Volume 33 — Federal Reporter

<p>1. Specific Performance—When Enforced.</p> <p>Equity will not decree specific performance of a contract to purchase real estate, when the vendor is unable to oiler a marketable title to the purchaser; and a title open to a reasonable doubt is not a marketable one.</p> <p>3. Deed—Conditions—Forfeiture.</p> <p>The clause in a deed, “provided, and this deed is upon condition, that no building shall ever be erected upon such premises nearer to M. street than the house of O. now stands, ” creates a condition as distinguished from a limitation or covenant, and the whole estate conveyed becomes liable to forfeit ure in case of a breach of the condition.</p> <p>3. Same.</p> <p>Although the courts lean against forfeiture, and will construe words as creating a covenant or restriction instead of a condition, which are capable of such construction, they are not to ignore the settled legal significance of the language employed.</p> <p>4. Vendor and Vendee—Defect in Title—Determinable Fees.</p> <p>Complainant agreed to sell, and defendant to buy, certain real estate, with a dwelling-house thereon fronting on M. street; “title tobe good or sale void; and sale subject to restriction against building beyond the present front line of the house. ” Held, that defendant was entitled to a clear title, free from all incumbrances except a servitude restricting the mode of use of the strip of land between the front line of the house and M street, and that it was a good defense to a suit for specific performancethat, the complainant’s interest in the land was a base fee, liable .to be determined as to the entire tract upon encroachment on the strip in question for building purposes; sucha defect in the title not being susceptible of pecuniary compensation.</p> <p>5. Specific Performance—Recovery of Money Paid.</p> <p>Defendant, in a suit for specific performance of a written contract for the purchase of land, may recover the earnest money paid, without filing a cross-bill. where the title oilerod is bad, and the return of the money is insisted upon in the answer.</p>

At Law. Action by John T. Way, as trustee of the will of Thomas P. Way; against defendant, Charles T. Russell, on a note for $1,000, payable to the order of the executor of the will of said Thomas P. Way.

At Law. The plaintiffs, Pope & Davis, were the mortgagees of 5,000 bushels of corn. The mortgagor sold the same to the defendant, James Porter, who agreed to pay the mortgage debt as a part of the purchase price. Defendant sold the corn, and, refusing to pay plaintiffs the amount of the mortgage, they brought this action to recover under the agreement between the defendant and the mortgagees. Defendant demurred. Cummins & Wright, for plaintiffs.

<p>Insurance—Mutual Benefit Societies—Designation of Beneficiaet.</p> <p>Tlie constitution of an “liotel-men’s mutual benefit association” permitted a change in the beneficiary, hut provided that.it “must” be done on a prescribed form of blank, the signature to which should be attested before a notary, and the change entered on the hooks. It also provided that, at death, benefits should be paid “to the person designated in the application for membership, as shown by the hooks, or as ordered by last will. ” An applicant for membership named his wife as beneficiary in his application, and her name was so entered upon the books. His application also set out that the receipt of the party to whom he designated his death loss to he paid should discharge the association. Ho subsequently executed a paper assigning his policy to one of his creditors as collateral security; but no application for a change was made to the association, nor was the assignment made upon the prescribed blank, nor had the association any notice of it until after t,he death of the member intestate, when both the widow and the assignee claimed the benefits. Held, on bill of interpleader, that the widow was entitled to the fund.</p>

In Equity. In substance, the bill in this cause sets forth that the complainant, the Shickle, Harrison & Howard Iron Company, made a contract with the- American Construction Company, of New York, and the Council Bluffs City Water-Works Company, whereby complainant agreed to furnish material for the construction of the water-works at Council Bluffs, the construction company agreeing to pay therefor the prices fixed in the contract, and the water-works company guarantying the…

<p>Payment—To Agent—Authority.</p> <p>In an action for tbe foreclosure of a mortgage, the defendant pleaded payment and discharge. Prom the evidence, it appeared that the broker to whom payment had been made had been engaged in negotiating loans for complainant for about eight years; that during that time he had collected-nearly all the interest as it became due on the different loaus, and in many instances the principal also, though payable elsewhere; that, with reference to these loans, he had the management of the complainant’s entire business, notifying delinquents, paying taxes, and attending to the foreclosures. Letters of inquiry regarding the manner of payment of the loans, and the broker’s authority to accept payment of the principal before maturity, were referred by complainant to the broker for reply. Held, sufficient evidence that the broker was a general agent, duly authorized to accept payment of interest and principal, even before maturity.</p>

<p>Bill for Foreclosure of Mortgage.</p>

<p>Limitation of Actions—Bankruptcy—Suspension of Bight of Action.</p> <p>Defendants were adjudged bankrupts in 1874, and plaintiffs proved their claims against them. A discharge was denied defendants in 1882. To an action brought by plaintiffs in 1887 to enforce their claims, defendants pleaded the limitation of 10 years. Bev. St. Ill. c. 83, £ 23, provides that, when an action is Stayed by statutory prohibition, such time is not part of the time limited for the commencement of actions, and Bev. St. U. S. § 5105, prohibits a creditor who has proved his claim to maintain suit pending the proceedings in bankruptcy, and provides that such creditor shall not be held to have waived his right of action “where a discharge has been refused, or the bankruptcy proceedings determined without a discharge. ” - Held, that plaintiffs were entitled to maintain their action against defendants.</p>

<p>1. Criminal Practice—Removal from District—Rev. St. § 1014.</p> <p>Where a removal is sought, under section 1014, Rov. St., of an accused person from the district where he is found- to the district where the alleged offense was committed, there should be a preliminary examination to establish the identity of the prisoner, and his probable guilt, before a warrant for his removal is issued by the judge.</p> <p>2. Same.</p> <p>In such a case, the judge is not required to decide absolutely the question of guilt or innocence; nor is he authorized to discharge the accused if there he some doubt of guilt.</p> <p>3. Same.</p> <p>If identity is shown, and a case of probable guilt made, it is incumbent upon the judge to issue a warrant for the removal of the prisoner to the proper district, where a jury may determine, upon all the evidence, the question of guilt or innocence.</p> <p> {Syllabus by the Court.) </p>

<p>Criminal Practice—Sentence—Place of Confinement—Power of United States District Courts. ■</p> <p>A woman, duly convicted'in the district court of the Eastern district of New York, was sentenced to he imprisoned in the state prison at Auburn, but the warden refused to admit her, because he was not permitted by the laws of the state to receive female prisoners. The court thereupon, during the same session, but in the absence of the convict, made an order modifying the sentence by substituting the Erie County Penitentiary as the place of confinement,. Held, on habeas corpus, that the criminal jurisdiction of the district courts being purely statutory, and it being apparent from the provisions of Rev. Bt. U. B. §§ 5541,5543, 5548, 5546, tit. 70, c. 9, relating to “prisoners and their treatment.” that the designation of the place of imprisonment is no part of the judgment, such an order could be made in absentem.</p>

<p>Patents for Inventions—Pare Registers—Limitation of Claim—Infringement.</p> <p>Claims 1, 2, 4 and 5 of letters patent No. 208,565, of July 30,1878, to Charles B. Harris, for an “improvement in fare registers, ” must, by reason of the limitation of the boundaries of the invention in the description and in view of the prior state of the art as indicated by the Morgan-Brown British patent of August. 15,1877, (which sets forth three Italian fare registers and modifications thereof, the invention of Joseph Mazari, of Italy,) be limited to the specific mechanical devices which constitute the novelty of the combination. These devices are the employment of a direction indicator so organized in relation to the registering mechanism, both trip and permanent, that it cannot be changed to indicate a different direction of travel without first bringing the trip register to the starting point and so adapted to co-operate with the registering mechanism as, upon such change, to effect a transfer from the trip to the permanent register of the record of fares collected. So limited, these claims are not infringed by a fare register in which the permanent register is not actuated by the act of resetting the trip register, but only when the trip register is making its original record, and in which there is no locking device to detain the direction indicator, so that it cannot be moved until the trip register is reset at zero.</p>

<p>In Equity. Bill for injunction.</p>

In Equity. Bill for injunction. ■ Bill by Good, complainant, against Bailey & Lewis, defendants, to enjoin the infringement of certain letters patent granted complainant for an improvement in flax-drawing machines.

In Equity. Bill for injunction. Bill by plaintiff against M. E. Kae and others, defendants, to enjoin the infringement of a patent granted to I). A. Swaney, for a method of putting up blankets and similar articles.

<p>Patents for Inventions—Infringement—Injunction—Foreign Patent.</p> <p>Plaintiffs purchased an invention upon which a British patent had been obtained, but which had expired before the purchase by reason of the failure to pay the fee t.o keep it alive. They then obtained American patents, and sought to enjoin defendants from infringing uj)on them. Held, that there was too much doubt of the validity of the American patents to warrant the issuing of a preliminary injunction.</p>

<p>In Equity. Bill for injunction.</p> <p>These are actions in equity, asking for a temporary injunction to restrain defendant from infringing a patent, and for an accounting. It appears that the complainant, Samuel Kittle, was the inventor of a spiral spring for use in mattresses, (Kittle v. Hall. 29 Fed. Rep. 508;) that January 4, 1870, he obtained a patent for his invention, which patent expired January 4, 1887. The number of the patent was 98,505. Actions were brought against several defendants for infringement, the bills being verified from 30 to 50 days before the expiration of the patent, the day for appearance being about a month before the expiration of the patent, and the day for answering or demurring being January 3, 1887. The defendant demurred on the ground that the patent had so short a time to run that the court had no equity jurisdiction.</p>

<p>Plea in Equity.</p> <p>This is an action for the infringement of letters patent No. 247,766, granted to the complainant October 4, 1881, for an improvement in button-hole cutters. The object of the inventor was to construct a pair of button-hole scissors, with the screw-shaft and nut, which fix the definite play of the arms of the scissors, located between the arms. One end of the screw-shaft is firmly attached to one arm of the scissors; the other end fits into a funnel-shaped hole in the arm opposite, which'gives a support to that end of the shaft. The claim is as follows:</p> <p>“As an article of manufacture, a button-hole cutter, having the screw-shaft, D, securely fastened to one arm of the cutter at one end, and the other end resting in a conical recess in the other arm of the cutter, the' nut, C, working on the shaft, D, between the two arms, all constructed and arranged substantially as and for the purpose described. ”</p> <p>The application as first filed was rejected upon reference to two prior patents, the examiner holding that the change was a “mere work-shop expedient” not involving invention. The complainant then changed the claim to its present form, and forwarded the amendment to the commissioner, with a letter in which he thus distinguishes his invention from the examiner’s references:</p> <p>“The construction in applicant’s case is different. One end of the screw-shaft is securely fastened to the inside of one arm, and the other end rests in a conical recess in the other arm, and forms a support for this end, and the nut works on this screw shaft, and forms the seat fixing the limit of the cut of the cutter; and the entire length of the screw-shaft is between the external sides of the arms of the cutter, thus making the cutter more compact and less cumbersome.”</p> <p>Tlio bill is in the usual form. The defendants have filed a plea, alleging the above facts, and insisting that they do not infringe the patent, for the reason that the only adjustable button-hole scissors made, used, or sold by them do not contain the “conical recess in the other arm of the cutter,” or any equivalent therefor. A pair of the defendants’ scissors is annexed to and made a part of the plea. They show a screw-shaft attached to one of the arms, but neither the screw-shaft, nor the nut which works upon it, enters a hole in the opposite arm, for the reason that there is no hole there of any kind. It is argued for the defendants that the only construction which can be given the patent excludes their device, and that the complainant is concluded from urging any broader or -different construction, by reason of the proceedings in the patent-office, and the language employed by him in the description and claim. The complainant set the plea down for argument.</p>

In Admiralty. Libel by the Dunham Towing & Wrecking Company against the schooner Ottaiva, respondent, for the services of a tug while detained in port by stress of weather.

<p>1. Salvage—-Good Faith oe Ldbiolant—Interest.</p> <p>A partner in a firm to -whom a schooner was consigned was also interested in a lighter company, the libelant, who claimed salvage on the schooner. Held, that his interest in no way affected the good faith or right of the libel-ant to recover.</p> <p>% Same.</p> <p>A person had contracted to discharge the cargo of a vessel, outside or at the wharf, for a stipulated price; after the work had been begun, the vessel was driven ashore. Held, that his previous contract did not affect his right to claim salvage for services on the same cargo after the wreck.</p> <p>8. Same—Eight on Libelant—Non-joinder ov Parties.</p> <p>A libelant employed men, and paid liberally to render salvage services. Held, that libelant was entitled to compensation, and the amount should not he reduced on the claim that the persons employed by them were entitled to compensation. They should join in the suit or make claim to the proceeds, if any are in the registry of the court.</p> <p>4. Samis—Compensation—One-Hale Salvage.</p> <p>A schooner loaded with railroad iron wont ashore in Galveston hay. The vessel and cargo were salved by libelants under a contract with the master for 50 per cent, of the value; wrecking crews were paid extra sums, and pumps of large cost for that locality used, and the vessel and cargo saved at the risk of seriotis damage to the property engaged in the work of salvage, one of the lighters being injured, and tbe crews suffering much hardship, and 1he weight of the evidence showing that the cost of saving railroad iron wrecked on the gulf beach, on basis of work and laboi-, is 50 per cent, of its value. J/eJd. that the contract was reasonable, and a proper allowance for salvage would be 50 per cent, of the value of the property salved.</p>

I11 Admiralty. This action was brought to recover for the damages to the contents of some of the tranks of the libelant and his family, who were passengers upon the respondent’s steamer Eins, from Bremerhaven to New York, in October, 1886. On the night after the steamer left Bremerhaven, a tire, from some cause unknown, was discovered in the baggage compartment, where all the trunks were stowed.

<p>Shipping—Limitation op Liability—Jubisdiction.</p> <p>The circuit courts oí the United States have no jurisdiction by bill in equity, or otherwise, to enforce proceedings for limiting the liability of ship-owners under the provisions of sections 4282, 4284, and 4285 of the Revised Statutes. While these sections provide that a ship-owner may, under certain circumstances, limit his liability by appropriate proceedings in any court of competent jurisdiction, the circuit courts are not the tribunals designated. The statute'embodied in these sections created a new right, and by implication prescribed that it should be enforced in the district courts, and the remedy is confined to the jurisdiction provided by the statute which gave the right.</p>

<p>In Admiralty. On appeal from district court. 25 Fed. Rep. 846,-affirmed.</p>

<p>Removal or Cause—Local Prejudice—Affidavit.</p> <p>Section 2 of tlie act of March 3, 1887, (34 St. 553,) does not change the practico ns it formerly existed, so far as concerns defendants seeking to remove from state to federal courts on the ground of prejudice or local influence, in respect ol' plaint,ill's so seeking to remove, the act in express terms makes it the duty of the circuit court, on the application of the other party, to examine into 1he truth of the affidavit, and the grounds therefor; but tlie absence of any such provision as to defendants clearly indícalos that the law in this respect was not intended to be changed as to them.</p>

<p>1. Removal of Causes—Act of March 3, 1887—Citizens of Different States —Non-Resident Defendants.</p> <p>Where the suit involves a controversy between citizens of different states, and the federal jurisdiction depends solely on that fact, if the suit he one in which the plaintiff is a citizen of the state in which the suit is brought, and the defendant a non-resident of that state, the latter may remove the case from the state court in which it is brought to the proper federal court, under the act of March 3, 1887.</p> <p>2. Same—Original Jurisdiction—Districts in Which Suit mat be Brought.</p> <p>While the right of removal may depend on the capacity of the particular federal court to entertain original jurisdiction of the suit sought to be removed, the act of March 3,1887, permits á plaintiff to sue the defendant in the federal district of his own residence, as well as in that of which the defendant is an inhabitant, when the federal jurisdiction depends only on the fact of a diverse citizenship of the parties, and therefore such a suit is removable by the defendant, if brought in a state court of the plaintiff’s own state, as this was. Yuba Oo'unty v. Mining Go., 32 Fed. Rep. 183, considered.</p> <p>3. Same—Time of Removal—Code Tenn. §§ 5022-5094—Effect of Filing Answer.</p> <p>Under the provisions of the Tennessee Code, regulating equity proceedings ■ against non-resident defendants, and the equity rules of practice governing those courts, the filing of an answer or plea by the defendant does not abridge the time allowed for removal, and his petition is still in time if filed before the time elapses allowing him to defend the suit. It is the expiration of the time allowed to defend which terminates the right of removal, and not the filing of the demurrer, plea, or answer, under the act of March 3, 1887.</p> <p>4. Same—Order of Publication Fixing Time.</p> <p>If the order of publication he issued under the attachment laws, Instead of under the sections of the Code regulating chancery proceedings, it can have no effect to foreclose the time of removal, if the suit he of an equitable nature, and the attachment has issued on the fiat of the chancellor. The distinctions in procedure between these two classes of cases must he observed in their relation to the act of congress of March 3, 1887, regulating removal to the federal court.</p>

W. R. Davie and others, plaintiffs, sued J. B. Heyward and others, defendants, for the recovery of a tract of land, and recovered judgment for the land, and five dollars damages, in August, 1873. One of the defendants, being a minor at the time of the suit, became of age December 21, 1885, and applied for a citation for the purposes of a writ of error to the United States supreme court.

Petition for Writ of Habeas Corpus. Robert C. Stockton, a citizen of Missouri, was arrested for selling goods by sample as a drummer, without having paid the tax as provided by the laws of Texas, and applied to the United States district court for a writ of habeas corpus.

<p>At Law. Action to recover possession of realty. •</p> <p>Alex Hill, plaintiff, sued S. C. Weir and others, defendants, to recover certain lands.</p>

<p>Public Lands—Sale of Indian Lands—Action to Set Aside Patent.</p> <p>An act of congress, passed May 28,1880, required that applicauts for the settlement of certain lands, hold in trust for Indians, should have the qualifications of pre-emptors, and that they should be actual settlers, and make payment. After final receipts were issued to parlies entering upon tracts of such land, and they were bought and paid for by a third party to whom patents were issued, a'bill was filed by the government to set aside the patents, on the ground of fraud, and evidence was offered to show that the parties making the entries had never established residence upon the lauds, but were generally about a neighboring town or employed in another state. Held, that as the government did not by such evidence clearly and satisfactorily show that it had been defrauded, and that, as the parties entering had the qualifications of pre-emptors, were actual settlers, and had made payment, and the proceedings in the land-ofiice were regular on their face, and free from collusion between the purchaser and the parties entering, a decree would be entered dismissing the bill.</p>

<p>In Admiralty. Libel for damages.</p>

On Motion to Remand. Otto J. Nelson, as administrator, brought action for damages for the death of his intestate, caused by the falling of a building, making David J. Hennessey, the owner of the building, and Johnson, tho tenant in occupation, defendants. Hennessey was a resident of another state, and on that ground secured a removal to the federal court.

On Motion to Remand. The plaintiff, Allen M. Short, brought action against the defendant railroad company, in the state court. The defendant served an order of removal to the circuit court of the United States, whereupon the plaintiff moves to remand to the state courts, upon the ground that the affidavit upon which the order of removal was based was insufficient.

<p>1. Habeas Corpus—Discretion op Judge—Constitutionality op Liquor Law.</p> <p>A saloon keeper, who bad made no attempt to comply with the state liquor law, pleaded guilty when arraigned under an indictment charging him with having sold liquor without the license required by the statute. He was sentenced to be imprisoned until the line imposed was paid. Application was made to the United States district judge for a writ of habeas carpus, on the ground that the act under which the petitioner was prosecuted was unconstitutional, because it denied him the equal protection of the laws guarantied by Const. U. S. Amend. 14. Tlie particular act in question had never been sustained by the supreme court of the state. The district judge refused the writ. .Held, on appeal, that the granting of the writ rested in the discretion of the district judge, and, the facts showing no abuse of that discretion, his refusal of the writ should be affirmed.</p> <p>2. Intoxica ting Liquors—Constitutional Law—Consent op Freeholders.</p> <p>Code Ga. § 1419. as amended by the act of October 10, 1885, provides that no license to ret ail spirituous liquors shall be granted, except in incorporated cities or towns, unless with the “written consent of ten of the nearest bona fide residents, five of whom shall be freeholders, ’’etc. Held, that the exception in favor of such towns and cities was not unconstitutional as denying to saloon keepers in the counties the equal protection of the laws secured to citizens by Const. U. S. Amend. 14.1 2</p> <p>3. Same—Constitutional Law—License—Conolusivkness op Decision,</p> <p>Nor is that section of the Code in contravention of the fourteenth amendment because the decision of the court of county commissioners, and of the ordinary in counties where no such court exists, is made final and conclusive; it being within the power of the state to authorize the issuing of licenses to sell intoxicating liquors, and to determine the conditions upon which the person to whom, and by wliat officials, the licenses may be granted.1</p>

In Equity. Bill for injunction. All taxation must be uniform upon the same class of subjects. Const. Ga. art. 7, § 2. Complainant alone of the retail dealers in the state falling under the description “companies, ” is taxed under the statute. Classification of subjects must be in respect of the business taxed, and not of the persons engaged therein.

<p>1. Telegraph Companies—Taxation—Power oe State.</p> <p>Pub. St. Mass. e. 13, § 40, provides that every railroad and telegraph company shall pay annually a tax upon its corporate franchise, at a valuation thereof equal to the aggregate value of the shares in its capital stock, after deducting from such valuation such portion as is proportionate to the length of the line lying without the state; and also an amount equal to the value of the real estate and machinerj' located and subject to loca’ taxation within the state. II Id, that the right to tax telegraph companies under this statute is not impaired by Rev. St. IT. S. §§ 5363-5266, conferring certain privileges on telegraph companies.</p> <p>2. Constitutional Law — Interstate Commerce — Taxation oe Telegraph Companies.</p> <p>A tax levied under Pub. St. Mass. c. 13, §40, providing for the taxation of railroad and telegraph companies, is not void as repugnant to Const. U. S. art. 1, § 8, which gives congress power to regulate commerce between the several states.1</p>

<p>Contract—Construction.</p> <p>Negotiations were carried on between plaintiff and his brother and the president and secretary of defendant, which resulted in a contract, the terms of which were not, however, reduced to writing. As to these, plaintiff testified, and he was corroborated by his brother, that the ditch companies in which defendant was interested should issue increased new bonds to the amount of $1,000,000, which they did, defendant to take new bonds for its old holdings as well as for advances already made, and in payment of loans to be made, and the obligations of the ditch companies indorsed to it by plaintiff should be surrendered. Defendant claimed that, until plaintiff had found customers for the excess of the new over the old bonds, and effected the exchange of bonds of the new series for those of the old, and transferred t.o defendant one-half the capital stock of the ditch companies, it was to hold all its obligations and liens as collateral. The evidence showed that defendant represented to other parties making inquiries as to these bonds and enterprises thatit knew of no “special dangers” or “risks” attending them. Entries made on the books of defendant showed the receipt of new bonds in payment and discharge of advances to the ditch companies; and in its annual statement for 1884, and in that for 1885, sworn to by its officers, are enumerated, under “Account of stocks, ” etc., new bonds, not merely covering old holdings .of bonds, but also defendant’s other advances. Erom letters of defendant it further appeared that it expected to make advances to the amount of $150,000. Held, that the evidence sufficiently established a contract substantially as testified to by plaintiff; that the notes and obligations to it indorsed by plaintiff had been paid and satisfied, and should be surrendered; that all securities held simply as collateral should be returned; and that complainants were entitled to an accounting.</p>

On Motion for Judgment for Defendant on the Pleadings. These were actions in ejectment brought by Martha A. Moulton, a mortgagor, against James IT. Leighton and Ephraim F. Leighton to recover possession of mortgaged premises.

<p>1. Waters and Water-Courses—Incorporation of Manufacturing Company —Water Privileges of.</p> <p>Tbe act of December 17,1856, (Sess. Laws, 47,) declaring certain persons and tbeir associates to be a corporation by tbe name of tbe “Wallamet Woolen Manufacturing Company, ” for tbe purpose of creating and improving water-powers and privileges and manufacturing, conferred on said corporation tbe power to dispose of the whole or any part of tbe “privilege” therein granted, to take and conduct water from tbe Santiam river at or near Salem, and the “hydraulic power” thereby created.</p> <p>2. Trusts—-Creation of—Designation of Cestui que Trust.</p> <p>A trust estate may be created without a cestui que trust in existence, so that one is named in the trust, and comes into being, and may be distinguished during the life of the trustee.1</p> <p>3. Waters and Water-Courses — Grant of Water Privileges — Construction.</p> <p>P. and wife, for a valuable consideration, granted W., W. and B., to the use of the Wallamet Woolen Manufacturing Company “alone, ” the right to take water from the Santiam anywhere on their donation, and to cut and maintain a canal over and upon said donation capable of carrying sufficient water from said river for the purposes of said company at Salem. Held, (11 that under the act of 1854, regulating conveyances, (2 Laws Or. § 3005,) the duration of the easement granted depends on the intent of the parties, and the estate of the grantor in the land burdened therewith, both of which show that the easement was granted in fee-simple, and is perpetual and assignable with the dominant estate or land in connection with which it is used; (2) that the word “alone” only signifies that the grant was made for the «ote use or benefit of the company, and not the trustees or other person; (3) that the grantee of the easement, and its successors in interest, are entitled to cut and maintain a ditch over and upon any part of the donation necessary to enable it to take the water from the Santiam, and if, by reason of a change in the bed of the stream or other like cause, it becomes necessary to deepen, widen, or prolong said ditch to get said water, it may be done. •</p> <p>4. Injunction—Trespass.</p> <p>Equity has jurisdiction to enjoin and prevent the commission of a continuous trespass, on the ground of the inadequacy of the remedy at law.</p> <p> (.Syllabus by Che Oouri.) </p>

<p>Motion to Discharge the defendant Kressel, as the surety on a recognizance.</p>

<p>1. Pleading—Bill of Particulars—Sufficiency.</p> <p>In an action by one partner against bis copartners, the complaint set out ■ that, in the absence of the plaintiff, without his consent or approval, the defendants maliciously wrote letters to four consignors of the firm, naming them, “and others, ” repudiating contracts already made, and that the effect of the letters was that “one or more of said consignors” thereupon withdrew their consignments, to plaintiff’s damage, etc. The plaintiff was required to serve a bill of particulars in explanation of the plirases, “and others, ” and “one or more of said consignors.” He did so by naming some manufacturers, and stating that the persons referred to were all customers of the firm, and that their names would appear from the books which were in. the possession of the - defendants. Held, that the bill was sufficient.</p> <p>2. Same.</p> <p>The plaintiff alleged that he had been injured by such conduct of the defendants to the amount of §25,000, “independent of any alleged loss or profit shown by the books of the firm, as resulting from said business, ” (of the firm.) He was required to serve a bill .of particulars specifying the items of damages. The bill, as served, set out thaj; the damages were made up of a certain percentage of “business” for a certain time. Held, that the bill was not sufficiently certain; the “business” upon which the percentage was calculated not being indicated with clearness.</p>

<p>Deposition—Interruption of Taking—Admissibility of Part Taken.</p> <p>In an action in admiralty, while the deposition of libelant was being taken de bene esse, and before respondent had completed the cross-examination, the interpreter, whose services were necessary, refused to act further, and another could not be obtained before the witness left port. That part of the deposition that had been taken was signed by the witness, and produced upon the trial. Held inadmissible.</p>

<p>1. Costs—Security for—Time for Application.</p> <p>A bill for an accounting was filed against an administrator. The issues were made up, the case referred to the master, and his report made, the cause having been on the docket for three terms, when the defendant made a demand on plaintiff for security for costs. ■ Held tint, at this stage of the proceedings, security for costs can he had only upon the order of court.</p> <p>2. Infancy—Suit by Next Friend—Record.</p> <p>Complainants in abill for an account against an administrator were a widow and three children. The widow, being of unsound mind, sued by her next friend. Defendant objected to the parties plaintiffs, for the reason that the other plaintiffs had sued in their own names and not by their next friend. Held that, as there was nothing in the record showing their disability to sue, the objection was untenable.</p> <p>3. Courts—Federal Circuit Courts—Jurisdictional Amount.</p> <p>Where the representatives of a deceased intestate bring suit against an administrator under one title and for a common undivided interest,, the United States circuit court will, in the absence of any; other valid objection, have jurisdiction, although the amount, which on division would come to each representative, may he less than the jurisdictional minimum.</p> <p>i. Executors and Administrators—Accounting—Limitation of Actions.</p> <p>In an action against an administrator for an account, no final report having been made, and no acts done showing that in his opinion his trust had terminated, hold, that the statute of limitations had not begun to run in his favor.</p> <p>5. Same.</p> <p>Action was brought in 1887 against an administrator, whose intestate had died in 1800, to compel an accounting for money received in 1872. Held, that defendant could not avail himself of the presumption arising from the lapse of 20 years.</p> <p>6. Same—Accounting—Equity Jurisdiction of Federal Court.</p> <p>Whenever it is intended to proceed against the sureties on. an administrator’s bond, the United States circuit court has original jurisdiction in equity to compel an accounting by the administrator without a preliminary accounting before the probate court.</p> <p>7. Same—Accounting—Estoppel.</p> <p>Where the administrator of an estate sues, obtains judgment, and issues execution, deposits the money received from the sale on execution, and draws dividends, as such administrator, he is estopped from denying that he received and is responsible for the money as administrator, though his receipt to the sheriff therefor was signed by him in his individual capacity.</p> <p>8. Same—Commissions—Money in Default.</p> <p>In an action against an administrator for an accounting, held, that defendant was not entitled to commissions on money for which no account has ever been rendered, and for which he is in default.</p>

<p>Dotted States Commissioners—Docket Fees.</p> <p>. United States commissioners are impliedly authorized to keep a docket, and . entitled to docket fees therefor. ■ ■</p>

<p>Petition for Writ of Habeas Corpus. On appeal from the district court.</p> <p>John Karl Horres, an alleged fugitive from justice of the province of Ontario, in the dominion of Canada, held in custody under extradition proceedings, applied for a writ of habeas corpus, upon the return of which in the United States district court of Minnesota, a decree was entered discharging the prisoner. See 32 Fed. Rep. 583. From this decree the case is brought to the circuit court.</p>

<p>1. Perjury—Indictment—Allegation of Defendant’s Oath.</p> <p>In an indictment for perjury, it must distinctly appear tbat the defendant was sworn.</p> <p>2. Same.</p> <p>An allegation tbat tbe defendant did “depose and swear” to tbe truth of tbe answers contained in tbe deposition following, does not show tbat tbe defendant was “sworn” to tbe truth of said answers.</p> <p>3. Same. '</p> <p>One may “swear” who is not “sworn;” and in such case tbe oath is not administered, but self-imposed, and tbe swearer incurs no legal liability thereabout.</p> <p> {Syllabus by the Court.) </p>

<p>Indictments for Perjury.</p>

<p>On Bill and Cross-Bill.</p>

<p>Negligence—Personal Injuries—Unlashing Wheel — Acting without Orders.</p> <p>Libelant, an experienced seaman, was placed to await orders in tbe wheelhouse of a steam-barge which was being- towed. He unlashed the wheel without orders, and as the rudder came into contact with an obsti action on the bottom, the wheel revolved and injured libellant who tried to hold it. Held, that he was guilty of contributory negligence.</p>

<p>In Admiralty. Libel on charter-party in personam.</p>

<p>Collision—Lookout—What Constitutes—Attention to Various Duties.</p> <p>Libelant, having the right of way, was run into by respondent in a thick night. It was in evidence that the respondent's lookout had been dividing his attention between looking out and reefing sail. Held that, where a vigilant lookout might possibly have prevented the result, the plea of inevitable accident should not be sustained when that duty was neglected.</p>

On Motion to Sot Aside Nonsuit. Tliis was an action upon contract to recover damages for the refusal of the defendant, the Ypsilauti Paper Company, to accept and pay for 800 tons of rags which it had agreed to buy of the firm of 8. Simons & Son.

At Law. On plea to the jurisdiction. Herman Newgass, a German citizen, sued the city of New.

In Equity. Bill by Edward Harland, receiver pendente lile of the American Rapid Telegraph Company, for the possession and control of certain property in the hands of the receivers of the Bankers’ & Merchants’ Telegraph Company, to establish a lien upon certain stock pledged or mortgaged to the Farmers’ Loan & Trust Company, and for other relief. This bill, at a former hearing, was dismissed without prejudice to the complainant to bring such other suit as he might he advised.

<p>EsTorncn—By Deed—Recitals.</p> <p>A person made a will, devising her real estate to her niece, her mothor, and her brother, and “to the survivor of them, and to the heirs and assigns of such survivor.” The mothor died, and afterwards the brother undertook to convey by deed to the niece his share of the estate, in. fee-simple, the deed reciting that said property was now vested in him and in said niece in fee-simple. and that he desired the whole fee to be vested in said niece. Some years after, the niece died, leaving ttie brother survivor. JIM, the estate was held by the devisees in joint tenancy; and the fee-simple, being contingent on survivorship, did not vest in the brother until several years after the date of his deed. Yet when, from the contents of a deed, it appears manifestly that the parties believed they were negotiating for the fee, such a deed, containing such a recital, in the absence of fraud, being for a sufficient consideration, and not contravening the rights of creditors, will pass the subsequently acquired title.</p>

In Equity. Bill for an accounting. In this case, the original bill alleged that on the first day of December, 1884, Daniel L. Wells, then being an inhabitant of the city of Milwaukee,-in this state, died testate, leaving a will, whereby Helena M. Wells was appointed executrix, and Ephraim Mariner and George P. Lee Were appointed executors thereof; that about January 12, 1885, upon the petition of the executrix, the will of the decedent .was admitted to probate in the county…

<p>At Law.</p> <p>Peter Butler, receiver of the Pacific National Bank, plaintiff, sued William Aspinwall, defendant, for a subscription to an increase of the capital stock of the bank. Judgment for the plaintiff,</p>

<p>1. Partnership—What Constitutes—Contract.</p> <p>On February 24,1884, the parties entered into a contract whereby the plaintiff was to furnish the money, and the defendant was to obtain the title to the property in his own name, and manage it for a fixed compensation of 5 per cent, commission on sales, for their mutual benefit. In regard to the profits the contract further provided that when enough land had been sold to repay the plaintiff all the money he had advanced, with interest, then the remainder of the property should belong, 60 per cent, to the plaintiff, and 40 per cent, to the defendant, or if the remainder of the property'was converted into. money, then the proceeds should belong, 60 per cent, to the plaintiff, and 40’ per cent, to the defendant. Held, that the contract did not create a partnership between the parties.1</p> <p>2. Estoppel—Contract to Convey—Defective Title.</p> <p>A contract between the plaintiff and his agent, the defendant, provided that within four months after said agent shall have obtained the title to said lands, or sooner if desired by the plaintiff, said agent shall make a warranty deed to-said plaintiff for said lands. The agent claimed that he had not secured a perfect title, and refused to convey. The plaintiff was willing to take the title the agent had. Held, that it did not lie in the agent’s mouth to allege a defect in the title.</p> <p>3. Pjuxcital and Agent—Fraud of Agent—'Forfeiture of Rights.</p> <p>By his own admissions it appeared that the defendant, who was the agent of the plaintiff to buy certain property for the plaintiff, charged and received from the plaintiff §31,336.70 more than he paid for the property.^ Held, that i1 was a clear ca.se of gross misconduct; and that defendant had forfeited all the interest and rights given him by his contract with plaintiff.</p>

<p>Payment—To Agent—Authority.</p> <p>In a suit to foreclose a mortgage the defense was payment. The evidence showed that the loan had been negotiated through a broker in Des Moines, Iowa, who had the general oversight of the loans of the plaintiff, collecting the interest and principal of all loans as they fell due; that the plaintiff had expected the broker to collect and remit the interest on the mortgage in suit, to urge its payment when due, and to receive the money, and .forward it to plaintiff; that the defendant had never had any correspondence with plaintiff in regard to the loan; that the bond accompanying the mortgage was made payable at Westfield; New York; and that the defendant had paid to the broker, upon Ins demand, the amount due, though the broker did not at the time of such payment have in his possession the bond and mortgage. Held, that such payment was a discharge of the mortgage.</p>

<p>At Law. Suit to recover on a fire insurance policy.</p> <p>The Brighton Manufacturing Company, plaintiff, sued the Reading Fire Insurance Company for loss by fire.</p>

<p>1. Insurance—Conditions—Increase of Risk.</p> <p>A policy of insurance contained a clause that if the risk was increased with the knowledge of insured, and without notice to the company, the policy should be void. A manufacturing- company stopped work for a few days, cotton being high, and repaired its machinery meantime, whereby no use could be made of a steam-pump and hose connected with the engine, in case of fire. The policy permitted stoppage for repairs. Held, that there was no increase of risk by this temporary stoppage; following Brighton Manuf’g Co. v. Reading Fire Ins. Co., ante, 232.</p> <p>2. Same— Conditions—'Vacant and Unoccuiued Premises.</p> <p>A policy of insurance provided that if the building insured became vacant and unoccupied without the knowledge and consent of the company the policy .should be void. Defendant, a manufacturing company, temporarily stopped work, and repaired its machinery; the night and day watchmen were on dutj and the employes were at and about the factory from its closing until it burned. Held, that the building was in no sense vacant and unoccupied; following Brighton Manuf’g Co. v. Reading Fire Ins. Co., ante, 282.</p> <p>8. Same—Conditions—Cessation oe Business.</p> <p>A manufacturing company which closes temporarily and repairs its machinery, and is burned down in eight days, cannot be said to have ceased operating so as to avoid a policy of insurance.</p>

<p>At Law. Suit to recover on a policy of insurance.</p> <p>Action by the Brighton Manufacturing Company against the Reliance Insurance Company on a policy of insurance,. ■</p>

<p>At Law. Suit to recover on a fire insurance policy.</p> <p>Action by the Brighton Manufacturing Company against the Pire Insurance Company of the state of Pennsylvania on a policy of insurance.</p>

At Law. Action in trover. This was an action in trover by plaintiff, the Western Land & Cattle Company, against Simeon F. Hall, for the conversion of certain cattle. The declaration averred in substance that plaintiff was the owner of a herd of cattle valued at $15,000, and that, on or about December 27, 1884, the defendant wrongfully took and carried away 300 head thereof, with intent to convert the same to his own use.

<p>On Exception to Master’s Report.</p>

City Bank of Boone, plaintiff, sued S. L. Mershon and Bancroft,, defendants, to recover an overpayment alleged to have been made by the plaintiff in settling the accounts of the Boone Steel Barb-Wire Company, of which both were creditors, and the plaintiff trustee. Verdict for the plaintiff for $1,175.07, and motion for new trial by defendants.

<p>Customs Duties—What Subject to—“Seed”—Millet for Food.</p> <p>Millet seed, not in its natural state, but peeled, having the outer hull removed, and which will not germinate, used for making soup, and also for bird food, found by the jury not to be a “seed” within the moaning of the tariff act.</p>

Action to Recover back Customs Duties. On the trial the following facts were proved: Plaintiff imported on October 1,1883, 250 dozen bottles of ginger-ale. The invoice contained —First, an item of 250 dozen finest ginger-ale at a specified value; and, second, 250 dozen bottles at a specified value.

Action to Recover back Customs Duties. The following facts were proved on the trial: The invoices were all alike in form. Each consisted of a number of items of goods. At the foot of each item there was written “Deduct cost of rolling boards, making up, paper, ticketing, etc., at 2d. per piece, included in above price.” This cost was then carried out and deducted from the price of the goods, and the net balance carried out as the invoice value of the goods per se.

<p>Indictment for Preferring False, Fictitious, or Fraudulent Claim against the Government.</p>

<p>In Equity. On motion for a preliminary injunction.</p>

<p>Patents for Inventions—Novelty—JIay-Kakks.</p> <p>On a bill to restrain the infringement of a patent for the use of poles to guide horse hay-rakes, the proof showed that poles had long been used for that purpose. Held, that the patent was invalid for want of novelty.</p>

In Equity. On bill for injunction. Plaintiff, Arthur Kirk, filed his bill for an injunction and account against defendant, John E. Du Bois, for the infringement of a patent.

<p>In Equity. Action for infringement of patent.</p>

In Equity. On bill for injunction. Proceeding instituted by complainants, the Washburn & Moon Manufacturing Company and Isaac L. Elwood, to restrain defendants, Beat-Em-All Barb-Wire Company and others, from infringing letters patent No. 157,124, issued to J. F. Glidden, November 24, 1874, which complainants now own.

In Equity. On bill for injunction. Tho Columbia Rubber Company and others, complainants, filed a bill to enjoin Soman Klous, defendant, from infringing a patent granted to Amos W. Thomas, for improvement in bustles.

<p>1. Patents for Invenmons—Infringement—Injunction.</p> <p>It is not necessary for a patentee to establish the validity of his patent at law before he can obtain equitable relief for its infringement; but the chancellor may in his discretion require an action at law to be brought and tried, before awarding an injunction, if he doubts the validity of the patent.</p> <p>2. Same—Suit for Infringement—Law and Equity.</p> <p>A patentee may sue either at law or in equity for au infringement of his patent, according to the nature of the relief demanded.</p> <p>3. Same—Suit for Infringement—Certainty in Pleading.</p> <p>A bill to enjoin an alleged infringement of a patent described therein merely as an “Improvement in Cable Railways” is demurrable, as not showing with sufficient certainty in what the alleged invention consists.</p>

<p>In Equity. Bill for infringement of patent.</p>

<p>In Equity. On motion for preliminary injunction.</p>

In Equity. On bill for injunction. Bill by plaintiff, Edward L. McClain, to restrain defendants A. Ortinaver & Son and others from the infringement of letters patent owned by plaintiff.

<p>1. Patents fob Inventions—Infringement—Concrete Pavements.</p> <p>Plaintiff was the owner of a patent for laying a concrete pavement in blocks, so that one block might ho remoyed without injuring the rest of the pavement; the division being effected by putting tar-paper or some equivalent material between the blocks. Defendant first laid a lower course of concrete, removed the wooden frame around each block, and against the edges of the concrete placed paper, sand, or wood, to separate it from the adjoining block; then placed another course of concrete above, and cut through the upper course with a trowel, making the joints of the upper course coincide with those of the lower course. Held, that by the interposition of sand, paper, or wood between the blocks in tiie lower course, he infringed upon the patent of the plaintiff.</p> <p>3. Same—Utility—Concrete Pavements.</p> <p>The evidence showed that many attempts had been made to lay concrete pavement substantially in the mode described in plaintiff's patent, and that ■when so laid it materially affected the wear of the pavement, and prevented cracking by frost. Held,'that the patent was not void for want of utility.</p> <p>3. Same—Anticipation—Concrete Pavements.</p> <p>Plaintiff had a patent for laying a concrete pavement in blocks, so that the blocks could bo removed. Defendant plead that the patent was void for want of invention, in view of prior patents,—one for a concrete foundation for a stone pavement without joints, with removable panels; one for a combination for a pavement, but not covering any method of laying the substance: and one for laying strips of wood across the bed prepared for the concrete," and spreading the concrete over them, but not providing for forming blocks with, joints extending from the foundation to the surface, as did the plaintiff’s. Held, that none of these established the defense interposed by the defendant.</p>

<p>Patents fob, Inventions—Contbact to Assign — Sfecifio Pebfobhaitce—Isstje to Otiieb than Inventob.</p> <p>A bill to compel the specific performance to assign any patent which defendant might obtain for a certain invention charged that defendant, in order to evade his contract, had obtained the issue to a third party of a patent for an invention of which the defendant was the real inventor. Held, on demurrer, that, conceding the facts charged, the patent would be void, and specific performance of a contract to enforce the same would not be decreed.</p>

This was an action brought by Aaron S. Higgins el al., owners of the schooner Calvin P. Harris, for injuries sustained by the schooner while entering a dock belonging to the Lynn Gas-Light Company.

<p>1. Maritime Liens—Supplies—Bepore Vessel Launched.</p> <p>A contract to furnish necessaries for the use of a vessel during a voyage at sea is a maritime contract, though, at the time of making the contract, the vessel be not launched.</p> <p>2. Same—Contract—Supplies in Foreign Port.</p> <p>When a contract contemplates the furnishing of supplies to a vessel at a foreign port, it is to he presumed that a lien on the vessel was contemplated by the parties, unless something to the contrary appears.</p> <p>8. Same—Maritime Contract—To Supply Fishing-Nets.</p> <p>A contract to furnish nets to a fishing vessel is a maritime contract, in view of the subject-matter, though the contract be made on land and nets delivered on land; and if such nets are furnished when the vessel is in a foreign port, a lien for their price is created on the vessel.</p>

<p>In Admiralty. Libel for damages.</p>

<p>Courts—Federal Jurisdiction—District Where Suit may he Brought™ Act op March 3, 1887.</p> <p>Act oí' congress of March 3. 1887, § 1, provides that suit shall bo brought in the district of the residence of either party, when the action is between citizens of different states. Held, that federal courts will take jurisdiction when plaintiff is a resident of the district wherein he brings suit, and defendant a corporation created by laws of a foreign state.</p>

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

<p>In Equity. Bill for discovery.</p> <p>Tunis Covert, complainant, of Canada, filed a bill for discovery and marshaling of assets against S. J. Waldron and several hundred other defendants.</p>

In Equity. Ou demurrer. Bill filed by plaintiffs, Julia Fellows and others, against defendants, Daniel M. Hyman and Charles Burns, to set aside a deed convoying an interest in mining lands, made by the father of plaintiffs, since deceased. Defendants’ demurrer overruled.

In Equity. Bill to restrain sale of land under a trust deed. Sheffey and Bumgardnor, complainants, filed a bill against the Bank of Lewisburg and others, defendants, to restrain a sale of real estate under a trust deed, claiming they had a prior lien on the land.

<p>At Law. Action for damages.</p>

In Equity. On motion to dissolve an injunction. Bill for injunction by the United States to restrain defendant, the Cleveland & Colorado Cattle Company, from fencing up, and improperly using, part of the public domain.

<p>In Equity. Accounting before a master.</p> <p>Alexander Clark sued James Gr. Wilson, defendant, for infringement of patent. Decree for plaintiff, and reference to a master.</p>

<p>This .was an action to recover gauger’s fees paid- in 1857, 1858, and 1859, on importations of wine from Spain. The invoices stated the quantity in quarter-casks and octaves, and evidence introduced by the plaintiff tended to show that these were fractions of the pipe or butt, by which wines were bought and sold in Spain, and which, in the different Spanish ports, contained a definite number of gallons; that its capacity was not the same in all ports; but that the respective capacities of the Cadiz, Malaga, Barcelona, and other pipes was well-known to the trade, both there and here.</p>

<p>Indictment for Importing Contrary to Law.</p> <p>Kee Ho and Lee Ark were indicted for importing opium contrary to law.</p>

At Law. Action to recover back customs duties. The plaintiff’s firm of Lachaiso, Fauche & Co. in 1857 and the two succeeding years made 62 importations from France into the port of New York of certain mousseline delaines, composed wholly of worsted or worsted with a satin stripe.

<p>Oovi’RrGiiT—Plays—Mechanical Contrivance—Imitation of Biver.</p> <p>A mechanical contrivance consisting of a real tank, into which real water is made to fall, and running thence oil underneath the stage, representing a river into which in the course of a theatrical play the villain is made to fall from a bridge above, not being a link in the chain of incident which, together with the speech and action of the performance, constitute a series of events coneededly novel, is not such a mechanical contrivance as will be protected by copyright of the play in which it is introduced.</p>

At Law. On motion for a new trial. Action in trover, for the conversion of a set.of abstract books. Verdict for defendant, and motion by plaintiffs for a new trial.

In Equity. Bill to restrain infringement of patent. . Elizabeth Matthews et al., complainants, sued the Iron-Clad Manufacturing Company to restrain the infringement of a patent owned by them.

<p>Patents for Inventions—Prior Use—Harrows.</p> <p>Upon the consideration of the evidence in this case, upon the question of alleged prior use, held, that the Willett harrow did not anticipate the Garver harrow, so as to invalidate the patent.'</p>

<p>At Law. Motion to remand cause to state court.</p>

In Equity. On motion for leave to file supplemental answer, and to dissolve injunction. Action was brought by the Iron Silver Mining Company, plaintiff, against Joseph Reynolds and J. D. Morrisey, defendants, in the district court of the United States, district of Colorado, claiming title and right of'possession to certain mining property.

<p>On Motion. Bill of discovery.</p>

In Equity. On exceptions to master’s report. R. M. Cox and wife filed in intervention a claim against the receivers of the Texas & Pacific Railway Company, for damages from personal injuries sustained. The master reported, allowing claimants $1,400. The receivers excepted to the master’s report.

In Equity. On exceptions to master’s report. G. E. Tandy filed a claim in intervention against the receivers of the Texas & Pacific Railway Company for damage by fire ignited by one of the locomotives of the company to some mixed sedge and mesquite grass on his land, at the rate of $1.25 per acre. The master allowed the claimant one dollar per acre.

In Equity. On exceptions to master’s report. Joseph Schmidt filed a claim against the receivers of the Texas & Pacific Railway Company for damages caused by the destruction of millet by fire caught from a locomotive operated on the railway.

At Law. Action on the case. Motion to direct the jury to return verdict for defendant. John T. Johnston, plaintiff, sued the Western Union Telegraph Company, for damages for failure to deliver a message, in city court, Macon, Georgia; defendant removed the suit to the circuit court of the United States.

In Equity. Bill to foreclose a mortgage. This suit was brought by Samuel Mather against Elizabeth T. Jarel, the owner'of the mortgaged property, and her.husband, John S. Jarel.

<p>Mortgages—AssrGNsrENT—Etotíct—Estoppel.</p> <p>The plaintiff gave his brother a mortgage to secure a loan. This brother informed him that ho wished to assign the mortgage to a creditor whom ho owed: to this plaintiff made no objection. Held, that the plaintiff is estopped from denying that the mortgage was held to secure his brother’s debts to the creditor.1</p>

At Law. Action for damages. Plaintiff, Frankle, sued defendant, Jackson, receiver of the Denver & Rio Grande Railroad Company, for damages to her property caused by laying of tracks on the street in front of her property, and the use of them. Trial to the court, and judgment for plaintiff for $800.

At Law. On-demurrer to complaint, and motion for judgment. The plaintiff, Lindquest, brings this action against the Union Pacific Railway Company, defendant, for damages caused by the occupation of the street by defendant in front of plaintiff’s residence.

<p>At Law. On motion in arrest of judgment.</p> <p>This action was brought by the National Home for Disabled Volunteer Soldiers against Benjamin F. Butler. The defendant moved in arrest of judgment.</p>

In Equity. On exceptions to master’s report. A claim was tiled by E. L. Dehoney against the receivers of the Texas & Pacific Railway Company for damages caused by the burning of his meadow by fire ignited by a locomotive of the railway in passing. The claim was for $2 an acre damage to the meadow, and |40 for 4 acres of millet destroyed. The master allowed the claimant the $40 damage to the millet, but nothing for general damages. The claimant excepted to the master’s report.

<p>On Writ of Habeas Corpus. Application to lax costs.</p>

<p>Two Indictments against defendant, Edgar I. Douglass, postmaster, for illegal use of postage stamps.</p>

In Equity. On bill for injunction. Bills by William S. Gottsberger to restrain the Aldine Book Publishing Company and Dana Estes et al. from printing and publishing a work, upon which complainant alleged to have a copyright.

In Admiralty. On exceptions to libel. The libel averred that on December 7, 1886, libelant shipped on hoard the Pulaski, at the port of Detroit, about 24,000 bushels of wheat, to be held and stored on board said schooner until the opening of navigation in the following spring, unless sooner discharged by the shippers; and, if not discharged, to transport the wheat to Buffalo, or other port, for the consideration of two and a quarter cents per bushel for proper storage during…

<p>Removal of Causes—Ohtzenship— Act of Maroii 3, 1887.</p> <p>Act of congress, March 3, 1887, after providing i'or the jurisdiction of federal courts, reads: “No civil suit shall be brought before either of said courts against any person, by any original process of [or) proceeding, in any other district than that whereof he is an inhabitant; but. where the jurisdiction is founded only on the fact that the action is between chizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or defendant.” Jlekt that, when the jurisdiction depends upon grounds other than the citizenship of the parties, the defendant must be sued in the district of his domicile, but, when the jurisdiction depends upon citizenship, the suit may be brought in the district in which either plaintiff or defendant resides.</p>

Motion to Remand to State Court. The Fitldn County Mining Company, plaintiff, a Colorado corporation, sued Clinton Markell, a citizen of Minnesota, and Poster, a citizen of Wisconsin, in a state court of Colorado. Defendants removed the case to the United States circuit court, and plaintiff moved to remand

<p>1. Removatj of Causes—Motiost to Rkmaxd—What Consideked.</p> <p>On motion to remand to the state court, by plaintiff, defendant sought to have the ease retained, alleging that, the matter in dispute arose under the constitution, laws, or treaties of the United States. Held, that to give the court, jurisdiction it must clearly appear from the record that tho construction of some provisions of the constitution, laws, or treaties must be met and decided before the issues in the particular cause can be finally disposed of, and the court will not take jurisdiction because a party asserts it exists, but in determining that matter will consider all points of law and fact that inhere to that jurisdictional question.</p> <p>3. Same.</p> <p>A suit between a state and a railroad company arose out of the provisions of the statutes of a state, the ordinances of a city, and a contract alleged to exist with the railroad as to the use of certain side tracks in the city, including the power of the railroad commissioners of the state to fix the rate to be paid defendant for switching cars of other companies over the tracks in question. Held that, as all that could be said from the record was that if certain conditions of fact were made to appear in the evidence, a federal question might arise, the record failed to show jurisdiction in the United States court, and the cause must be remanded.</p> <p>3. Same—Jurisdiction'—Federal Question.</p> <p>A state filed a bill in a state court to enforce an order of the state board of railway commissioners, holdirig that certain tracks in the streets of a city are, under the laws of the state, ana the ordinances of the city, public highways, and not the private property of the defendant company, and that the defendant was under obligations to pass over such tracks the cars of other railway companies when necessary to reach their customers’ warehouses, and fixing charges for the switching done by the defendant. The city had given defendant permission to lay its tracks upon certain streets, upon condition that they should be public, and open to the use of the citizens. The case was removed to the federal courts, and plaintiff moved to remand. Held that, in imposing this condition, and fixing the rate to be charged, it does not clearly appear that the state is interfering with or regulating commerce between the states, in violation of the federal constitution.</p> <p>4 Carriers—Terminal Facilities—Act of Congress—State Laws.</p> <p>Act of congress, February, 4,1887, § 8, provided that common carriers should afford equal facilities for the interchange of traffic between their lines, “but this shall not be construed as requiring any such carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. ” The defendant had bound itself by a contract with a city to allow other roads to use its terminal facilities, and a state had provided by statute that different companies might have a joint use of such facilities. Held, that the contract with the city, and the rights of the second companies to such joint use, were not affected by the above act, but the same must be determined by the statutes of the state.</p>

In Equity. On exceptions to master’s report. This was a bill for partition by James Cochran and others, against Geo. K. Shoenberger and others. Defendants filed exceptions to the report of the master.

Motion to Set Aside Master’s Sale and Deed. Duncan McBride filed a bill in chancery, October 24, 1884, against George R. Gwynn, James Moynahan, and the Great West Mining Company, to foreclose a trust deed securing the payment of $3,000, loaned by McBride to the company. The trustee named in the deed was D. C. Crawford, who refused to make sale; hence this application to the court.

Application by Receiver for instructions. This is an application by David Armstrong, receiver of tito Fidelity National Bank, for instructions as to his action in regard to $2,000 received in payment of a certain note.

<p>1. Banks and Banking—Drafts for Collection—Application towards Account.</p> <p>Plaintiff sent to P. bank a draft indorsed “for collection,” accompanied with instructions to “collect and credit proceeds. ” P. bank sent the draft to the defendant, and the latter collected it, received the proceeds, and credited them to the P. bank, in accordance with the usual course of business between the P. bank and the defendant, and notified the P. bank of the credit. Tho P. bank suspended business before crediting plaintiff with the proceeds, but after they had been collected and after it had received notice of the credit. After the suspension of the If. hank, the receiver appointed over its affairs credited plaintiff with the proceeds of tho draft on the books of the bank. Held, that the indorsement “for collection” was notice to the defendanl of the qualified title of the F. bank, and defendant could not acquire any better title 1.0 the draft or tho proceeds than that of the F. bank, and could not, as against the plaintiff, apply the proceeds to an account owing the defendant from the F. bank; and that the defendant could only defeat an action brought to recover the proceeds in its hands by showing that tho draft or its proceeds belonged to the F. bank.</p> <p>8. Same.</p> <p>Held, further, that the relation of principal and agent continued between the plaintiff and the F. hank so long as the latter did not assume the relation of primary debtor to the plaintiff for the proceeds of the draft; that the plaintiff not having been credited with the proceeds hy the F. bank, the relation between them remained that of principal and age 4. and not debtor and creditor: and that the F. bank, not having credited the plaintiff with the proceeds while if was a going concern, could not, by doing so subsequently, change . tho existing relation.</p> <p>8. Same.</p> <p>Held, in an action brought by the plaintiff against the defendant to recover the proceeds of the draft, the defendant not having remitted the proceeds to the F. bank was liable to the plaintiff for the amount.</p>

Intervening Petition. On submission. This is an action by Ferdinand Jacobs, plaintiff, against Tutt & Humphreys, receivers of the Wabash Kail road, defendants, to recover the value of a trunk and contents, alleged to have been stolen wliilo in defendants’ hands.

<p>1. Eminent Domain—Compensation—Damage to Part not Taken— Adatta- • BII.ITY for Future Use.</p> <p>In an action for damages to land, caused by the construction of a railroad, the plain tiff Is entitled to recover the then fair market value of the part taken, and the amount of the damage to the residue by such taking, to be estimated by considering the value of the land for the purposes for which it was used when taken, or its reasonable adaptability to particular uses, having reference to the existing wants or business of the community, or such as might then have been reasonably expected in the near future.</p> <p>2. Same—Compensation—Hotel Property—Drives—Annoyance..</p> <p>In an action for damages by the construction of a railroad across a tract of land, the plaintiff cannot recover for injury to drives about the premises, the annoyance or danger of fire from passing trains, loss of patronage to a hotel on such land, the cost of a retaining wall along the track, or for improper or negligent construction of the road.</p> <p>3 Same—Compensation—Hotel Property—Diminution of Business.</p> <p>In an action for damages resulting from the construction of a railroad across plaintiff’s hotel property, evidence that the construction of the road will diminish the business of the hotel is admissible only to aid the jury in determining the weight of direct testimony of depreciated value.</p> <p>4 Same—Railroad—Compensation—Benefit Conferred as Abatement.</p> <p>In an action for damages to land in Wisconsin, resulting from the construction of a railroad, the fact that the road is a trunk line to Chicago is not such a benefit to plaintiff as will be considered in abatement of the damages suffered by him.</p> <p>5. Evidence—Expert Testimony—Province of Jury.</p> <p>In determining the weight to be sdven to the opinions of experts concerning values and damages, the jury may apply their own general knowledge and ideas to the matters of fact in evidence. 1</p> <p>6. Same.</p> <p>In determining questions of value and damage, it is proper for the jury to consider the evidence of actual sales of other lands at or about the time of the taking by the railroad company of the plaintiff’s land, provided such lands were of the same general character, similar in situation,, and located in the immediate vicinity of those of the plaintiff.</p> <p>7. Same—Value of Land—View by Jury.</p> <p>The knowledge which a jury has acquired by a view of the premises may be used by them in determining the weight of conflicting testimony respecting value and damage, but no further.</p>

At Law. Action of ejectment by Mary Ramsey and others against Alexander Hanlon and John Hanlon, to recover certain real estate which had boon taken in execution and sold on a judgment against the ’personal representative without joining the heirs or devisees.

On Exceptions to the Evidence. Action by John K. Finnell against the Southern Kansas Railway Company for personal injuries sustained. The defendant offered in evidence the Kansas statute of limitations. The plaintiff objected thereto. Plaintiff sued the defendant for personal injuries sustained in the state of Kansas, May 16, 1884, by falling off of the platform connected with one of defendant’s station-houses on the line of its road.

At Law. Action for personal injuries. This was an action brought by W. H. Nonce against the Richmond & Danville Railroad Company to recover compensation for personal injuries sustained while performing his duties as an employe of the defendant. Judgment for plaintiff. Defendant moved for a new trial.

<p>In Equity. Bill for injunction.</p> <p>Suit for infringement of trade-mark by Leonide Lacroix against Joseph Lyons.</p>

<p>1. Railroad Companies — Lease of Road — Consent of Stockholders — Waiver.</p> <p>A railway company leased its road, and 19 years afterwards brought suit to set aside the lease because it was made without the stockholders’ written consent, as required by law. Held, that the requirement of consent was a personal benefit which the stockholders waived by long acquiescence.</p> <p>3. Contracts—Validity—Ratification.</p> <p>The plaintiff and defendant entered into a contract of doubtful validity. By subsequent enactment it became lawful to make such contracts. Held, that recognition by the parties for 19 years thereafter was a ratification of the contract.</p> <p>3. Equity—Laches—Annulment of Lease.</p> <p>The plaintiff leased its road, and 19 years afterwards brought suit to declare the lease void. Held, that the plaintiff was guilty of such laches as will bar relief in equity.</p> <p>4. Same—Pleading—Multifariousness.</p> <p>A bill in equity praying that a lease be declared void, and for an accounting of the money due by the terms of the lease, should it be declared valid, is multifarious.</p>

<p>.Action to Recover Personal Property,</p>

Motion to Dismiss, and suppress service by publication. In December, 1886, this bill was filed for the foreclosure of a mortgage, in which the mortgagor and subsequent incumbrancers were impleaded as defendants. Subpoena was issued, and return served upon the subsequent incumbrancers, but not upon the mortgagor.

<p>At Law. Action to recover back customs duties.</p> <p>Action by Adolph Liebenroth et al. against William H. Robertson, collector of revenues, to recover an alleged excess of duties paid in 1885 and 1886 on photographic albums.</p>

Indictment against defendant, William H. Barnhart, under Bev. St. U. S. § 5418, for the forgery of certain affidavits, with intent to defraud! the government.

Indictment. On demurrer. Indictment against defendant, Joseph Hoeflingcr, for sending letters through the mails with intent to defraud.

Indictment under Rev. St. U. S. § 5209. On charge to the jury.

In Equity. On bill for injunction. Plaintiff, Silas Farmer, was the author, publisher, and sole proprietor of an elaborate and exhaustive book of 1,024 pages, entitled “A History of Detroit and Michigan, or, the Metropolis Illustrated: A Chronological Cyclopedia of the Past and Present, including a Full Record of the Territorial Days in Michigan, and the Annals of Wayne County.” This book was published and copyrighted in 1884, and sold at $10 per copy.

<p>1. Patents for Inventions—Invention—Railway Switches.</p> <p>Letters patent No. 117,198, granted to Thomas Newman July 18,1871, for an improvement in switches for horse railroads, are for a new and ingenious assembling of known appliances, and are not void because the separate elements of the combination were old.</p> <p>2. Same—Infringement—Railway Switches.</p> <p>The device covered by letters patent No. 117,198, manufactured by complainant, called a pivoted horse-railroad switch, shifted horizontally by the tread of the animals upon an oscillating platform, is infringed by the device of defendant’s, combining all the essential features of complainant’s, with some slight changes.</p>

In Equity. On bill for injunction. This is an action brought by Charles G. Hutchinson and others, plaintiffs, against Edward IT. Everett, defendant, to restrain an alleged infringement by defendant of plaintiffs’ letters patent on a bottle-stopper.

<p>Action for tho infringement of letters patent No. 234,413, brought by Alfred Roosevelt, as executor of Hilborno L. Roosevelt, assignee of Georges Lionel Ledanché.</p>

<p>In Admiralty. Libel for damages.</p>

In Admiralty. Libel for damages. This is an action against the owners of the steam-ship Rover, to recover for the damages to a cargo of bananas on a voyage from Puerto Cortez, Honduras, to Charleston, South Carolina, in December, 1885. The steamer sailed on the seventh December. On the 10th, while in the Florida straits, in a severe gale, the crank-shaft broke.

In Admiralty. Libel for damages. Libel by Joseph Quinn against the steamer Yoxford, to recover damages for injuries sustained by reason of the giving way of a defective hatch-cover, precipitating libelant into the hold of the vessel.

<p>1. Collision—Right op Way—Risk op Collision—Duty to Yield.-</p> <p>In the presence of danger of immediate collision there is no absolute right of way, and both of two approaching vessels are bound to give way and depart from the usual rule, if such departure will plainly avoid collision.</p> <p>2. Same—“Crossing” and “Overtaking”—International Rules—“Harbors” —“Coast Waters.”</p> <p>Two yachts, the C. and the N., were standing up the lower bay of New York, both close-hauled on the port tack, and heading for about the same point. The C. was to windward of the N., and was heading a little more off the wind, and making more leeway than the latter. Owing to the drift of the C., their courses crossed more than their headings indicated, and each, supposing the other to be an overtaking vessel, held her own course until collision ensued. Held, that the C., being the windward vessel, under old rule 17, or rule 24 of the International Regulations, and the practice of seamen, should have kept out of the way. Held, also, that the case was one of crossing, rather than of overtaking, vessels, and that both vessels were in fault for persisting in their courses in the face of danger of collision, and the damages should therefore be divided. Semble the lower bay below the Narrows is part of the “coast waters” rather than of the “harbor” of New York, and is subject to the new rules of March, 80, 1885.</p>

In Admiralty. Libel for damages. 'Two suits to recover damages sustained in consequence of a collision, brought-by Moses G. Wright et al. against the steam-ship Alaska, and by the Brooklyn- & New York Ferry Company against the steam-boat Morrisania. The first .pause was brought in the Southern, and the second cause in the Eastern, district of New York.

Application to Docket Case. The plaintiff, Mary Harold, brought suit in the district court of Colorado for Lake county against the Iron Silver Mining Company for damages. Defendant made application to said court to remove the cause to the United States circuit court, which was denied. Defendant then applied to the United States circuit court for leave to docket said cause.

<p>In Equity. Bill for specific performance by complainant J. L. Johnston against B. B. Trippe, defendant. On demurrer.</p>

In Equity. Bill for injunction. Suit by James W. Carpenter against James It. Talbot, Boyce, and Bottum, to enjoin them from foreclosing two chattel mortgages. Under Bev. Laws Vt. § 1977, “the mortgagee” of personal property “may, after * * * condition broken, cause the mortgaged property * * * to bo sold at public auction by a public officer. * * *” Under .Bev.

<p>Insolvency—Preferences—Limitation of Time.</p> <p>Rev. Laws Yt. § 1860, provides that a conveyance made by an insolvent, or one in contemplation of insolvency, within four months before the filing of a petition for insolvency by or against him, made for the purpose of giving preference to certain creditors, shall be void. In an action to set aside such a mortgage, it appeared that, within three months after the mortgage was made, a petition was left with the judge to be acted upon when requested, and was not acted upon until two months later, at the instance of another creditor. Held, that the statute contemplated immediate procedure upon the petition, and the delay in acting on the petition at the instance of the petitioner took the conveyance out of the operation of the statute.</p>

<p>Banks and Banking—Special Deposit—"When Title Passes.</p> <p>An insolvent was cashier Of a bank, to which he was largely indebted, and put certain of his own securities in a package, and placed it with similar bundles left with the bank as special deposits for safe-keeping. It was insolvent’s intention in this manner to pay certain drafts securing his indebtedness to the bank, and these drafts were entered on the books as paid, and the item of bonds of the bank was increased to the extent of the value of these securities. The securities were not indorsed by insolvent, and the other officers of the bank had no knowledge of the transactions. Held, that no property in the securities was transferred to the bank.</p>

<p>1. Insurance—Representations—'Warranty.</p> <p>An express warranty by one insured as to the circumstances of the insured property, binds him whether he be mistaken in fact or willfully misrepresents, while representations not amounting to a warranty will protect insurers only if willfully erroneous, or grossly negligent, in character.1</p> <p>2. Same—Loss—Proof.</p> <p>Where a party shows the manner of keeping his account of stock and making his inventories, and he shows the amount of stock as appeared by these accounts, and testifies that he believes it to be correct, it is evidence on which the jury, if they believe him, may find the amount of such stock which has been destroyed by fire.</p> <p>3. Same—Loss—Notice.</p> <p>A stipulation in an insurance policy to give notice of loss, if any occurred, “forthwith, ” is satisfied by an immediate notice to a local agent, who transfers it in a short time to a general agent.</p> <p>4. Same—Loss—Waiver of Proof.</p> <p>Questions as to the sufficiency of proof of loss by fire of insured property, were waived by the examination of the premises by the company’s authorized agent, who investigated the loss, and refused to pay it.</p> <p>5. Same—Loss—Estimation of.</p> <p>Market value, and not local or peculiar value, of property destroyed by fire, and which can be procured in the market, must control in estimating the loss.</p> <p>6. Witness—Impeaohment^Obtaining Goods under False Pretenses.</p> <p>Proof of a conviction for obtaining goods under false pretenses tends to impeach the veracity of a witness.</p>

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

<p>In Admiralty.</p> <p>Libel brought by W. S. B. Hays against the Pittsburgh, Geneva & Brownsville Packet Company.</p>

In Admiralty. Libel for damages by collision. Libel by Ivanhoe 0. Bryant against the Excelsior, to recover damages sustained by reason of a collision of libelant’s schooner with the steam'ship Excelsior, alleged to have been occasioned by the negligent navigation of the latter.

<p>Demurrage—Duty of Consignee to Provide Wharf—Notice.</p> <p>When tbe duty of providing a wharf, at wbicb to unload, is upon tbe consignee, be is entitled to reasonable notice of tbe time when tbe vessel will be ready to unload, and, in tbe absence of sucb notice, demurrage will be allowed only after tbe lapse of a reasonable time after notice was actually given.</p>

<p>In Admiralty. Libel by Charles Peter ter Reehorst to recover damages for personal injuries received as a seaman on board the Harry Buschman.</p>

<p>Courts—Depositaries—Rath of Interest.</p> <p>Asíate depositary for court moneys, whoso charter provides for a payment by it of not less than 8 per cent, per'annum upon court money held in its trust capacity, has no power to make an agreement, with parties to a suit for the payment of a different rate of interest. Such power to vary the rate is vested in'the court, and when the order directing the deposit is silent as to the rate if interest, the charter rate will apply.</p>

<p>1. Mines and Mining—Location of—Rights Under.</p> <p>Tbe locator of mining ground under U. S. Rev. St., prior to tbe actual payment of tbe purchase money, and the reception by him of the receipt therefor, issued by the register and receiver of the proper land-office, possesses a mere privilege to purchase the property, and a constable’s sale of the mine before payment, only passes that privilege. If the sale is valid, the purchaser can only step into the shoes of the execution debtor, and thereby obtain a right to go on, perform the necessary acts, pay the purchase money, contest the rights of other adverse claimants, and make the entry and receive the certificate of purchase himself. If the judgment debtor subsequently performs these acts himself, and receives the title from the government, a new and further title becomes vested in the judgment debtor, which does not pass by virtue of the officer’s deed.</p> <p>2. Public Lands—Title to—Payment—Receipt.</p> <p>A party having paid the purchase money, and received the certificate of purchase, is the owner of the land. . The United States has ceased to have any • pecuniary interest in it. It holds the naked, dry, legal title for the holder of the certificate.</p> <p>8. Same.</p> <p>Such a certificate of purchase cannot be collaterally assailed.</p> <p>4. Limitation of Actions—Mining Claim—Adverse Possession.</p> <p>Possession of a mining’ claim, in order to vest a title under the statute of limitations, must be open, notorious, exclusive, and continuous, and not a loose, uncertain, scrambling, and mixed possession.</p> <p>5. Mines and Mining—Adverse Claims—Publication of Notice.</p> <p>Under an application for a patent for mining ground, under sections 3335, 2328, Rev. St., unless adverse claims are filed with the register and receiver of the proper land-office within 60 days after the first publication of the notice, such adverse claims are waived, anil the applicant- is entitled to a patent upon the payment to the proper officer of the statutory fees and costs, and it shall thereafter he assumed that, no adverse claim exists; and thereafter no objection from third parties to the issue of the patent shall he heard, except that it be shown that the applicant has failed to comply with the terms of the statute.</p> <p>6. Same.</p> <p>The interest or title obtained by a purchaser at a constable’s sale prior to the expiration of the publication'of the notice is an adverse claim which, unless filed as the statute provides, is waived.</p> <p>7. Same.</p> <p>The statute makes such a proceeding, regularly prosecuted,.when the period of notice is completed without the presentation of an adverse claim, absolutely conclusive against adverse claims. The proceeding is in the nature of a proceeding in rem, and is binding upon all the world, so far as any unpresented adverse claims are concerned.</p> <p>8. Judicial Sale—Title of Purchaser.</p> <p>The purchaser at a judicial sale acquires only the present interest of the judgment debtor. No after-acquired title is affected by such a salo. The sheriff’s deed can, at most? only have the operation of a quitclaim deed in the strictest sense.</p> <p>9. Equity—Master— Objections Before.</p> <p>The general objection “irrelevant and incompetent, ” made before the master in an equity case, is not sufficiently specific to be entitled to consideration upon the hearing.</p> <p>10. Same—Practice—Objection to Testimony—Amendment of Pleadings.</p> <p>Where an objection to the relevancy or competency of the testimonyis made specific for the first time in the closing argument for the complainant in an equity case, the court will permit the defendant to so amend his pleadings as to obviate the objection, where the testimony is before the court showing a proper case therefor.</p> <p> {Syllabus by the Court.) </p>

In Equity. On demurrer. This was a suit by Levi Catlin against Yates Douglass, the Chicago Lumber Company, and the Merrimac River Savings Bank, to foreclose a mortgage on certain real estate owned by the defendant Douglass. The petition alleged that the Chicago Lumber Company and the Merrimac River Savings Bank had some liens upon, or claims to, the mortgaged property, and required them to sot out the same.

<p>Pleading—Amendment—Conditions.</p> <p>When it does not appear that plaintiff's situation has changed for the worse in consequence of defendant's delay in interposing a particular defense,—unless in proceeding to make proof of his case, which he might not have done had the defense been interposed originally,—a motion to amend the answer will be granted, but on payment of taxable costs to the time of the amendment.</p>

Action by the United States upon the official bond of Adam Bad can, consul. This is an action upon an official bond, to recover of the defendant $10,572.64, balance alleged to be due the government on the accounts of the defendant as consul general at London, from July, 1870, to September, 1881.

At Law. Action to recover back customs duties. During 1858, and for some time prior thereto, Armand Lachaise, Victor Fauche, Marius A. Sorchan, and Julien L. Allien, constituted the firm of Lachaise, Fauche & Co., and in such firm name imported on February 10,1858, by the ship Admiral, from France into the port of New York, certain “mousseline delaines” composed wholly of worsted, or worsted with a satin stripe.

<p>Patents for Inventions—License—Action for Infringement—Equity Jurisdiction.</p> <p>A licensee, claiming damages for past infringement of a patent,^ sued in equity in the name of the patentee. Held, that the court had no jurisdiction, as the remedy was at law.</p>

In Equity. On hill for injunction. Plaintiffs, Jules Glaenzer and another, filed their bill against Peter Wiederer and another, to enjoin defendants from infringing letters patent No. 182,638, dated September 26, 1876, issued to P. L. Broi, assignee of L. T. Berton, for a compound folding mirror, which plaintiffs now claim to own. The hearing is on a motion for a preliminary injunction.

<p>In Equity. Bill for injunction.</p> <p>William H. Kennedy and others, filed their bill to restrain John McTammany, Jr., from violating a copyright.</p>

In Admiralty. The plaintiff's, Charles E. Garner and E. N. Holt, filed a libel against the steam-boat Captain Miller, at the Jacksonville December term, 1887, claiming damages for a collision with the steam-boat Manatee. W. H. McIntire, master of the Captain Miller, for himself and owners, filed, at the same term, an answer and a cross-libel against the Manatee, for damages for the same collision.

<p>In Admiralty. Ou motion to dismiss appeal,</p>

In Admiralty. Libel for damages. The Sunset Telephone & Telegraph Company filed a libel against the ships Carl Frederick and Enoch Talbot, alleging that by carelessness and mismanagement they had dragged their anchors against the submarine cable of the libelant, and had broken it.

<p>Admiralty—Stipulation—Surety Depending Liadle por Interest.</p> <p>One wlio signs a stipulation for the value of a vessel libeled, and thereafter defends the suit, is liable for interest on the face of such stipulation from the time it was filed, though he acted simply as agent for an absent owner.</p>

The state of Maryland, by an act of her general assembly, passed at the January session, 1884, c. 518, provided that no person should employ any vessel to carry, buy, or sell oysters on the waters of the Chesapeake hay and its tributaries, without first having obtained a license so to do from the state; and also that no one should obtain such license unless be had been a citizen and resident of the state for 12 months immediately preceding the application for license, and…

<p>1. SrisoiFrc Performance—Statute of Frauds—Proof of Contract.</p> <p>A contract for the conveyance of land, although in compromise of pending litigation, will not be specifically enforced unless proved by the writing itself. where there has been no such part performance as to take the case out of the statute of frauds.1</p> <p>2. S ame —Memorandum—Telegram.</p> <p>A telegram from a bank to its attorneys, “Our board have agreed to accept the proposition of L. B. Duff, assignee of Carrier & Baum, ” does not connect itself with an informal and unsigned memorandum which requires parol testimony, not merely for its identification, but also to show that it was an offer from the assignee.1</p> <p>8. Same—Memorandum—Incomplete Writing.</p> <p>A writing which is the mere basis for and preliminary to a contract which is to be put into definite shape, and executed if the terms are approved by a bankrupt court, is not a completed agreement, enforceable specifically.2</p> <p>4. Compromise—Order of Court—Effect.</p> <p>An order of a bankrupt court, made upon the ex parte application of the assignee, approving the terms of an agreement of compromise, and authorizing the assignee to consummate the same, has no binding effect upon the other parly to the proposed compromise.</p> <p>5. Specific Performance—When Enforced—Mutuality.</p> <p>Specific execution will not toe decreed in favor of the plaintiff where the contract is not in like manner enforceable against bim, nor binding upon bim.1</p> <p>6. Vendor and Vendee—Breach of Contract—Injunction.</p> <p>If tbe plaintiff's case, upon a contract to convey land, is not one for specific performance, a court of equity will not grant an injunction to restrain a breach or disaffirmance of the contract, nor make a decree declaring it to be obligatory upon the defendant.</p>

<p>At Law. Action for personal injuries.</p>

<p>Counties—Issuance of Bonds—Validity—Recitals.</p> <p>The recitals in a bond, issued under Acts Colo. 1881, authorizing counties to fund their debts, which show full compliance with the act, but not the amount of the issue, will estop the county from alleging, against a dona fide holder, that the bond was issued in violation of the constitutional limitation.</p>

<p>Customs Duties—Classification—Wool Oovebings fob the Head.</p> <p>Articles made of wool, knit on frames, imported from Scotland, and used for a covering for the head, are properly assessed for duty under tariff act par. 363, which reads: “Flannels, blankets, hats of wool, knit goods, and all _goods made on knitting frames,” etc., and not under paragraph 400, which provides for duty on “bonnets, hats, and hoods for men, women, and children, composed of chip, grass, palm leaf,” etc., as tlio word “bonnet” in the statute is not sufficiently broad, nor such peculiar, technical trade-meaning coupled with it as to cover these goods.</p>

<p>Erections—Offenses against—Attestation of Poer-Books by Greek.</p> <p>finder a proper construction oí the laws of Missouri defining the duties of clerks of election in the city of St. Louis, such officers are not required to certify as to the result of ah election. The duty of certifying- as to the result of an election is imposed on the judges of election, while clerks of election are merely required' “to attest” or authenticate the signatures of the judges to the certificate. Vide, Sess. Laws Mo. 1883, pp. 44, 45, §§ 19, 20, 24; Rev. St. Mo. 1879, 5495, 5498. An indictment having- boon drawn against a clerk of election under that clause of section 5515, Rev. St. U. S., which declares it to be an offense “to make a false certificate as to the result” of a congressional election, held, that such indictment was bad on demurrer, inasmuch as it was not a clerk’s duty to certify as to the result of the election. Held, further, that the clerk, by attesting the poll-hook, did not certify as to the correctness of the count of the votes, but merely authenticated the signatures of the judges, whose duty it was to count the votes and certify as to the result.</p>

<p>Indictment—Judges oe Election—Joinder oe Parties.</p> <p>In Missouri, judges of election and clerks of election have several and not joint duties: and where they are jointly indicted for neglect of duty the indictment will be held had. Persons who, as officers of an election, have different duties to perform, cannot be jointly indicted for neglect of their several duties. To authorize a joint indictment, the duty imposed on the defendants must he a joint duty.</p>

<p>1. Collision—Aiwboaching Vessels-—Pobt Tack—Stabboabd Tack.</p> <p>Where two vessels are approaching each other, the one being close-hauled on the port tack, and the other close-hauled on the starboard tack, it is the duty of the former to keep clear away, and a failure so to do renders her liable should a collision result.</p> <p>3. Same—Vkssel Close-Hauled—Definition.</p> <p>A. vessel hove to, and making both headway and leeway, is a vessel close-hauled, within the meaning of the rules of navigation.</p>

<p>Action by a cliief supervisot for fees and expenses incurred in performing the duties of that oflice.</p>

<p>Equity—Parties Defendant—Demurrer—Unity of Interest.</p> <p>A bill in equity showing- that complainant owned a mine, the mineral vein of which had its apex within complainant’s boundaries, but in descending deflected and passed out of his side lines; that defendants, of whom there were a number, were threatening litigation on claims to the vein in various forms; that defendants’ claims, though differing between themselves, were all subordinate to plaintiff’s claim; and seeking equitable relief,—is not demurrable as showing no unity of interest in defendants, and no equity in complainant.</p>

In Equity. On demurrer to hill to set aside conveyance. Action by Jones, assignee, against Slauson and others, defendants, to set aside several conveyances of real estate alleged to have been made in fraud of creditors.

<p>The New England Mortgage Security Company, plaintiff', sued Jacob M. Gay, defendant, on promissory notes to the amount of $8,000.</p>

<p>Customs Duties—Imitation Seal-Skin.</p> <p>Imitation seal-skin cloakings made of silk, or of which, silk is the component material of chief value, are dutiable under Actl883, § 383, as articles composed wholly or in part of silk', and not under Bev. St. U. S. § 2499, as articles not enumerated bearing similitude to one enumerated for duty.</p>

In Equity. On bill for injunction. These suits were brought by William Wright against David G. Yuengling, Jr., and Johnston Beggs, to restrain the infringement of letters patent granted to complainant for an improvement in engine-frames.

<p>1. Courts—Federal Jurisdiction-Crimes.</p> <p>Const. U. S. art. 8, § 2, al. 8. forbids the finding of an indictment in one state of the Union for » crime committed in another stale, and where there can be no indictment there can be no original complaint.</p> <p>2. Aun;.</p> <p>The jurisdiction of United States courts in respect to crimes committed in. other states is ancillary in character, and cannot be exercised unless it is shown that accused is a “fugitive from justice, ” and has been “demanded” by the proper authorities of the state where the crime was committed.</p> <p>8. Same—Comity.</p> <p>The comity of courts, however,'modifies the rule just staled in cases of undoubted flight from justice and evasion of process.</p>

In Equity. Motion to dissolve preliminary injunction. The Grand Rapids Electric Light & Power Company filed a bill to' perpetually enjoin the Grand Rapids Edison Electric Light & Fuel Gas Company and others from erecting poles and wires in the streets of Grand Rapids, and obtained a temporary injunction.

At Law. Motion for a new trial in an action upon a lease for rent.

On Petition for Writ of Habeas Corpus. The state of Maryland, by its act of 1884, c. 518, prohibited any per•son from using a vessel for carrying, buying, or selling oysters over the navigable waters of the Chesapeake bay without first having obtained a license so to do, and further prohibited any person from obtaining such license unless he had been a resident and citizen of the state for 12 consecutive months preceding his application for such license, and also until he…

<p>1. Seamen—Employment of Deckhands—Round Tiup—Discontinuance.</p> <p>Some roustabouts shipped for the round trip from Cairo to New Orleans and hack. When the boat arrived at New Orleans, the voyage was broken up by 1 ho direction of the owner, on account of ice in the river above Cairo. The river was free below Cairo, and there was no reason, beyond the will of the owner, why the voyage was not completed. Held, that on their discharge, under these circumstances, the libelants were entitled to be paid their wages for the voyage or round trip, and for their necessary expenses in returning home.</p> <p>2. Swie — Employment of Deckhands — Round Trip — Discontinuance —</p> <p>Waiver of Claim for Wages.</p> <p>The owner paid the wages of the roustabouts to date of discharge, and tendered each a ticket back to Cairo, or cash in lieu thereof. Held, that the acceptance on the part of libelants of wages up to date of discharge, and of tickets, or money in lieu of passage, did not bar them from claiming the balance of wages or passage money which was their due.</p> <p>8. Admiralty—Practice—Pleading and Proof—Amendment.</p> <p>In a suit in admiralty, the case presented was one in which the proof and the allegations did not correspond. Damages on one cause of action were alleged, and the right to damages on another was proved. Held, that in admiralty proceedings parties were permitted to introduce new allegations and new proof, and that to do justice on the case, the libelants must amend.</p>

In Admiralty. Libel in admiralty brought to recover, by subrogation, for a general average loss claimed to have been sustained by the jettison of a deck-load of barrels of oil, loaded on board schooner John H. Perry. The evidence showed that the schooner loaded at Tiverton an under-deck cargo of fish-scrap belonging to defendant, and insured by the Insurance Company of North America, and gave a bill of lading for its dolivery in Weymouth, Massachusetts.

<p>In Admiralty. Libel for damages.</p>

<p>Courts—Federal Jurisdiction—Supplemental Bill.</p> <p>While the federal courts have jurisdiction of actions between citizens of the same state when federal questions are involved, and may, in such actions, determine issues otherwise triable by the state courts, their jurisdiction cannot be extended to other questions and issues raised by supplemental bill filed after the determination of the original cause.</p>

In Equity. Upon demurrer to the bill. Complainants filed a bill in the United States circuit court for the Eastern division of the Eastern judicial district of Missouri, the purpose of which was to have a judgment by confession entered in the circuit court of the state decreed to be a voluntary assignment for the benefit of all the creditors of the judgment debtor, and asking to have the moneys which had been collected by execution under such judgment distributed pro rata…

<p>Removal of Causes—Separable Controversy.</p> <p>In an action to set aside a general assignment, each of the plaintiffs being a separate judgment creditor of the assignors, where no issue is raised as to the judgments, and the only facts controverted being those tending to impeach the bonafides or validity of the assignment, and the preferences created by it, and the only issue being whether or not the assignment was fraudulent, no such separable controversy is presented as to authorize a removal of the action on the ground of the diversity of citizenship, some of the plaintiffs being residents of the same state as the defendant.</p>

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

In Equity. Intervening petition. J. S. Bradford, as intervenor, filed a claim against the receivers of the Texas & Pacific Railway Company, Cor damages for injuries sustained by Mm while a switchman in the employ of that railway. The master, while exonerating the receivers, allowed the claimant lii.s wages at $2..50 a day for the 64 days he was laid up from his injuries. The receivers excepted to the master’s report, on the ground that they were free from blame.

On Exceptions to Master’s Report. Petition of Carrington’s executor and W. W. Henry to enforce lien for attorney’s fees against the dividends on certain bonds formerly owned by their clients, which dividends were a fund in court. The suit in which the services were rendered was one in which Mahone, a bondholder, was plaintiff, and the Southern Telegraph Company, defendant; the petition alleging that defendant was insolvent, and seeking to wind it up. .

<p>Vendor and Vendee—Mortgaged Property—Payment of Mortgage.</p> <p>Where vendees buy a piece of mortgaged property for a certain sum, but with no understanding or agreement that they are to pay the mortgage as a part of the consideration, they are not liable to their vendor, the mortgagor, who has been compelled to pay the mortgage debt.</p>

<p>Pledge—Agreement fob Collection—Eeeect.</p> <p>Defendant executed notes to a trust company, and delivered bonds and choses in action as collateral security. The company signed an agreement regarding the securities, which provided that the proceeds arising from the sale of the securities and recovered from the choses in action should be applied to pay off the notes, subject to the repayment of moneys expended by the company in prosecuting claims or selling securities, lleld that, under this agreement, the company was not bound to sell the bonds in the absence of any request to sell, nor to commence suits; nor was it bound to prosecute suits at its own charge and risk.</p>

Action to Recover Back Customs Duties. This was an action by Aaron S. Robbins and others to recover excess of duties paid on articles made of cut steel, of steel and brass, and of mother of pearl. They were of an ornamental character, were used to decórale belts, dresses, cloaks, hats, or bonnets, and were, in some instances, intended to be used as ornaments for the hair.

<p>1. Patents for Inventions—Infringement—Gas Apparatus.</p> <p>The essentia] parts (so far as here involved) of the device iu letters patent No. 247, 925, for an “apparatus for enriching gas,” or heater, are a chamber provided with a series of corrugations, and a disk or partition for causing a circulation of gas through the chamber, dividing it into currents, the only-means, as was supposed, of thoroughly heating the gas, and feeding the hydro-carbon sufficiently. Held, not infringed by a device for heating, where the gas is confined in the pipe, in its ordinary form, and is heated" by surrounding this pipe with a loose-fitting tube, or cover, into which heat from the illuminating burner is collected, and thus thrown upon the pipe; the column of gas not being divided into currents, and not heated throughout, the fact that the heat is sufficient to fuse the hydro-carbon being unimportant, since the supposed necessity of heating the gas thoroughly, and the device for regulating the heat, are obviated by the device.</p> <p>2. Same—Construction of—Drawings.</p> <p>In this case, although the drawings filed show another form of heater, as well as the one for which letters patent issued, as there is no ambiguity, and nothing left for construction, the drawings of the patent should not be referred to in construing its claims.</p> <p>3. Same—Invention—Detaching Part of Device.</p> <p>A patent issued for a device to render detachable a part of a machine, by substituting a screw for the original fastening, will not be sustained.</p>

In Admiralty. Libel for excess of freight earned. January 7, 1884, A. Berryman, as the master and agent of the bark Maiden City, of St. John, New Brunswick, then at Newport News, Virginia, chartered that vessel to A. Gastover to take a cargo of cotton from Norfolk, Virginia, to Barcelona, thence to proceed in ballast to Trapani, Sicily, and there take on a cargo of 1,300 tons of salt and carry the same to Boston or Gloucester, Massachusetts.

<p>1. Collision—1Two Parallel Tows—1Turning—Delft.</p> <p>The two tow-boats B. and O. were making up parallel tows in the East river, the B. being 500 to 700 l'oet nearer the Brooklyn shore than the O. Both vessels were maintaining their positions against a strong ebb-tide. Tho B., having first completed her tow, attempted to turn to go out, of the river, and, in ■ so doing, struck and damaged libelant’s boat on the starboard side of the O. The latter, as the B. approached, didnot stopher engines and allow her tow to drift hack with the tide. Both boats wore libeled for the damage. Held, that the B. was solely in fault for the collision, as she took the responsibility of being able to effect her turn; and the libel against the O. was dismissed, without costs.</p> <p>2. Same—Error in Extbemts.</p> <p>An error of judgment in extremis is not a fault.</p>

On Motion to Remand to the State Courts. The attorney general of Illinois, having first obtained leave, filed, May 9, 1887, in the criminal court of Cook county, an information in the nature of a quo 'warranto, in the name and on behalf of the people of Illinois, against the Illinois Central Railroad Company.

<p>1. Public Lands—Military Sites—Sale—Act of March 3,1819—Delegation of Power.</p> <p>Under act Cong. March 3,1819, authorizing the secretary of war to cause to-he sold certain military sites, such sale could be made through an agent specially appointed for that purpose, and acting under a power of attorney.</p> <p>2. Same—Subdivision into Blocks and Lots.</p> <p>And if .in making a sale, under such act, of lands within the limits of, or near to, a municipal corporation, a subdivision of the tract into blocks, lots, and streets would he most beneficial to the government, it was the duty of the-secretary of war to adopt that method of selling the tract.</p> <p>3. Same—Dedication—Title to Streets.</p> <p>When Fort Dearborn reservation, near the mouth of Chicago river, was subdivided by the agent of the secretary of war, proceeding under the act of congress of March 3,1819, into lots, and they were sold with reference to the map or plat of such subdivision, and it was no longer used as a military site or for any purpose connected with the exercise of the powers of the general government, all the lands embraced within its limits ceased to he a part of the national domain. The title to the specific lots passed to those who purchased, them, while jurisdiction over the streets and open grounds dedicated to public use passed from the United States; the title to, and immediate possession and control of, such streets and grounds vesting in the local government— that is, in the municipal corporation of Chicago—as a public agency of the state for the purposes for which such dedication was made.</p> <p>4. Riparian Rights — Municipal Corporations — Powers — Delegation to Railroad.</p> <p>The city of Chicago, as riparian owner of ground on the shore of Lake Michigan, having, by the provisions of its charter, to maintain wharves and slips-at the end of streets, and to maintain a breakwater to protect the shore from the encroachment of the lake, could delegate the power to erect such breakwater to a railroad company as consideration for allowing tbe road to1 enter the city; and upon the erection of such breakwater, and the filling in of the space between the breakwater and the shore-line, the land thus reclaimed belongs to the city. Blodgett, J., dissenting.</p> <p>5. Same.</p> <p>In the absence of any legislative or governmental direction as to the manner of the occupancy of the bed of Lake Michigan within the state of Illinois, the Illinois Central Railroad Company, as tho riparian owner of the water-lots in the city of Chicago north of Randolph street, and south of Park row, had the right, by virtue of such ownership, and as part of its purchase of such lots, to connect the shore-line by artificial constructions with outside waters that were navigable in fact; although the exercise of that right is at all times subject to such regulations—at least, those not amounting to prohibition—as the state may establish.</p> <p>6. Same—Power of State over Riparian Owners.</p> <p>The state of Illinois has the power, by legislation, to prescribe the lines in the harbor of Chicago beyond which piers, docks, wharves, and other structures—other than those erected under the authority, express or implied, of the general government—may not he built by riparian owners in the waters of the harbor that are navigable in fact.</p> <p>7 Same—Railroad Companies—Charters and Franchises</p> <p>The charter of the Illinois Central Railroad Company granted it the right, to take and use all such lands and waters belonging to the state as were necessary to the construction and complete operation of the road, provided such use did not interrupt navigation of the waters. Held that, upon the consent from the city of Chicago to enter its limits, the company had the right to erect piers and breakwaters, and fill in the shallow waters of Lake Michigan within such city limits, and use the ground thus made for its road-bed and other purposes, provided such piers and breakwaters did not interrupt the navigation of the lake.</p> <p>8. Statutes—Enactment—Failure of Journal to Snow Compliance with Constitutional Provision.</p> <p>Under the provision of Const. Ill. 1818, art. 3, § 23, that all legislative acts must be read on three different days in each house, it is ■ not necessary to the validity of an act that the journal of either house should show affirmatively that such act was read three times.</p> <p>9. Same—Amendment of Title.</p> <p>"Where the original title of an act upon its introduction into the legislature contained superfluous words, and after its passage the title was changed to express truly the subject of the act, such superfluity in the original title will not affect the validity of the act.</p> <p>10. ('(INSTITUTIONAL IjAW—LOCAL AND SPECIAL LAWS.</p> <p>An act public in its nature, and in which the people of the whole state have an interest, but which specially concerns the property and rights of a portion of the people of the state, is a local act, within the meaning of Const. 111. ¡818, art. 3. § 23, relating to the title of private or local acts.</p> <p>11. Same—Titles op Laws.</p> <p>Act Ill. April 16, 1869,, entitled “An act in relation to a portion of the submerged lands and Lake Park grounds lying on and adjacent to the shore of Lake Michigan on the eastern frontage of the city of Chicago, ” contained provisions giving the city the foe to certain partially submerged lands, with authority to sell; also provisions giving the fee to certain other submerged lands to a railroad company, with the right to maintain docks and wharves. Held that, the general subject of the act being the disposal of lands on and adjacent to the shore of Lake Michigan on the eastern frontage of Chicago, the subject was sufficiently expressed in the title, within the moaning of (¡oust. 111. 1818, art. 3, § 23. providing that all local laws must contain but one subject, which must be expressed in the title.</p> <p>12. Bam is—Legislative Grants—Beal op State.</p> <p>The provisions of Const. 111. 1848, art. 4, § 25, that all grants shall be sealed with the great seal of the state, signed by the governor, and countersigned by the secretary of state, do not operate to render void a grant of lands by legislative enactment.</p> <p>13. Bami; — Corporations — Creation m Bpecial Law —Grant of Special Privilege to Existing Corporation.</p> <p>Const. Ill. 1870, art. 11, §§ 1, 3, provide that no corporation shall be created, or its power enlarged, by special laws, and that all the existing charters or grants of special or exclusive privileges under which organization shall not have taken place, or which shall not have been in operation within 10 days of the time the constitution took effect, should have no validity. Held, that the sections cited inferred only to corporations which were thenunorganiz.ed, or were not in operation as corporations, and should not be construed to take away any special or exclusive privileges granted to corporations organized and in actual operation.</p> <p>14. Bami;—Repealing Obligation to Pay Money into Treasury.</p> <p>Act Ill. April 16, 1869, granted to the defendant railroad certain submerged lands, upon condition that defendant, pay into the state treasury a per centum of the gross earnings of the road. Held, that act Ill. April 15,1873, repealing such grant, is not repugnant to the separate section of the constitution of Illinois providing that no contract, obligation or liability of defendant to pay money into the stale treasury, nor any lien of the state upon, or right to tax the property of, defendant, under the defendant’s charter of 1851, shall be released, suspended, diminished, or impaired.</p> <p>15. Same—Confirmation of Title—Prior Acts—Revocation.</p> <p>Act Ill. April 16, 1869, confirmed the right of defendant railroad company, under the grant in its charter, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident thereto, in and to certain lands. Held, that the confirmation, covering all that had been done by defendant in relation to such lands prior to the date of the act, was equivalent to an original authority so to do, and such confirmation could not he revoked by subsequent enactment.</p> <p>16. Public Lands—Grant by State—Construction of Grant.</p> <p>Act Ill. April 16, 1869, granted to the defendant certain submerged lands in the harbor of Chicago in fee, with a proviso that defendant should not have power to alienate such lands, and that the gross receipts from the use, profits, and lease of the lands, or improvements thereon should be a part of the gross receipts of the company for the purposes of taxation. It was also provided that the harbor should not be obstructed, or the right of navigation impaired, and that the legislature might regulate the rates of wharfage and dockage. Held, that the grant was in trust only, with the additional privilege to make certain improvements in the harbor, and was revocable, except as to such lands as, at the time of the repeal thereof, had already been improved and reclaimed, upon the faith of the grant.</p> <p>17. Same—Performance of Conditions—Tender—Failure to Keep Tender Good.</p> <p>Act Ill. April 16,1869, granted defendant certain lands in fee, upon payment of a certain sum to the city within the limits of which the land was situate. A tender of the money was made, but the city refused to receive it. Held, that a failure to keep the tender good deprived the defendants of all rights acquired thereunder.</p>

In Equity. On cross-bills. Bill by the Farmers’ Loan & Trust Company, trustee, complainant, against the Vicksburg & Meridian Railroad Company, and others, defendants, to foreclose a second mortgage given to secure the payment of bonds. The Cincinnati, New Orleans & Texas Pacific Railway Company, the Alabama Great Southern Railroad Company, and the New Orleans & Northeastern Railroad Company filed cross-bills for payment of certain claims in priority.

In Equity. Bill in equity by Herman 0. Fechheimer who claimed a preference over other creditors of Morris H. Sloman, a merchant doing business under the firm name of Sloman Bros., and filed this bill to foreclose his mortgage security. Other creditors filed cross-bills, and this contest between secured and unsecured creditors arose.

<p>Judgment—Effect—Res Adjudmata.</p> <p>A receiver of an insolvent tiled a bill to set aside a deed from the insolvent to his son, while largely indebted, but before insolvency proceedings, and a mortgage given by the son to certain creditors of his father, to secure their debts, alleging the'deed to he without consideration, and the mortgages fraudulent preferences. Judgment was rendered for defendants. Held, a bar to a second bill by Imp alleging that the son was a creditor of the father, and that the conveyance to him was a fraudulent preference, and the subsequent mortgage therefore void.</p>

<p>Deed—TJpon Condition—Breach—Reversion.</p> <p>Where land is conveyed upon consideration that a railroad cpmpany is tO' “locate, erect, and maintain” upon the land its depot, and in pursuance of the conveyance the, depot is erected and maintained for 11 years, and then is removed, the land does not revert. It is only a failure of part of the consideration, entitling the grantor to his action at law therefor.</p>

<p>In Equity. On pleas to supplemental bill.</p>

At Law. On motion for a new trial. Action by Maria Robostelli, administratrix of the estate of Joseph Robostelli deceased, against the New York, New Haven & Hartford Railroad Company for the death of plaintiif’s intestate. Verdict was rendered for plaintiff, and defendant moved for a new trial.

At Law. On motion for new trial. This action was brought by Naylor, the plaintiff, as administratrix, to recover damages for the death of her intestate, who was an engineer in the employ of the New York Central & Hudson River Railroad.

On Exceptions to Master’s Report. Sam Price, intervenor, tiled a claim against the receivers of the Texas & Paciiiu Railway Company for damages for personal injuries sustained while in their employ. Held: if the danger was greater than could be discovered by the use of ordinary care, the employer may be in default when the injury was produced in a manner not anticipated.

<p>On Question Kesorved for Examination.</p> <p>This is an action brought by George Deibold against the Phcenix Insurance Company of Brooklyn, on a policy of fire insurance.</p>

<p>1. Promissory Notes—Action on—Defense of Accommodation Maker.</p> <p>In an action on a promissory note, made by defondant,, be set up in his answer that, the note was purely an accommodation note, made under the express agreement that defendant should not be held liable thereon, which was also agreed to by plaintiff at the time he purchased the note; that the payee of the note had paid plaintiff in settlement 40 per cent, of the amount; and defendant demanded that the note be returned to him for cancellation. Held, that, the answer sets up a purely legal dofenso, and not an equitable defense which could not he received in an action at law in a federal court.</p> <p>2. Same.</p> <p>In an action upon a negotiable promissory note, brought by the indorsee against, the maker, it appoared. that, the nolo had been given to the indorser as accommodation paper, under an express agreement that defendant should not be held liable on the note. Held., that defendant could not take advantage of the agreement against a bona fide purchaser for value, before maturity, unless it appeared that at the timé of the purchase he knew of the agreement.</p>

<p>1. Wills—Residuary Legacy—After-Acquired Property.</p> <p>t A residuary devise of real property, under the Oregon statute of wills, (section 1.) may and will pass after-acquired property, if such appears to have been the intention of the testator.</p> <p>2. Same.</p> <p>H., an unmarried man living in Portland, made his will, and, after making two specific devises of real property situate in New York, devised and bequeathed to his sister Ellen E. Ray all the rest of his lands wherever situate and all his “personal property and estate of whatever kind or nature, ” after which he purchased other real property, of which he died seized, leaving brothers, including the plaintiff, not mentioned in his will. Ifeld, that the intention of the testator to make his sister Ellen his residuary devisee was manifest, and that she took the after-acquired property under the devise in the will.</p> <p> (iSyllabus ly the Court.) </p>

<p>At Law; On motion for new trial.</p>

This was an application by Charles Deere for a writ of mandamus to compel the hoard of county commissioners of Bio Grande county, Colorado, to levy a tax. The defendant answered, and plaintiff filed demurrer thereto.

At Law. On motion for new trial. Two actions brought by Edward Bodart, solo survivor of 0. Morlot & Co., against Robert Schell and others, executors of Augustus Schell, late collector of customs, to recover back excess of duties paid under protest. A trial by jury was had, and verdict rendered for plaintiff.

Action to Recover Back Customs Duties. Plaintiff, the American Net & Twine Company, brought action against Roland Worthington, collector of the port of Boston, for certain duties paid under protest.

<p>1. Internal Revenue—Taxation oe Railroads—Act oe 1870.</p> <p>The act of congress of July 14, 1870, relating to the taxation of railroad bonds, was part of the general system of income taxation, and fixed a time when that system should expire; and, in taxing the interest on such bonds as part of the corporate earnings, it applies only to interest actually paid, not to interest merely payable.</p> <p>2. Same.</p> <p>Where two railway companies consolidate, one assuming the debts of the other, this is a payment of such debts, as between such corporations, but is presumably not a payment, from the “earnings” of the debtor, within the meaning of those internal re\ untie laws which provide for taxing corporate incomes.</p>

<p>Internal Revenue—Illicit Distilling—Rev. St. U. S. § 3279.</p> <p>One who erects a “shanty” in which is put- up an illicit still, does not come under Rev. St. U. S. § 3279, which provides that “every person who works in any distillery * i:' * on which no sign is placed and kept, * * shall be lined, ” etc.</p>

<p>Indictment for carrying on the business of retail liquor dealer, without having paid the special tax.</p>

<p>Patents for Inventions—Infringement—Use of Combination-—Damages.</p> <p>The entire commercial value of machines made and sold by defendant was due to the use of a combination described in the fourth and fifth claims of the Dodge patent, which consisted in a new combination of old elements, and not in a mere improvement upon certain prior machines. Held, in an action for infringement, that it was proper not to deduct from damages awarded the value of such prior machines.</p>

<p>In Equity. Bill for Injunction.</p>

<p>Patents for Inventions—Anticipation—Heel Plates.</p> <p>The Pyke English patent, as a whole, shows a theoretical and fanciful method of making shoes, but it shows a last, the edge of which is a steel plate formed with radially placed inclines surrounding the entire edge of the last. Nails or brads being forced through the sole and insole, “their points come against the inclines of the last, and are thereby clinched or riveted. ” Held, that the Pyke patent is an anticipation of letters patent No. 296,623, to Frederick Richardson, for securing heel plates to rubber shoes, as the latter should be construed.</p>

<p>1. Patents for Inventions — Patentability — Preliminary Injunction Transom.</p> <p>The invention described in letters patent Ho. 186,801, reissue Ho. 9,807, issued to John F. Wollensak, July 20,1880, which merely provides for a proper support for the upright rod of a transom lifter, to prevent its being bent by the weight of the transom, consisting of a guide or loop beyond the rod’s junction with the lifting-arm, and the extension of the rod to the loop, is of such doubtful patentability as to prevent the issuance of an injunction veniente lite against its infringement.</p> <p>2. Same—Reissue—Delay.</p> <p>The reissue of a patent, which was merely an expansion of the original claim, was made eight years after the original grant. Ho excuse was offered for delay during the first four years, lie Id, that the delay invalidated the reissue; following Wollensak v. Reiher, 115 U. S. 96, 5 Sup. Ct. Rep. 1137.</p> <p>3. Same—Infringement—Transom.</p> <p>Defendant’s device for lifting transoms having the essential elements described in letters patent Ho. 191,088, issued May 22, 1877, to John F. Wollensak, to-wit, a long stationary guide, with holes and notches, a spring locking bolt fitting into the holes, a sliding block or head-piece carrying a spring bolt up and down the guide, and means for disengaging the locking device with one hand, and without changing the hold, is an infringement of such patent, following Wollensak v. Reiher, 28 Fed. Rep. 424.</p> <p>4. Same—Extent of Claim—Improvement.</p> <p>The improvement in a transom lifter, embraced in letters patent Ho. 196,851, issued Hovember 6,1877, to John F. Wollensak, consisting in the substitution of a metal plate in place of guide-eyes, and the patentee having voluntarily limited his claim to a plate slotted at both ends, a lifter having a plate not slotted at both ends is not an infringement.</p> <p>5. Same—Patentability—Judicial Decision.</p> <p>The patentability of the invention described in letters patent reissue Ho. 9,307, issued to John F. Wollensak, July 20, 1880, having been cast in doubt by the decision of the supreme court in the case of Wollensak v. Reiher, 115 U. S. 87, 5 Sup. Ct. Rep. 1182, in which the court refuses to decide that point, acquiescence in the validity of the patent before the decision does not bar one from afterwards contesting it.</p> <p>6. Same—Patentability—Adjudication in Favor of.</p> <p>In a suit for the infringement of a patent, the bill was demurred to upon the ground of the non-patentability of the invention. Held, in a subsequent suit for the same cause, that the overruling of the demurrer upon defendant’s failure to appear and argue it, was not an adjudication in favor of patentability.</p>

<p>lt Shipping—Charter-Party—Northern Passage.</p> <p>The term “northern passage,” as used in the Mediterranean fruit trade, and incorporated in a charter-party to ship fruit from Sicily to Boston, held to have a distinct moaning, and that its course is from Gibraltar north of the Azores, if possible; if not, just south of the islands; thence to the southern point or tail of the Great Banks; and then direct to port.</p> <p>3. Same.</p> <p>In an action for damages for loss of a cargo, where the charter-party provided that the vessel should take the “northern passage, ” held that, in the absence of any known passage to which that description had been given, the ship was bound to keep the coolest passage those in the trade were accustomed to keep.</p>

In Admiralty. Libel by C. L. Snowden & Co. against Henry M. Hodgson and others, late owners of the tow-boat The Wm. Kraft, to recover damages for negligent towage, causing loss of libelant’s boat.

In Equity. On motion for injunction and receiver. This was a suit brought by George M. Daniel against David R. C. Brown, Elmer T. Butler, James M. Downing, John C. Eames, George H. Hewitt, J. P. Downing, and J. C. Bates to set aside certain conveyances.

At Law. Demurrer to the complaint. Richard H. Lee, Henry H. Eaton, C. E. Stuart, and R. T. Barton, plaintiffs, sued Henry S. Terbell, William J. Best, et ah, alleging that they were appointed special commissioners by a judgment duly made and entered in the circuit court of Richmond, Virginia, and that the defendants made certain bonds to them. Defendant Terbell demurred, alleging that the judgment under which the commissioners were appointed Avas not, sufficiently set out.

At Law. On demurrer. The plaintiff’s declaration, omitting the formal parts, is as follows: * * * Jesse K. Sanborn complains of Alexander Rodgers * * * for that the said defendant did make and execute a certain instrument, in writing, signed by him, and did deliver the same to the said plaintiff, which said instrument is in the words and figures following, to-wit: “Muskegon, Mich., July 8, 1881. “To Whom It may Concern: This is to certify that I hereby authorize J. K.…

At I jaw. On motion for new trial. This action was brought by Otto Wunderlich against the city of New York, to recover damages for personal injury on the street of defendant city. Judgment for plaintiff for $800. Plaintiff moves for new trial.

<p>1. New Trial—Misconduct of Jury—Recommendation by Jury.</p> <p>In an action against a railroad company by an employe for injuries received while in its service, the jury returned a verdict for the defendant, and at the same time the foreman handed the clerk a paper, signed by him, stating,that the jury would recommend the defendant to reimburse the plaintiff for expense and loss of time caused by the accident. There was nothing but mere outside statements of the jurors to show that the agreement to recommend influenced them in finding their verdict. Held not such misconduct as would warrant setting aside the verdict, statements of jurors not being admissible to show misconduct by them.</p> <p>Same—Verdict Contrary to Evidence.</p> <p>In an action against a railroad company for injuries received from being caught between two of defendant’s vessels, some of the evidence tended to show that the injury was caused by the acts of defendant’s servants, and some that it was caused by the motion of the tide. Upon a former trial the jury had disagreed. Held, that the verdict for defendant was not so manifestly against the preponderance of the evidence as to warrant setting it aside.</p>

<p>New Trial—Grounds for Trial—Failure to Urge Defense on.</p> <p>In an action against a railroad company for injuries sustained by a passenger on one of its trains, occasioned by another car being kicked against the one she had entered, the defendant claimed that plaintiff was improperly in the car before the train was made up, and introduced considerable testimony as to prohibitions, publicly given to the passengers on the platform at the time, against entering a car until the train was made up. No exception was taken to any part of the charge, and no request made to charge that the plaintiff had the burden of affirmatively proving that there were no prohibitions against her entering the car, and that she consequently was rightfully therein. Relé, that such question would not be considered on amotionfor a new trial.</p>

<p>1. Rescue—Op Goods under Seizure—Indictment.</p> <p>On an indictment for attempt to rescue goods under seizure it appeared that defendant, on arriving at the place soon after the officers liad obtained possession, sprang from his wagon in a violent manner, and, with abusive terms, threatened to get his gun from the adjoining house and shoot the officers, who only prevented him from accomplishing his purpose with much difficulty, and after an obstinate resistance. Hdd, that if this conduct was the result of a sudden impulse of passion, excited by a supposed injury inflicted by the officers upon defendant’s mother, a conviction would not be warranted; but that although defendant afterwards stated that he acted under such impression, and helped the officers in placing the goods upon his wagon, agreeing that it might be used for bearing them away, the jury could consider his subsequent attempt to prevent its removal by threats aud"violent conduct, as showing his original purpose, and a connection between all his transactions.</p> <p>S. Witness—Credibility—Former Testimony.</p> <p>A contradiction between the testimony given by a witness at the trial and that given before the commissioner upon a preliminary examination, tends to lessen its credibility; hut where the commissioner testifies that he did not give a complete report of the evidence, and the testimony was not so full as at the trial, an omission from the examination of testimony given at the trial may be attributed to the incompleteness of the report.</p> <p>8. Same—Credibility—Interest.</p> <p>The testimony of near relatives in behalf of a defendant charged with crime is to be weighed with great caution.</p>

<p>Motion in Arrest of Judgment.</p>

In Equity. On order to show cause for contempt. Suit by Harlan S. Howard and Ellen F. Perkinson, as administratrix of the estate of John E. Perkinson, deceased, against the Mast, Buford & Burwell Company.

<p>1. Patents eok Inventions—Public Use—Assignment.</p> <p>Plaintiff's assignor discovered a certain process in 1877, but did not apply for n patent until 1881, when an interference was declared with a patent issued in 1879, but on the hearing the right of plaintiff's assignor to a patent was declared to be prior. It appeared that the letters patent issued in 1879 had been several times assigned, and finally assigned to defendant. Held, that the assignment of the letters patent was not a sale of the thing or process patented, within the meaning of Rev. St. U. S. § 4920, providing that when the thing patented had been in public use or on sale for two years before application for patent, an action for infringement would not lie.</p> <p>2. Same—Abandonment—Delay tn Application.</p> <p>In an action for the infringement of a patent it appeared from the bill that the process was discovered in 1877, but no patent applied for until 1881. Held, that the mere delay to apply for a patent was not an abandonment of the invention.</p>

<p>Patents for Inventions—Infringement—Damages.</p> <p>Plaintiff's patent was a device intended for use in laying a particular kind of pavement, in common use, and which any one might lay. In an action for damages for an infringement of his patent, tho measure of damages is the profits received hy the infringer over what would have been derived by adopting some other available method, he not being required, by the terms of his contract, to use this particular device.</p>

<p>Collision — Bktg and Schooner — Sailing Free an» Close-Hatjlhd — Conflicting Evidence—Lights—Credibility of Witnesses.</p> <p>About dawn the schooner Helen Augusta was sailing full and by, on a course about E. by if., with the wind about N. íí. E. The breeze was moderate, the weather clear, and the schooner was making some four or five knot?. She was run into and sunk by the brig Havilah, sailing free, on a course W. 2L On conflicting evidence, held, that the schooner’s green light was at all times shown to the brig; that she made no material change of course that misled the brig, except a luff in extremis, not constituting a fault; and that, as the brig was sailing free, and the schooner close-hauled, it was the duty of the brig to keep out of the way; that the brig was negligent in not seasonably observing the lights of the schooner, in not keeping constant watch upon them, and in not taking timely measures to avoid the schooner.</p>

In Admiralty. Libel for salvage. In November, 1837, while the steam-ship Brabo was on a voyage from Central America to Mobile, Alabama, she went on the rocks near Cape Antonio light, Island of Cuba. A large number of the crew were disabled by fever, and libelants, Thomas McColley and others, who were passengers on the vessel, rendered sundry services, in the way of paying out cables, fastening and raising anchors, and the like, although they had opportunities for leaving her.

<p>1. Salvage—Compensation.</p> <p>A schooner, worth with her cargo $86,800, lost her main and mizzen masts at sea, and, after running down the coast, anchored off Cliicamicomico beach, near Wimble shoals, on the North Carolina coast, and hoisted a signal of distress, which remained up for several hours. The Baker Salvage Company, a professional wrecking company, with headquarters at Norfolk, Virginia, on hearing of the location and condition of the vessel by telegraph, sent a tug valued at $80,000, which, after great risk, and in bad weather and heavy seas, took her in tow and brought her to Norfolk; the expedition taking about two days. The time was in December. Held, that $8,600 was a proper salvage award.</p> <p>2. Same—Compensation—South Atlantic Coast.</p> <p>Salvage services on the South Atlantic coast demand specially liberal salvage awards, on account oí its peculiar difficulties and dangers, and the special necessity ior skilled wreckers arising from, such difficulties and dangers.</p>

<p>1. Garrikks—Restriction of Liabtmty—Iíttmber oi<’ Pieces and Weight.</p> <p>A clause iu a bill of lading which slates that the vessel is not to be responsible for the number of pieces, or the weight, removes the ship’s presumptive liability for the weight stated in tbs bill of lading, and leaves her liable only for what is proved to have been actually put on board; and where different weights are put in evidence by the consignee, the greater cannot be adopted without some preponderating proof in its support.</p> <p>2. Shirring—Carriage off Goods—Delivery—Forwarding.</p> <p>Á vessel arrived with a consignment of iron rails deliverable to two several consignees. The quantity delivered to respondents was short of that called for by their bill of lading. The discharge was made direct from the ship into ears of a railroad company authorized by the consignees to accept delivery, and it appeared that the master of the vessel hadlndicatedrespondents’ portion of the rails as they were put on the cars, but that, owing to some mistake, in which respondents’ agent participated, one car-load had been forwarded to the wrong consignee. Held, that it was not the duty of the master to act as forwarder, find as the vessel had properly delivered tlie rails she was entitled to freight without rebate.</p>

<p>1. Shipping—Shobtage—Bill op Lading.</p> <p>■Whore a bill of lading declares, in effect, that the ship or the owners are not to be held responsible for numbers or weight, they cannot be held liable for shortage, without further proof than the statements of the bill of lading as to the actual amount delivered by the shipper. This rule applies both to actions in rem, and in personam.</p> <p>3. Same.</p> <p>The evidence showing satisfactorily that respondent’s steam-ship had delivered all the bars of iron which had'been loaded upon her, and on which a shortage was claimed by reason of the statement in the bill of lading of the number shipped, held, that respondent was not liable.</p> <p>3. Same-Bill op Lading—Construction op Tekms.</p> <p>The term “131 bars short shipped,” used in a bill of lading, construed to mean so many less than the number previously stated.</p>

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

In Equity. On bill for injunction. The bill in this caso contains substantially the following allegations: (1) The plaintiff is a sovereign state, recognized as such by the several treaties with the United States, which are particularly mentioned. (2) Within its territory the plaintiff has the right of eminent domain, as well as all other sovereign attributes.

At Law. On motion for new trial. James W. Jenkins sued Mrs. Eliza Funk to recover commissions on a sale of real estate made by plaintiff under authority from Mrs. Funk’s agent. Verdict for defendant, and motion for new trial by plaintiff.

<p>In Equity. On bill for injunction.</p>

<p>In Equity. On bill for injunction.</p>

<p>In Admiralty. Libel for damages for injury to the person.</p>

In Admiralty. On the twenty-fourth of November, 1886, the libelants shipped on board the propeller Capt. John, Now York, a barrel of whisky, to be transported to New Rochelle, and delivered to Michael Cullen. It was carried to New Rochelle, and first placed temporarily in the warehouse of the line at that place, and the consignee notified of its arrival, who immediately refused to receive it, on the ground that he had not purchased ■it, and knew nothing about it.