Illinois Cent. R. Co., 0 Sup. Ct. Rep. 348; S. C. 20 Fed. Rep. 468; Stone y. New Orleans <& N. E. R. Co., 6 Sup. Ct. Rep. 849; Buggies v. People, 2 Sup. Ct. Rep. 832; Illinois Cent. R. Co. y. State, Id. 839; Louisville & N. R. Co. y. Railroad Coni’rs, 19 Fed. Rep. 679; Denver & N. O. B. Co. v. Atchison, T. & S. F. B. Co., 15 Fed. Rep. 650; Rae v. Grand Trunk By. Co., 14 Fed. Rep. 401; Tilley v. Savannah, F. & W. B. Co., 5 Fed. Rep. 641; Seolield v. Lake Shore & M. S. Ry. Co., (Ohio,) 3 N. E. Rep. 907; Providence Coal Co. v. Providence & W. B. Co., (R. 1.) 4 Atl. Rep. 394; but not when what is done or attempted to be done would amount to a regulation of foreign or interstate commerce, Stone v. Farmers’ L. & T. Go., 6 Sup. Ct. Rep. 334; S. C. 20 Fed. Bep. 270; Stone y. Illinois Cent. B. Go., 6 Sup. Ct. Rep. 348; S. C. 20 Fed. Rep. 468; Stone v. New Orleans & N. E. R. Co., 6 Sup. Ct. Rep. 349; In re Koehler, 25 Fed. Rep. 73; Louisville & N. R. Go. v. Railroad Com’rs, 19 Fed. Rep. 679; Brown v. Memphis & C. R. Co., 5 Fed. Bep. 499; Hardy v. Atchison, T. & S. F. B. Co., (Kan.) 5 Pac. Rep. 6; nor when such regulation would conflict with some contract in the charter of the company, Stone v. Farmers’ L. & T. Co., 6 Sup. Ct. Rep. 834; S. C. 20 Fed. Rep. 270; Stone v. Illinois Cent. B. Co., 6 Sup. Ct. Rep. 348; S. O. 20 Fed. Bep. 468; Stone v. New Orleans & N. E. B. Co., 6 Sup. Ct. Bop. 349.</p> <p>A grant, in general terms, of authority to fix rates, is not a renunciation of legislative control so as to secure reasonable rates. Stone v. Farmers’ L. & T. Co., 6 Sup. Ct. Bep. "34; S. C. 20 Fed. Rep. 270; In re Koehler, 23 Fed. Rep. 529.</p>

<p>Principal and Suruts- — Principal Failing to Set up Defense; —Injunction to Restrain Action at Law.</p> <p>In an action upon a bond conditioned for tbe performance of a decree of a court, a surety cannot, at law or in equity, avail himself of a defense which his principal might have, but did not, set up in tlio case in which such decree was rendered. Bee Hazard v. Griswold, 21 Fed. Rep. 178.</p>

<p>1 Husband and Wife — Money had and Received — Pboducts op Wipe’s Sep-aiiate Pjropubty.</p> <p>Where there was an understanding and agreement he,tween the parties that the lands and other separate property o£ both husband and wife should be worked and managed together, and the proceeds of hoth classes of property go into a common fund, and be the joint or common property of hoth, the wife cannot recover of her husband money received by him for the products of her land, in an action at law for “money had and received.” Her remedy, if any she has, is in equity.1</p> <p>2. Same — Dealings between — Joint Wobking op Sepabate Pbopebty op Each — Poweb to Contbact with Husband — Civru Code Cal. §158.</p> <p>The wife is competent to enter into an agreement with the husband that the separate property of each shall he worked together, and the products go into a common fund, under Civil Code Cal. § 158, providing that “either hus band or wife may enter into any engagement or transaction with the other or with any other person, respecting property, which either might if unmarried. ’1</p> <p>NOTE.</p> <p>Notwithstanding the removal, in nearly all of the states, of most of the common-law disabilities of married women in respect to contracts, the courts have been reluctant, in the absence of express statutory provisions, to extend the effect of such removal to the right of a woman to contract directly with her husband, and to maintain ati action for the enforcement of such contracts. In Massachusetts the decisions are still uniformly against that right. See Woodward v. Spurr, 6 N. E. Rep. 521; Silverman v. Silverman, 5 N. B. Rep. 639; Kniel v. Egleston, 4 N. E. Rep. 573; Boulter v. Bradford, 5 N. E. Rep. 480. In Vermont a note given by husband to wife was held to be void in the hands of an innocent third party. Ellsworth v. Hopkins, 5 Atl. Rep. 405. In Ohio it was decided that, prior to the legislation of 1884, a woman could not form a copartnership with her husband; but the court does not pass on the effect of legislation. Payne v. Thompson, 5 N. E. Rep. 654, and see note, 659.</p> <p>A married woman’s contracts with her husband have been enforced in Indiana, see Proctor v. Oobb, 4 N. E. Rep. 303, and note; Iowa, Knox v. Moser, 28 N. W. Rep. 629; Nebraska, May v. May, 2 N. W. Rep. 221; Lipscomb v. Lyon, 27 N. W. Rep. 731, and note; New Jersey, Yeomans v. Petty, 4 Atl. Rep. 631, and note. In New York not only her right to enforce such contract, but also her privileges as a judgment creditor thereunder, were upheld in Carpenter v. Osborne, 7 N. E. Rep. 823.</p> <p>That a woman may maintain replevin against her husband was affirmed in White v. White, (Mich.) 25 N. W. Rep. 490; and a contract similar to the one in this case, by which the joint acquisitions of husband and wif? were to be equally divided and owned, ivas upheld. Hyde v. Powell, (Mich.) 10 N. W. Rep. 181.</p> <p>Equity will often uphold contracts between husband and wife, regardless of the common-law disabilities. See Barnett v. Harsbarger, (Ind.) 6 N. E. Rep. 718; Clark v. Hezekiah, 24 Fed. Rep. 663.</p>

<p>ITrntí TnSXJEAíTOE — IíTTEREST OT? ASSURED — OWNERSHIP.</p> <p>A clause in a policy of fire insurance avoiding the policy if the “interest of the assured in. the property” is not truly stated, must be construed as referring to the substantial ownership, and not to the bare legal title.</p>

<p>1. Pleading — JSÍcl Tied Record — Conclusion—Error of Form.</p> <p>A plea of nul tielrecord should conclude with a “verification, ” and not “to the country;” hut such an error is one of form, and is therefore, under the present practice, amendable.</p> <p>2. Same — Plea to Jurisdiction — Order of Pleading — Affidavit.</p> <p>A plea to the jurisdiction is a plea in abatement; and where the defendant has admitted tlio jurisdiction or waived it by a plea in bar to the action, he cannot subsequently plead in abatement. Such a plea must be supported by a special affidavit.</p> <p>3. Same — Action on Judgment.</p> <p>There can be no averment in pleading against the validity of a judgment; and therefore no matter of defense can be pleaded which existed prior to its recovery.</p>

The questions and answers to a deposition were written out by the party to the suit, w'ho was also a witness to the same facts, and the deponent adopted the answers as his own; but subsequently he was re-examined in the usual way, testifying substantially to the same facts. On cross-examination the first deposition was exhibited, and the method of preparing it proved.

<p>1. Opfioiat, Bond — Validity-—Com mon-Law Oblig ation.</p> <p>In a bond with sureties, given by an officer to the government, it is sufficient to make ihe bond valid as a common-law obligation that it is voluntarily given, anil that the office, and the duties assigned to the officer, and covered by the bond, are duly authorized by law.</p> <p>2. Same — Sionab-Servioe Corps — Property Opjtckr — Vomintary Bond.</p> <p>The defendant executed a bond as surety for II. W. H., á lieutenant in t-lie army, given by the latter on being assigned to duty as property and disbursing officer of the signal service, United States army. Held, that this assignment must be deemed made on the application of IT. W. II., and not obligatory on him as lieutenant merely: that the office of disbursing and property officer of the signal service lias been authorized by congress; and that the bond was not compulsory, but given voluntarily, to obtain the assignment to that duty, and was properly required, though not specially authorized by law, and was binding.</p>

<p>1. Internal Revenue — Collection Districts — Rev. St. § 2603.</p> <p>In defining collection districts, it is tlie policy of the government, in cases of small bodies of water, not to divide the jurisdiction, by locating one side of the water in one district and the other side in another.</p> <p>2. Same — Decisions of Secretary of Treasury.</p> <p>The acts and decisions of the secretary of the treasury upon the question of boundaries of collection districts are not conclusive upon the courts, unless made so by statute.</p>

<p>Copyright — Copyright in Books Protects Outs and Engravings Therein.</p> <p>One who malees a plate from which a copy of a picture forming an important, substantial, and material part of an illustrated newspaper that is copyrighted can be produced, and sells it to the proprietors of a rival illustrated newspaper, with the knowledge that it will be published in that paper,, is a joint tort-feasor with such publishers, and is guilty of infringement of the copyright. See Harper v. Shopped, 26 Eed. Rep. 619.</p>

<p>1. Patents fob Inventions—Rümkdy fob Infringement.</p> <p>A patenteo in resorting to his remedy for infringement, whether in a court of law or equity, is hound by the same'principles affecting tlic jurisdiction of the two tribunals as prevail’ in other branches of law. If the remedy at law is ample, lie is hound to pursue it; otherwise he may resort to a court of equity.</p> <p>2. Same—Injunction—Damages.</p> <p>In case of an infringement then continuing, a patentee is not restricted to the remedy at law. but may apply for an injunction, and, upon his bill, obtain an award of damages for past infringements.</p> <p>3. Same—Equitable Relief—Multiplicity of Suits.</p> <p>A court of equity interferes, by injunction, to restrain threatened or continuing infringement of a patent, for the purpose of preventing a multiplicity of suits; and. having jurisdiction of the case for that purpose, awards damages already incurred, and thus affords a complete remedy.</p> <p>4. Same—Adequate Remedy at Law.</p> <p>But if a case of infringement of patent is not one appropriate for an injunction, but is for damages only, as, for example, when the bill is filed after the expiration of the patent, the remedy is at law only.</p> <p>5. Same—Expiration of Patent Pending Suit.</p> <p>The more fact that the patent expires pending the suit will not oust the jurisdiction of a court of equity, if, at the time of the filing of the bill, an injunction was prayed, and the right to it existed.</p> <p>6. Same — Equitable Relief.</p> <p>But the substantial hold which a court of equity has in a suit for infringement of patent being for the purpose of awarding an injunction, it will not entertain the case at all if the expectation of affording that remedy is manifestly illusory.</p>

<p>1. Patents for Inventions—Construction of Claim.</p> <p>The second claim of letters patent No. 244,944, of July 26, 1881, to Joseph B. Stetson, for an improvement in lanterns, being for “the tubular frame, I), D', and the globe, G, in combination with the plates, 0, p, the connecting rods, E, and the guides, H, whereby said globe is raised by a suitable lever, and guided or steadied laterally in its movements, for the purpose set forth, ” construed, and held, that said claim is not limited to the precise apparatus mentioned in the fourth claim of the patent, nor to any particular mechanism for raising and lowering the globe.</p> <p>2. Same—Rules of Construction.</p> <p>A patent is to be construed according to its true intent and meaning, so as to give the inventor the benefit of what he has actually invented, even though his claims be carelessly or inartifieially drawn.</p> <p>3. Same—Equitable Estoppel.</p> <p>A company defendant whose president and trustees, with one exception, had recently occupied positions of trust and confidence under complainant, and had continually recognized and asserted the validity of a patent, is not in position, when sued for infringement, to demand that the rules of equity shall be strained in its behalf.</p>

<p>1. Patents for Intentions— Hammersciilag Reissue No. 8,460—Improvb-mbnt in Waxing Pamar.</p> <p>Notwithstanding the decisions sustaining the fifth, claim of the Haminer-sehlag reissue 8,460, for improvement in waxing paper, (Hammersehlag v. Ueamoni, 7 Red. Rep. 584; IfmnmerscMag v. Garrett, 9 Red. Rep. 43; Ilammer-scMag Mamtf’g (Jo. v. Wood. 18 Red. Rep. 175;) a preliminary injunction refused. the court having doubts on the question of infringement.</p> <p>2. Same—Pktoe Abjudications—Infringement.</p> <p>Although due weight is given to prior adjudications upon a patent, the question of infringement is still to be determined in each particular case as it arises.</p> <p>3. 8ame — Construction op Hammersciilag Patent—Infringement op Pro-OTSSS.</p> <p>The process described by Hammersehlag consists of several steps: Spreading the wax upon the surface; heating the paper from the opposite side, to spread and fuse the wax into tlio fabric of the paper; removing the surplus wax; and remelting and polishing the wax upon the paper. It not, being shown that defendant’s machine removed any of the surplus wax, or remelted and polished the wax upon the surface of the paper, infringement is not clear, and an injunction denied. ,</p>

<p>Patents for Inventions—Harrows.</p> <p>Letters patent. No. 120.19o, of October 24, 1871, to 13. "W. Herendeon, for an improvement in harrows, construed, and held anticipated by letters patent No. 82,431, of September 23, 1868, to J. J. Thomas, for improvement in harrows.</p>

<p>1. Patents for Inventions—Kerosene Lanterns.</p> <p>Letters patent No. 104,318 and No. 151,703, to John H. Irwin, for kerosene lamps or lanterns, sustained; following Steam-gauge & Lantern Co. v. Miller, 21 Fed. Rep. 514; and the defendant's lantern being essentially like the one involved in that case, held,, that it infringed.</p>

In Equity. Sur motion to set aside the service of the subpoena. The marshal returned, “served on the Pan Electric Telephone Co., by giving a true and attested copy thereof to Robert Klotz, treasurer of the Rogers Telegraph and Telephone Co., agents of said Pan Electric Telephone Co.” The Pan Electric Company denied that the Rogers Company were their agents, and moved that the service of the subpoena be set aside.

In Equity. Two insurance companies of Pennsylvania and one of Ohio were made defendants to this bill, along with citizens of Tennessee, inhabitants within this judicial district.

Attachment Case. This case was removed from the state court, where it was in form a bill in equity, but in fa,ct a suit at law upon the contract, attaching the effects of a non-resident. By consent the parties did not replead, and by stipulation the case was tried by the court without a jury.

<p>Witness — Privileges—Arrest.</p> <p>Witnesses in attendance on court are not privileged from arrest when charged with an indictable offense.</p>

<p>1. Extradition — Habeas Corpus — Presumption in Favor of Aot op the Executive.</p> <p>Although the courts have power, on habeas corpus, to review the decisions of the executive authority in extradition proceedings, they will not overrule such decisions unless they arc clearly satisfied that an error has been committed.</p> <p>2. Same — Concurrent Jurisdiction oe State and Federal Courts.</p> <p>The federal and state courts have concurrent jurisdiction in extradition proceedings.</p> <p>8. Same — Arrest Effected by Stratagem.</p> <p>A fugitive from justice charged with crime will not be released, on habeas corpus, because he was induced by a stratagem to come within territory where he could be properly arrested, provided the stratagem used was not itself an infraction of law.</p> <p>4. Same— Fikhtives prom Justice.</p> <p>A fugitive from justice is one who having, within a state, committed that which by its laws constitutes a crime, leaves its jurisdiction when it is sought to subject him to its criminal process to answer for his offense, and is found in the jurisdiction of another state. It is not necessary that he should have left after indictment found, or for the purpose of avoiding a prosecution anticipated or begun.</p>

<p>1. Patents for Inventions—Reissue.</p> <p>It is competent for a patentee to reissue and omit a claim which, is too broad, or to restate the claim, coupled with such restrictions as will bring it within the limits of his original invention.</p> <p>Same—Hew Claim.</p> <p>It is not competent for a patentee by reissue, after five years, to insert a claim for an invention which had never been the subject-matter of the original claims.</p>

<p>Collision—Steamer and Schooner—Identity oe Colliding- Vessel — Circumstantial Evidence—Witnesses Discredited—Costs not Given.</p> <p>Libelants’ tbree-masted schooner the S., wbich sailed on the twenty-first of February, 1884, from Newport News for New Haven, was sunk off the New Jersey coast, and all on board perished. The appearance of the wreck, discovered on the 24th, indicated collision as the cause of the loss. The steamer Newport, on the evening of the 23d, was in collision in the same neighborhood with a three-masted schooner. Libelants, claiming that the'vessel struck by the Newport was the schooner S., and that she was sunk by the steamer’s fault, brought this suit against the steam-ship for their loss. Held, on the evidence, some of the libelants’ witnesses being discredited, that libel-ants had not established the identity of the Newport with the vessel that had sunk the S., and that the libel should be dismissed; but, considering the libelants’ misfortune and probable case, without costs.</p>

<p>1. Carriage of Goods — Dunnage—Licorice—Iron-Ore Dust.</p> <p>Upon the discharge of licorice in bundles brought from Cartagena, Spain, along with other cargo, consisting of fine iron ore, the licorice was found more or less damaged from the dust of the iron ore, which was scattered among the bundles, and adhered to the sticks. Held, upon the facts, to have been caused mainly through the licorice becoming damp, and through want of sufficient top covering upon the ore to prevent the dust rising and adhering to the damp bundles, either during the voyage, or while discharging, and from insufficient side dunnage, and that the vessel was liable for this damage.</p> <p>2. Same — Insufficient Survey — Evidence—Sale of Damaged Goods — Separation.</p> <p>A sale of 1,510 bundles of licorice as damaged goods, upon proof of examination or survey of only 8 or 10 of the whole number, and the evidence being conflicting as to the number of bundles commercially injured, held, survey insufficient to charge vessel for the loss arising on the auction sale, and that libelant's claim was to be limited strictly to the number p-'oved damaged, because, after request, the libelant failed to make the full examination in his power, as to the extent of the damage.</p> <p>3 Costs — Exaggerated Claims — Vessel in Custody.</p> <p>The libelant’s claim being very greatly in excess of the damage proved, and the vessel thereby kept in custody at much expense, held, no costs allowed.</p>

In Admiralty. Distribution of fund between adverse claimants. On the twenty-seventh of July, 1885, G-eorge N. Spencer, first mate, Andrew J. Bortel, seaman, Henry T. Couch, seaman, and William H. Bishop, engineer, filed their libel against the steamer Alanson Sumner, claiming as wages the sum of $297, $642, $186.50, and $404.83, respectively.

<p>1. Equity—Master.</p> <p>The master is a judicial officer, acting as the representative and substitute of the court which appointed him.</p> <p>2. Same—Orders of—Power, of Court Over.</p> <p>While there can exist no doubt of the power of the court, for sufficient cause, to vacate or modify any order made by a master, it is not the general practice to interfere with his acts and proceedings in lim'me, but to wait until the coming in of his report.</p> <p>3. Same—Modification and Vacation of Orders, Grounds for.</p> <p>The fact that the execution of the master’s orders will involve considerable expense of time and money may justify the hearing of an application to modify or vacate them on the ground that they are made without authority.</p> <p>4. Same—So urce of Authority.</p> <p>The master derives his powers from his appointment by the court, and from the equity rules which especially prescribe his duties, and the manner of their performance.</p> <p>5. Same—Jurisdiction—Practice.</p> <p>The universal practice has been to permit the master to act outside of the territorial jurisdiction of the court, and semble that he may take testimony in foreign countries.</p> <p>6. Same—Taking Testimony in Foreign Countries, Mode of.</p> <p>The master should choose the best method of taking testimony, under all the circumstances of the case, and if the cheapest plan is as good as any other, that plan should be adopted.</p>

In Chancery. This is a suit in chancery, originally brought in the circuit court of Eoek Island county, in the state of Illinois, and afterwards removed from the state court to this court. The complainants are Calvin TI. Allen, a citizen of New York, and Lucian C. Jones, Henry 0. Baldwin, and Warren Packard, citizens of Ohio, who sued for themselves and, generally, for other stockholders of tlie Banner Coal & Coal-oil Company, an Illinois corporation.

<p>1. Courts — Jurisdiction of Federal Court as Affected by State Laws.</p> <p>When a right is conferred by a state statute, which is not in conflict with the constitution or laws of the United States, the courts of the United States, sitting in such states, can and must enforce such right in the cases in which such courts have jurisdiction.</p> <p>2. Same — Jurisdiction of United States Court — New Rights and Remedies.</p> <p>New rights and-remedies may have the effect to add to and increase the business of the court, hut that in no proper sense increases the jurisdiction of the court.</p> <p>3. Same — Construction of State Statutes ^Construction of Section 721, Rev. St.</p> <p>The course of decisions on section 721 of the Revised Statutes has resulted in the rule that not only the state statute, hut also the settled construction of it By tiie highest court of the state, will be followed by the United Slates courts, and where it establishes a rule of property it is binding upon the courts of the United States sitting in such states.</p> <p>4. Samis — Validity of State Statute — Suction 3880, Code Ala.</p> <p>Section 3886 of the Code of Alabama, which gives a simple contract creditor the right to go into a court of equity without first obtaining a judgment at law and a return of no property, to reach property which has been fraudulently transferred, whether in the strict sense of the statute a rule of decision or a rule of property, is a law which the state of Alabama is competent to pass, and is operative in the circuit courts of the United States sitting within that state.</p> <p>5. Constitutional Law — Knurr of Trial by Jury — Equity.</p> <p>If a case made by a bill is one of equity cognizance, the right of trial by jury is not guarantied either by the federal or state constitution.</p>

<p>1. Statute op Limitations — Assignee of- Bankrupt — Action for Redemption of Stock Pledged by Bankrupt.</p> <p>A pledgee of stock for an admitted debt, and for a debt not then capable of being ascertained, the validity of the debt algo being admitted, who holds simply as a pledgee, not claiming absolute ownership, and who has taken no steps to change his equitable to an absolute title, has not the adverse interest which the statute requires in order to compel the assignee in bankruptcy of the pledgeor to institute a suit within two years from the date of his appointment.</p> <p>2. Equity — Parties—Amendment.</p> <p>In view of the peculiar features of the case, permission allowed plaintiff to amend his bill, and suggestions given as to the persons necessary to be included as parties defendant.</p>

<p>1. Life Insurance—Condition in Application as to "when Policy shall be in Force.</p> <p>Where the application for insurance provides that the policy shall not be in force until it is delivered to the applicant, the contract of 'insurance will not become binding upon the company until delivered.</p> <p>2. Same.</p> <p>Where such a condition is contained in an application by a husband forin-surance on his life for bis wife’s benefit, the fact that the bondition is printed, and the name of the wife as beneficiary is written, will not prevent such condition from beingbinding upon her.</p> <p>3. Same—Delay.</p> <p>Semble, that unnecessary delay upon the part of the company in passing upon the application, and delivering the policy, would not operate to bind it as insurer in case of the applicant’s death before such delivery; and that, where the application was received at 4 v. m. one day, and acted upon the next day. the delay was not improper.</p>

<p>1. Public Lands — Act op Congress op September 30,1850 — Swamp and Overflowed Lands.</p> <p>The act of congress of September 30,1850, granting to each state then In the Union its swamp and overflowed lands, effected an immediate transfer of interest, which cannot be defeated nor in any way impaired by the delay or refusal of the secretary of the interior to have the required list made and patent issued.</p> <p>3. Same — Issue op Patent — Parol Testimony.</p> <p>Wherever the secretary of the interior has made out and certified a list of the swamp and overflowed lands as required by the act of congress of September 30,1850, which confers them upon the state in which they are situated, and has issued the patent, his determination is so far conclusive as to the character of the land that it cannot be collaterally attacked; but where he has failed to make such list, and to issue the patent, it is competent for the state, or parties claiming from it, to prove by parol testimony that the land is of the character mentioned in the act of 1850.</p> <p>8. United States and Executive Department — Navy Officer — 'Unjustifiable Retention op Property.</p> <p>The.fact that one is an officer of the navy of the United States, and is acting under their orders, gives no justification for the retention of the premises against the claim of the true owner.</p> <p>4. Waters and Water-Courses — Islands—Limit to Private. Ownership.</p> <p>Private ownership of the land of Mare island did not, under the grant of the Mexican government, extend to lands regularly covered each month by the flow of the tides.</p> <p>5. United States and Executive Departments — Statute op Limitations.</p> <p>Legal proceedings to enforce the claim of a citizen to lands in possession . of the United States cannot be taken, and the statute of limitations cannot run against one to whom the courts are thus closed for the maintenance of his claim.</p>

<p>Patents t?or Inventions—Const Ruction ov Clams.</p> <p>The fust, claim of the Charles H. Helms patent, Ho. 173,281, of February 8, 1876, for improvements in sole-edge burnishing-machines, viz., “in combination with the burnishing tool, and the rest for the face of the sole, the finger rest, D, substantially as described,” construed, and held, that the words “the rest for the face of the sole” refer to the flange or guard which projects from the tool, and not to the upper surface of the finger rest below the tool.</p>

In Admiralty. Petition by tlie owners of a vessel condemned and sold for the payment of damages, in a cause of collision, for leave to avail themselves of the benefits of the act limiting the liability of vessel owners, (Rev. St. § 4283,) and praying that freight earned, wages due, salvage, and general average, subsequent to the collision, be deducted from the proceeds.

<p>Motion to Remand.</p>

<p>1. Awards—Eights of Parties to.</p> <p>Where one oí two parties who had submitted machines to the American Institute for an award of a me,dal for superiority, filed a bill to restrain the Institute from granting, and the other party from receiving, said medal, held, that prior to the time when the parties submitted themselves for the award there was no existing right of property or right of action in complainant adverse to either of the defendants.</p> <p>2. Same—Equity Jurisdiction.</p> <p>A party who has submitted his machine for an award has no right to invoke the aid of a court of equity to compel the making of an award of superiority in his favor, non to restrain the making or carrying out of an award in favor of his competitor.</p>

<p>1. Receivers—Liens—Contracts.</p> <p>Where the order of court appointing a receiver of a company directs him to carry out and perform the company’s contracts, creditors to whom money is due upon partially performed speculative contracts are not entitled, under such order, to a lien therefor prior to that of mortgage creditors.</p> <p>2. Debtor and Creditor—Payment.</p> <p>Where a debtor sent his accepted drafts on a third person to a creditor, with directions to collect them, and apply the proceeds to the payment of the amount duo him, and the acceptor made an assignment, and such creditor presented the drafts to the assignee, and obtained an allowance, hut collected nothing, held, that such action on the creditor’s part did not amount to such an appropriation of the acceptances as to release his claim against the original debtor.</p> <p>3. Contracts—Sa lbs—Damages.</p> <p>Where a manufacturer contracts to furnish, at a stipulated time and price, articles which he is engaged in manufacturing, and the other parly to the contract refuses to receive such articles when tendered, the measuroof damages is tlie difference between the cost of manufacture and the contract price, and, in the absence of evidence to the contrary, the market value will bo taken as the cost of manufacture.</p>

<p>Witness — Suits by and against Executors and Administrators.</p> <p>Tbc exclusion of testimony of parties to actions by or against executors, administrators, or guardians, under section 858, Rev. St., does not extepd to an inquiry incidental to taking an account, and not upon an issue which is the subject of a decree.</p>

<p>Railroads—Mortgages—Foreclosure—Compensation op Trustees and Attorneys.</p> <p>Fifteen hundred dollars allowed to New York trustees, and §5,000 to those residing in Quincy, Illinois, §5,000 to New York counsel, §5,000 to counsel in St. Louis, and §3,000 to counsel in St. Joseph.</p>

At Law. Motion to strike out and dismiss. For opinion upon motion to make the original petition more definite, see 27 Fed. Eep. 182. For opinion on demurrer to the amended petition, see 27 Fed. Eep. 338.

<p>Taxation — Action to Recover — Illegal Tax — Overvaluation of Property.</p> <p>The defendant, the city of Portland, by its proper officers, deliberately valued the mortgages of the plaintiffs, for municipal taxation, at double the value it did all other lands for such purpose, and levied a tax thereon accordingly; which was paid by the plaintiffs, under protest, to an officer charged with the duty of collecting the same, on a warrant addressed to him by the defendant, having the force and effect of an execution against the property of the plaintiffs. Held, that the persons charged with the valuation of the plaintiffs’ property had jurisdiction of the subject, and the proceeding was quasi judicial, ana therefore the result reached is so far conclusive that the legality of it cannot be questioned in an action at law to recover back the one-half of said tax as illegal.1</p> <p>NOTE.</p> <p>Taxation — Tlusgai, Assessmeot^-Recovekst op Tax: The proceeding for the assessment of property is judicial in its character, Santa Clara Co. v. Southern Pae. By. Co., 18 Bed. Bep. 385; Miller v. Hurford, (Neb.) 12 N. W. Bep. 832; Moss v. Cummins, (Mich.) 6 N. W. Bep. 843; and the judgment, though erroneous or unjust, is not void, McDonald v. City of Bscanaba, (Mich.) 29 N. W. Bep. 93; Miller v. Hurford, (Neb.) 12 N. W. Bep. 382; Attorney General v. Sanilac Sup’rs, (Mich.) 3 N. W. Bep. 2C0; but, if the assessment be imposed without jurisdiction, it is void, Breucher v.Village of Port Chester, (N. Y.) 4 N. E. Bep. 272.</p> <p>The collection of a tax will not berestrained for inequality in assessment without payment or tender of the portion justly due. Dundee Mortgage Trust Investment Co. v. Parrish, 24 Fed. Bep. 197; Grimmell v. Des Moines, (Iowa,) 10 N. W. Bop. 330.</p> <p>A payment undera void assessment is voluntary,’and cannot be recovered. Sonoma Co. Tax Case, 13 Fed. Bep. 789, and note; Dunneíl Manufg Co. v. Newell, (B. I.) 2 Atl. Bep. 766 ; Welton v. Merrick Co., (Neb.) 20 N. W. Bep. Ill; Younger v.Board Sup’rs, etc., (Cal.) 9 Pac. Bep. 103. See, to the contrary, Breucher v. Village of Port Chester, (N. Y.) 4 N. E. Bep. 272; Newsom v. Board Com’rs, etc., (Ind.) 3 N. E. Bep. 163; Thomas v. City of Burlington, (Iowa,) 28 N. W. Bep. 480; Winzer v. City of Burlington, (Iowa,) 27 N. W. Bep. 241.</p>

<p>1. Deeds Executed at Same Time, for Same Purpose.</p> <p>Whore a deed ol trust and mortgage are executed at the samo time to secure the same notes, they should ho considered as one instrument.</p> <p>2. Mortgages—Provision as to Notes Becoming Due in Case oe Default.</p> <p>Where a mortgage provides that, upon default in the payment of either of the notes secured thereby, all shall become “ immediately due, at the option of tho holder,” “immediately duo” means “ immediately upon or after the holder’s election, ” and ho is not hound to elect immediately after default.</p> <p>8. Same.</p> <p>Such a provision does not simplyrender tho notes due for purposes of foreclosure in case the option is exorcised, hut for all purposes.</p>

<p>1. Set-Ofe an» Counter-Claim:—Contract—Rev. St. Mo. § 3522.</p> <p>In a suit on a contract by an alleged assignee thereof, the defendant may, under the Missouri practice act, set up as a counter-claim a breach of a contract between himself and the plaintiff; and the fact that he alleges that such contract is the one sued on does not make his answer demurrable.</p> <p>2. Same—Contract—Variance.</p> <p>Semble, that where, in a suit upon a contract, the plaintiff sues as assignee thereof, there can be no recovery if the evidence shows that the contract was made with him.</p>

<p>Estoppel—Damages fob. Death of Minor—Earnings During Minority—Rev. St. Mo. 2133.</p> <p>A satisfied judgment for damages for the death of a minor, recovered under section 2123, Rev. St. Mo., by his parents, is a bar to a subsequent common-law action by such parents to recover the loss of their child’s earnings during minority.</p>

<p>Mutes and Minino Cuaijis — Attthoiíity of Agent.</p> <p>A banker who brought suit for advances made a mining company through its superintendent, acting as agent, was allowed to recover the amount, with interest; the superintendent having implied authority, unless limited by notices given him from the company, to give orders for such advances to' persons who have debts against the company lor labor and materials to run the mine.</p>

<p>Patents fob Inventions—Suit fob Inb'bin&ejiisnt—Profits—Master's Report.</p> <p>The report of tlie master, finding that at least one-half of defendant's profits made from his manufacture and sale of infringing pumps was due to the use of the patent in suit, sustained, and a rehearing of the case denied.</p>

<p>Patents for Inventions—Willard Pish Pocket—Patent No. 240,630.</p> <p>Patent No. 240,630, granted to Henry E. Willard, April 26,1881, for improvements in fishing apparatus, is void for want of invention.</p>

<p>Patents for Inventions—Time-Locks.</p> <p>Letters patent Nos. 284,049 and 284,142, of August 28, 1888, to Henry F. Newbury, for improvements in mode of mounting time-locks, construed, and held limited by the prior art to the particular modes of isolating time-locks set out in the patents, and that defendants, employing substantially different mechanism, did not infringe.</p>

<p>Patents — Infringement—Injunction Pending Issue.</p> <p>Where a patent lias been applied for on an invention, the court has jurisdiction to grant an injunction to restrain its infringement pending the hearing.</p>

<p>1. Carriers-Of Goods by Vessel — Dischabge of Cargo — Delay—Permanent Refaibs Unnecessary fob Voyage — General Ayebage.</p> <p>Repairs made necessary by a general average cause are a subject of general average affecting the cargo, so far as the repairs arc reasonably necessary to-enable the ship to prosecute the voyage; but a ship is not justified in discharging a large amount of cargo, or in incurring long delay, for the purpose of making permanent repairs, when comparatively slight and temporary repairs, reasonably sufficient to complete the voyage, could be made speedily, and with small change in the cargo.</p> <p>2. Same — Transhipment of Sugab — Loss in Weight — Secondary Drainage.</p> <p>The bark Queen, from Bahia to New York, loaded with a cargo of sugar, having met with heavy weather, which broke one of the carlines of the main hatch, and caused a crack in the main beam, put into St. George for necessary repairs. Jb’or the purpose of putting in a new main beam, when the court found the crack in the old beam could have been sufficiently repaired for the voyage at slight expense and with little delay, she unshipped a large part of the cargo, and incurred a delay of six weeks longer than would have been needed for temporary repairs, during which time the sugar, through the transhipment and change of temperature, as the court found upon the facts, incurred a large and unusual loss of weight hy “secondary drainage.” Helé, that the ship was liable for the unusual loss in weight thus caused.</p>

In Admiralty. This was a libel against the scow Eugene Yesta and her cargo, to recover for the services of the tug International in rescuing the scow and her cargo from being wrecked on the shore of Lake Erie at the port of Tyrconnell during the month of August, 1885. The services were renderd at the instance of the master of the scow.

<p>On Exceptions to Commissioner’s Report.</p>

<p>1. Admiralty- — Jurisdiction-—Equitable Title.</p> <p>A court oí admiralty will not try the equitable title to a vessel, or compel the performance of a' mere trust, when there is no evidence of a maritime contract between the parties.</p> <p>2. Same — Maritime Contract — Sale oe Vessel as Collateral Security.</p> <p>A bill of sale of a vessel as collateral security for the repayment of a loan, or as indemnity against loss on the contingent payment of obligations assumed for the vendor, is not, per se, a maritime contract.</p>

<p>1. Removal otp Cause — Separable Controversy — Tenants nr Common.</p> <p>in a suit to quiet title brought by two tenants in common against three defendants, in which two of the defendants disclaim, and the remaining one defends, and seeks, by cross-petition, to have his title quieted against plaintiffs, alleging that they claim under a tax deed and a sheriff’s deed, the controversy between said defendant and plaintiffs is not a severable one, and no part thereof cgn be properly removed to the United States court, if said defendant is a citizen of the same state with one of the plaintiffs, although he is a citizen of a different state from that of the other plaintiff.</p> <p>2. Samis — Rem AND — -Facts Appearing- Difitseently in United States Court —Plea in Abatement.</p> <p>A removal to the United States court having been properly ordered by a state court, upon petition and bond being filed for that purpose, the petition showing both plaintiffs to be citizens of a different state from that of the only defendant who defended, (the other defendants disclaiming,)but, upon a trial of a plea in abatement filed in file United States court, the facts as to citizenship appearing differently, and not such as to give jurisdiction, the case is remanded to the state court.</p>

<p>Con RTS—FEDERAD Co URTS—STATE STATUTES.</p> <p>The construction of a state statute by the supreme court of that state, when the question is one of local statute, and not of general commercial law, is binding upon the federal court, llabasse v. Parish of Terrebonne, 30 La. Ann. 287, followed.</p>

<p>In Equity. An ancillary bill and motion for preliminary injunction.</p>

<p>1. Taxes — National Bank Shares — Discrimination—Rey. St. IT. S. § 5319.</p> <p>If it appear that the capital represented by national bank shares is subjected in a state to a higher rate of taxation than is assessed upon the moneyed capital generally of the tax-payers, there can be no valid assessment of national bank shares for taxation in that state; and these shares will be relieved from any contribution whatever to the general burden of taxation under Eev. St. U. S. § 5319.</p> <p>2. Same — New York Taxation Laws — Exemptions.</p> <p>Taxation laws of the stato of Now York considered, and held tobo designed to subject to equality of burden all taxable property, both real and personal, except investments in life insurance companies, deposits in savings banks, the public stocks, and tbo bonds of the municipalities of the state.</p> <p>8. Same — Itrcv. St. U. S. § 5219.</p> <p>Section 5219, 'Rev. St. IT. 8.. relating to state t axation of national bank stock, was not intended to control the power of the state on the subject of taxation, or to prohibit the exemption of particular kinds of properly, but to protect tlie capital invested in national bank sitares from unfriendly discrimination by the states in the exorcise of the taxing power.</p> <p>4. Same — Equality—Intention—Operation.</p> <p>it does not destroy the equality of a state’s system of taxation that, in spite of the laws, a part of the moneyed capital of citizens which is invested in forms 1 hat enable it to bo easily traced, does not escape by evasion or oversight, and is consequently moré effectually readied and taxed than the bulk of the moneyed capital of individuals.</p> <p>5. Same — Corporate Property and Stock — Shanes os Stockitoi/dsoes,</p> <p>The capital stock of a corporation and the shares held by the several stockholders are distinct species of property for the purpose of taxation, — as distinct as real estate and the mortgage by which it may be incumbered.</p> <p>6. Same — State Taxation Laws — Dtsoktmekation—Rev. St. IT. 8. §5219.</p> <p>if the taxation laws of a state subject to taxation the capital stock of certain corporations, but exempt tho shares held by the several stockholders, while the shares of national bank stock arc subject to taxation in the hands of tlio shareholders, but the capital stock itself is exempt, held, that there is here no such discrimination against capital invested in national banks as to run counter to the provisions of Rev. St. IT. S. § 5219.</p> <p>7. WORDS and Phrases — “Moneyed Capital.”</p> <p>The term “moneyed capital” has a more limited meaning’ than the term “personal property, ” and applies to such capital as is readily solvable in money.</p> <p>8. Taxation — Exemptions—Rubric Policy.</p> <p>The exemption from taxation, by the laws of Now York, of shares of life insurance companies» of stock and bonds of Now York city, of bonds of other state municipalities, and of deposits in savings banks,'is justified by public policy, and does not indicate any unfriendly discrimination on the part of the stale as between the shares of national banks and moneyed capital generally.</p>

<p>1. Fraudulent Conveyances — Preference—Giving a False Credit — “Boom-ink” an Insolvent Concern.</p> <p>If a creditor of a commercial firm, whose insolvency is known, to him but not to the public, helps the firm to keep going, and to extend largely the scope of its business and credit, under a promise of preference over other creditors in case of disaster, which under the circumstances is clearly probable, and the firm, having obtained large quantities of goods on credit, turns them over to this creditor in payment of his demands, keeping nothing for other creditors, the transfer of the goods will be deemed fraudulent.</p> <p>2. Same — Preference Unlawful.</p> <p>Upon the facts of the case, held, that the preference given was unlawful.</p>

<p>Witnesses — Dependant under Indictment Witness in Another Case— Mileage and Witness Fees.</p> <p>A defendant in attendance upon court under indictment, under recognizance, who is also under recognizance as witness for the United States in another case, is entitled to his mileage and witness fees for attendance in the latter case.</p>

On Demurrer to Declaration. This was a.n action of debt to recover a penalty of $1,000 for the importation of a foreign laborer, in violation of the act of congress of February 26, 1885, prohibiting the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States.

<p>Malicious Prosecution—Absence of Probable Cause.</p> <p>In order to succeed in an action for damages for malicious prosecution, it is necessary that there should have been absence of probable cause on the part of the defendants.</p>

Assumpsit. Demurrer to declaration and instructions to the jury. The National Express & Transportation Company was incorporated by the legislature of Yirginia in December, 186S, with a capital stock of four million of dollars, divided into shares of $100 each, payable, after an initial installment, as might be called for by the president and directors.

<p>1. Criminal Law—Amount Named in Indictment.</p> <p>Vfhere an amount is named in an indictment., it is not necessary for the jury to find that the whole of it was covered by the wrong that was perpetrated. It is enough to find that any of it was.</p> <p>2. Conspiracy—Defrauding United States.</p> <p>A conspiracy is a breathing together. It means that, on the part of two or more persons, there was a common purpose, supported by a concerted action, to defraud; that each had the intent to do it; that it was common to each of them; and that each understood the others as having that purpose.</p> <p>3. Same—Last Sickness.</p> <p>The last sickness means the sickness that results in death. It may be more or less extended; according to the circumstances of the diseaso. In an acute disease, where a man was well until he was confined to his bed, and then died, it would count only from the time he was prostrated; but if it was a lingering case, admitting of transient temporary recuperation, followed immediately by relapses, and every day adding to the aggregate weakness, the last illness would commence from the time this consumption, in a pronounced way, set in.</p>

Indictment under Rev. St. U. S. § 5480, for using the mails for the furtherance of a fraudulent scheme and device. The section reads as follows: “See. 5480.

<p>1. Patents for Inventions—Infringement.</p> <p>A patentee granting a license to manufacture and sell cannot file a bill upon tbe patent as for an infringement, upon tbe failure of tbe licensee to pay the royalty, unless a condition of forfeiture be inserted in tbe agreement, but is left to bis action for bis royalty or rent.</p> <p>2. Same—Damages—Profits.</p> <p>An action merely for an account of profits and damages on a license cannot be maintained in equity. There must be some equitable ground of relief in addition to tbe mere demand for an account of that kind.</p>

In Equity. Demurrer to bill. This is a suit brought by the plaintiffs, on behalf of themselves and other similarly situated stockholders in the Globe Panorama Company, against said company and A. J. Cooper, I. B. Krum, T. E. Patterson, J. E. Young, and G. S. Ingraham.

In Equity. This is a suit, by the creditors of Jacob G. Maag, to subject certain real and personal property, which is claimed by his wife, Nancy A. Maag, to the payment of their claims. The master has made two reports in tbe cáse, — an original and a supplemental one. The original report discloses the following facts: Jacob 0. Maag had been in partnership with one Lonis 0. Frey, under the firm name of Frey & Maag.

<p>1. Equity—Pleading—Variance.</p> <p>The rule that proof and pleadings must correspond is to be applied equitably, and not rigidly, especially when the party claiming its benefit is in full' possession of the facts, and therefore not misled by a pleading which although inaccurate in some details, yet contains sufficient averments to support the-relief prayed for.</p> <p>2. Covenant—Covenants oe Seizin and General Warranty.</p> <p>A deed with covenants of seizin and general warranty of land, to which the grantor has no title, is good in equity as a contract for a conveyance, and title afterwards acquired by the grantor inures to the benefit of the grantee or his heirs.</p> <p>3. Fraudulent Conveyance—Case Stated.</p> <p>A. conveyed to 'Z. an undivided one-sixth interest in mineral lands which he had discovered, the deed for which had been made to K., who paid the-purchase money. There was an understanding hetwoon K. and A. that the latter should have an interest in the lands for his services, but there was no formal or written contract., — nothing upon which specific performance could have been decreed. Subsequently, at A.’s request., and in consideration of said services, K. conveyed a one-third interest in the lands to B., A.’s wife. She bad full notice of the deed to Z., and the conveyance was made to her because of the deed to Z., and to avoid trouble on account of it. Held, that such conveyance was in fraud of Z.’s rights, and that B. must convoy the undivided one-sixth interest to Z.’s heirs.</p> <p>4. WITNESS — INOOMPETBNCY—BTATIi AND JfUDHEAT, STATUTES.</p> <p>Defendant, under the state statutes, would be incompetent to testify, the complainants claiming under a deceased person; but. held, that the federal courts are controlled by section 858, Rev. St. U. S„ under which he is competent.</p> <p>f> Contract — Rescission.</p> <p>Under the facts disclosed by the proof, the court held that no contract of rescission of the sale by A. to'Z. had been proved.</p> <p>0. PRINCIPAL AND AGENT — SURRENDER OF Afimi — RATIFICATION.</p> <p>An unauthorized surrender of a note to its maker does not relieve him from liability to pay it; and the payee cannot, ratify the surrender because the parties making it had no authority to make, the "surrender, and did not in making it oven profess to act for the payee.</p>

<p>On petition for rehearing by Mr. H. Villard.</p>

<p>In Equity. Motion for a preliminary injunction to restrain the use of the word “Eureka.”</p>

<p>Municipal Corporations — Liability fob Obstruction in Street — Failure to Warn op Dangerous Obstructions jby Lights.</p> <p>Whore a person, -while driving along a street at night, was injured by being thrown Jrom a carriage which came in contact with rubbish obstructing the street, of which he was not properly warned by lights, the city was held liable for damages.1</p>

<p>Petition for Appointment of Supervisors of Election.</p>

<p>Appeal from Taxation of Costs.</p>

This was an informal appeal from the taxation of costs. In delivering the execution to the marshal, the clerk minuted on the back, in addition to the amount of the judgment, interest, and costs, a charge of $18.15 for clerk’s commission on the amount of the judgment. Defendant paid the amount of the execution to the marshal, and requested the opinion of the court as to whether the clerk was entitled to a commission. The matter was submitted without argument.

Writ of Error to the District Court. This was an action brought by the United States to recover legacy taxes imposed by the act of congress of June 30, 1864.

Writ of Error to the District Court. See 27 Fed. Rep. 541. This was an action brought by the United States to recover legacy • taxes imposed by the act of congress of June 30, 1864.

<p>Indictment for Carrying on Retail Liquor Business without License.</p>

Indictment. The indictment charges four separate offenses: (1) That the defendant carried on the business of retailing liquor without posting in his place the stamp denoting the payment of the special tax required by law; (2) that lie carried on the said business without having paid the special tax required by law; (3) that he carried on the business of dealing in manufactured tobacco without posting in the place the stamp denoting the payment of the special tax required by…

At Law. Action for damages for the infringement of letters patent No. 77,-920, granted to Herman and Louis Boyer, May, 12, 1868, for an improved machine for treating raw hides for belting, etc. The essential features of the machine described in the specification of the plaintiff’s patent are (1) a vertical cylindrical cage, the bars or rollers of which are rounded on the inner face, and are attached immovably at both ends to rings; (2) a vertical slotted shaft, passing down…

<p>Patents for Inventions—Actions—Questions for Jury.</p> <p>■ Where a bill was filed for infringement of two patents, and, upon tbe final bearing, tbe following questions were presented: First, whether tbe plaintiff S. or the defendant H. was tbe first inventor of the device claimed in one of tbe patents; and, second, bad tbe invention been in public use more than two years before application for said patent? held, that tbe first question presented a simple issue of fact, proper for tbe determination of a jury, and that tbe second question, which depended upon conflicting testimony, could be more satisfactorily determined by bearing of tbe witnesses in person.</p>

<p>In Admiralty. Suit for damages and wages.</p>

<p>Collision — Tug and Tow —Negligencia-Recovery aoainst One oe Both Vessels.</p> <p>Vyhen a collision is caused by the negliirencc of two vessels, proof that the disaster could have been prevented by one of them is not sufficient to exculpate the other. The entire damage may he recovered from one vessel, though both bo in fault, if one only is served.</p>

<p>1. Puomissoky Notes—Negotiabimty—Exemptions.</p> <p>A note is not rendered non-negotiable by tbe addition ol the following stipulation, viz.: “We do hereby relinquish and waive the benefit of all laws exempting real and personal property from levy and sale. ” 2</p> <p>3. Same—Exchange.</p> <p>A note is rendered non-negotiable by the incorporation therein of an agreement to pay the sum named, “with * * * exchange.”3</p> <p>NOTE.</p> <p>Promissory Notes — Nkootiability. .1. An instrument containing a stipulation waiving the benefit of exemption laws is not, according to the law-merchant, a negotiable instrument, Oayuga Oo. Nat. Bank y. Purdy, (Mich.) 22 N. W. Rep. 93; nor is one containing stipulations in regard to the title or right of possession of the property which constitutes its consideration, Id.; Johnston Harvester Oo. v. Clark, (Minn.) 15 N. W. Rep. 253; Deering v. Thom, (Minn.) 12 N. W. Rep. 350; Stevens v. Johnson, (Minn.) 9 N. W. Rep. 677. But see, to the contrary, Merchants’ Nat. Bank v. Chicago Ry. Equip. Co., 25 Fed. Rep. 809; Bank of Carroll v. Taylor, (Iowa.) 25 N. W. Rep. 810.</p> <p>2. Anote providing for a certain rate of interest, with a provision foralowerrate if paid when due. is negotiable, and, in legal effect, calls for interest at the lower rate only. Smith V. Crane, (Minn.) 22 N. W. Rep. 633. To the contrary, Story v. Lamb, (Mieli.) 18 N. W. Rep. 218; 8. C. 8 N. W. Rep. 87.</p> <p>A provision for an attorney’s foe to be paid in the event of suit being brought is void. Merchants’ Nat. Bank v. Sevier, II Fed. Rep. 662, and note; I)owv. Updike, (Nob.) 7N.W. Rep.857. Such provisions were held valid in Adams v. Addington, 16 Fed.Rep.90; Wilson S. M. Co. v. Moreno, 7 Fed. Rep. 806; Bank of British N. A. v. Ellis, 2 Fed. Rep. 44; but they destroy the negotiable character of the instrument, in Dakota, Garretson v. Purdy. 14 N. W. Rep. 102; in Minnesota, Hardin v. Olson, 14 Fed. Rep. 705; Johnston Harvester Co. v. Clark, Í5 N. W. Rep. 252; Jones v. Radatz, 6 N, W. Rep. 800.</p>

<p>Taxes — Sale—Improper Assessment — Inadequate Price.</p> <p>Under the Missouri statutes, an improper assessment of a piece of land as several tracts, instead of one, and the sale of the land for an inadequate price under a judgment for the taxes assessed against it, will not invalidate the sale.2</p>

<p>1. Costs — Taxation—What Allowed — Travel of Witnesses.</p> <p>Fees for travel of witnesses in going and returning can only be taxed once for each occasion of taking testimony, although, each occasion embraces a number of days.</p> <p>2. Same — Depositions.</p> <p>Costs are not taxable for depositions taken for use upon an accounting before a master and in contempt proceedings as for depositions for the final hearing, notwithstanding they are referred to upon a motion for rehearing which results in a dismissal of the bill as upon a final hearing.</p> <p>3. Same — Examiner’s Fees.</p> <p>Upon a charge of §1,275 for fees paid an examiner, §1,085 thereof disallowed.</p>

In Equity. The intervenors sue for the value of four car-loads of grain which the Wabash, St. Louis & Pacific Railway Company undertook, before being placed in the hands of a receiver, to transport to Troy, New York, and there deliver to intervenors, but which it failed to so transport and deliver; and the intervenors pray that the sum claimed to he due them be ordered to he paid out of the rents and profits of the property in the hands of the receivers of said road.

At Law. Replevin suit for 10,000 granite paving blocks seized under a writ of replevin, and delivered to the plaintiffs upon their giving the statutory bond. A writ bad been duly issued from the office of the clerk of the circuit court of Wayne county, Missouri, a court of general jurisdiction.

This is a proceeding by mandamus against the judges of the county court of St. Charles county to enforce the satisfaction of a judgment recovered in this court upon certain bonds and coupons issued by St. Charles county, under certain acts of 1869 and 1870-, for the improvement by drainage of certain lands lying in spid county known as the “Marias Temps Clair District,” and to that end compel the levy of a sufficient tax to pay said judgment—less the amount of $1,687.50,…

<p>1. Extradition — Bight or Individual Prosecutor.</p> <p>Extradition is a right of foreign governments only, not of ind'mdaals.</p> <p>2. Same — Complaint—Authority to Make.</p> <p>“Complaint on oath” for the arrest and commitment of a person for the purpose of extradition, under section 5270, Rev. St., must he a complaint by some one authorized to represent the executive department of the foreign treaty power; and, if the complaint be made by a private individual, his authority to act in behalf of the foreign executive should be made to appear before the proceedings before the commissioner are closed, or the proceeding should be dismissed.</p> <p>8. Same-Discharge oe Prisoner.</p> <p>No such evidence in this case appearing, and two weeks having elapsed, the prisoner was, on habeas corpus, discharged.</p>

<p>Appeal from the District Court for the Southern District of New York. Deported 24 Fed. Rep. 860.</p> <p>The libelant, while employed as a laborer on ship-board, sustained personal injuries for which he attached the vessel. The district court held that the accident was in part caused by his own negligence, and apportioned the damages.</p>

<p>In Admiralty. Collision. Libel in rein by the owners of one of two colliding vessels.</p>

<p>In Admiralty. Action in rem, against tug and tow, by the owners of a vessel moored in a river.</p>

<p>Seamen — Lien por Wages— Proceeding in Rrh by a Master to Recover tub Wages op a Shaman — Actuad and Substituted Master.</p> <p>One who is employed by the charterers oí a vessel to act as master, and who serves in that capacity, will not be permitted to avail himself of a subterfuge as a means of recovering- seamen’s wages from the vessel. The fact that in the owners’ application for a license the name of another person appears as maste.r, will not estop them from showing the truth.</p>

<p>COURTS — United States Circuit Court — Suit to Foreclose Mortgage Pending Former Suit eor Accounting in Another Ur,strict.</p> <p>Complainant, being a non-resident of tlie stale, files a bill for the foreclosure of a mortgage in'the United States circuit court of the Western district of Michigan; defendant, being a resident of the -Eastern division, had prior thereto filed his bill against, present complainants for an accounting of the amount due on the mortgage, claiming that certain credits with complainants were applies,ble to the payment of the mortgage, and the same was thereby paid, and therefore the mortgage and notes should be decreed to be canceled. Personal service was had upon the defendants in that suit, and it was still pending. Held that, while the 'suit in the Eastern district was not strictly pleadable in abatement, the court should stay all further proceedings in the Western district until the determination of the suit in the Eastern district.</p>

<p>Discovery — Defense—Denial that Evidence ivill be of Assistance.</p> <p>A defendant cannot defeat a full discovery by denying that the evidence will be of assistance to complainant. It is only when it can be seen that the interrogations, if answered affirmatively, would not assist the complainant in establishing his cause of action, that answers will be dispensed with.</p>

<p>In Equity. Bill for foreclosure of mortgage.</p>

<p>Costs — Equity—Changing Course op Legal Decisions.</p> <p>After an -injunction bad been obtained in a suit in equity by tbe plaintiff express company, restraining tbo defendant railroad company from excluding tbe plaintiff’s messengers and express matter from tbe defendant’s railroad, tbe decree was changed, in accordance witb tbo decision in mispress Oases, 117 V. S. 1, S. C. 6 Sup. Ct. Rep. 542, 628, 1190, to a decree dismissing tbe bill, and for reference to a master to ascertain amount to be paid to tbe defendant railroad company for carrying plaintiff's messengers and express matter during the pendency of tbo injunction. Held, that defendant was entitled to have tbe bill dismissed, with costs, and costs allowed by master to whom matter bad been referred.</p>

<p>In Equity. Demurrers to bills.</p>

<p>,L Trusts—Pbea pro Tamo.</p> <p>Where ihe purpose of a bill in equity is the enforcement of an alleged trust, and rights springing therefrom, a plea in bar to so much of the bill as asks lor the enforcement, of such trust, setting up a prior adjudication against the complainant, is good.</p> <p>2. Same—Decree without Prejudice—PitEADums.</p> <p>Where a, suit in equity, brought to enforce a parol trust, was submitted on the pleadings and proofs, and a decree was entered dismissing the bill “without prejudice to auv parties to enforce” a trust created by a certain deed to one of the defendants, and without prejudice to any of the rights created by a certain will, held, that this was a, linal determination of the merits of the controversy, and settled the question of the existence of the parol trust, against the complainants, and that the decree could he pleaded in har in a subsequent suit by the same complainant to enforce the same trust.</p>

<p>1. Railroad Companies — Mortgage—Bonds—Deed op Trustees op Railroad-Mortgage — Contract to Convey.</p> <p>Where a holder oí bonds of a land-grant railroad, secured by a mortgage to trustees of its franchises and lands, accepts a proposition from the railroad and trustees to receive certain lauds in payment of his bonds, and takes a deed therefor executed by the trustees, the participation of the railroad in the contract to convey estops it from setting up the absence of authority of the trustees to execute the deed to convey the lands in question in an action on a covenant in the deed that the railroad will warrant and defend the title.</p> <p>2. Same — Reorganization—New Railroad Company Taking Rights and Liabilities op Old.</p> <p>Where plaintiff has accepted a conveyance of lands, in payment of bonds secured by mortgages of the lands and franchises of a railroad company, and its entire property has passed to defendant company under a decree of foreclosure of the mortgages, in which decree it is declared that the defendant company “is a new company, formed * * for the benefit of all parties concerned in” the former company, “whether as stockholders, bondholders, or creditors,” it being expressly provided that “this decree shall not absolutely bar, foreclose, or cut off any of the indebtedness aforesaid, but that the-holders thereof shall be entitled to have and receive of” defendant company stock according to other provisions of the decree, defendant is liable on the-covenant of warranty in plaintiff’s deed.</p> <p>8. Same — Decree Making Acceptors op Benefit Consent.</p> <p>In a decree of foreclosure under which a now railroad company takes all' the rights, and, by giving stock therefor, assumes all the obligations, of a former railroad company, a provision “that it is only such persons as consent to-come in under the provisions of this decree that shall be entitled to receive stock, ” etc., means that all persons availing themselves of the benefits of the-decree shall be deemed to have consented thereto, and not that a claimant, in order to avail himself of the benefit of the decree must have been a party to-the foreclosure suit.</p> <p>4. Statute op Limitations — Covenant op Seizin.</p> <p>In Iowa, a covenant of seizin runs with the land, and the statutory limitation does not begin to run until there has been an actual and substantial, breach of the warranty.</p>

<p>■Garnishment — Trust Deed — Li.uulity of Trustee —Section 1088, Rev. Law's Vt. Where there was a conveyance of real estate to a trustee upon consideration of a certain sum of money, which ho agreed that he would “well arid truly pay, or cause to ho paid, to the exoneration of the seller, under special hypothec” of the real estate, to certain creditors of the seller, in several amounts named, within two years, held, that the sale was unconditional, and without, reserve, and that t.lio trustee did not have the lands of the seller within his hands, within the meaning of section 1088, Rev. Laws Vt.,relating to trustee process. IleJd, further, that the amount due from the trustee to the seller was a credit of the seller in the hands of the trustee, and subject to at-ta chment.</p>

<p>GARNISHMENT — ACTION TO ENFORCE PERSONAL Liaiuhtt of Director,— CONTRACTUAL OBLIGATION.</p> <p>'Pile personal liability oí a director of a prívale corporation, under section. 3391, Rev. St. Vt., for the excess of indebtedness above two-thirds o£ its paid-up capital stock contracted by his consent, is to be considered as a liability founded on contract, and an action to enforce it can therefore be begun by trustee process.</p>

Opinion in Case Stated. Plaintiffs were commission merchants, doing business in Philadelphia. They made advances on six bills of lading, issued by the defendant at Mansfield, Tioga county, Pennsylvania, for hay, oats, etc., shipped over their road. The consignor obtained the goods fraudulently. When the owners discovered the frauds, they issued attachments under the Pennsylvania statute of July 12, 1842, (Purd.

<p>Action for Damages. Demurrer to petition.</p>

<p>1. Habeas Corpus — Jurisdiction of United States Courts and Judges.</p> <p>W. and F., being subjects of and domiciled in the kingdom of Belgium, engaged in a fight on board of a Belgian ship while lying moored to a wharf in Jersey City, and within the territorial jurisdiction of Hudson county, New Jersey. JÍ. was stabbed with a knife and killed by W. Both belonged to the crew of the ship, and the fight took place below deck, the only witnesses present being other members of the crew. AY. was arrested and committed to jail by the local authorities of the county, on the charge of murder. The Belgian consul, for the states of New York and Now Jersey, sued out a writ of habeas corpus for the discharge and surrender of the prisoner on the ground that, under the law of nations and by force of existing treaties between the United States and Belgium, AY. was entitled to be sent home for trial under the laws and by the tribunals of his own country. JIM, that section 753, Rev. St. U. S., giving power to the courts and judges of the United States to grant writs of habeas corpus in certain cases, therein specified, does not extend to the case of the prisoner.</p> <p>2. Article 11 of the Treaty of 1868 between the United States and Belgium Construed.</p> <p>Article 11 of the treaty of 1868 between the United States and Belgium does not confer authority on foreign consuls to take cognizance of offenses committed against the local laws of this country. It makes no provision for the creation of a consular court, nor does it authorize the consul to act even as a committing magistrate.</p>

<p>CONTRACTS—EVIDENOW.</p> <p>An alleged contract must be proved before it can. be enforced.</p>

<p>Pilots—Delaware Statute oe April 5, 1881—Act oe Congress oe Maroii 2, 1837, (Rev. St. U. S. § 4236.)</p> <p>The act of congress conferring the privilege on masters of vessels of selecting pilots other than pilots of the state of Delaware does not entitle them to refuse a Delaware pilot when they have no other.</p>