Volume 39 — Federal Reporter

<p>1. Removal of Causes-—Citizenship—Petition—Amendment.</p> <p>Where neither the petition for removal of a cause from state to federal court on the ground of diverse citizenship, under the removal act of March, 1887, nor the record, shows that defendant was a non-resident of the state where the suit was brought at the time of filing the petition, the federal court does not obtain jurisdiction, and cannot allow the petition to be amended so as to give it jurisdiction.</p> <p>3. Same—Remand.</p> <p>Where the federal court has remanded the cause because of the defective record and petition, an amended petition, filed in the state court, relates back to the time when the original petition was filed, and is in time if that was.</p> <p>8. Same.</p> <p>The federal court not having obtained jurisdiction, its order remanding the cause is no bar to a subsequent removal on the same transcript.</p> <p>4. Same—-Appeal.</p> <p>A petition for removal, filed in the slate court on the earliest day possible, is an abandonment of a prior appeal from an interlocutory order which cannot be superseded, where the appeal does not appear to have been perfected.</p>

At Law. Suit by J. W. Hoover against the county of Crawford, on 59 pieces of county scrip of different values, and of the aggregate value of $3,000. All of said scrip bears date July 12, 1887. Defendant demurs to the complaint “because it fails to state facts sufficient to constitute a cause of action.”

<p>Bankruptcy—Provable Debts.</p> <p>The liability of a subscriber to corporate stock for his unpaid subscription is a provable debt in bankruptcy against the estate of such subscriber, though no assessment has yet been made, under Bev. St. U. S. § 5067, providing that all debts due and payable from the bankrupt at the commencement of proceedings or then existing and payable in the future shall be provable debts.</p>

<p>At Law Action by Charles Bard, receiver of the Hayward Rubber Company, against Joseph Banigau, for money had and received.</p>

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

<p>At Law. On motion to vacate certain orders.</p>

In. Equity. This was a hill to recover damages for the infringement of letters patent No. 222,895, issued to William D. Gray, December 23, 1879, for “an improvement in roller grinding-mills;” patent No. 289,518, issued to Daniel E. Dowling, December 4, 1883, for a “feed mechanism for roller-mills;” and patent No. 274,508, issued to D. W. Marmon, March 27, 1883, for a “roller-mill.” The invention covered by the Gray patent was stated in the preamble to consist “in a peculiar…

In Equity. On motion for injunction. Bill to restrain infringement of a patent by the Coleman Hardware Company and others against Kellogg, Johnson & Bliss, impleaded with the Pullman Sash-Balance Company.

<p>In Admiralty. Libel for services and advances by Alvin Doolittle against William Knobeloch, owner of steamer Bellevue, and the steamer Bellevue.</p>

<p>1. Maritime Liens—Supplies for Restaurant on Boat.</p> <p>Under Hie Pennsylvania act giving liens against domestic vessels navigating the rivers Allegheny, Monongahela, or Ohio, a lien exists for supplies furnished to an excursion boat, and dispensed to passengers from a lunohcounler kept on board the boat, such supplies having been furnished upon the credit of the boat on the order of the master, a part owner.</p> <p>2. Same.</p> <p>Debts thus contracted for soda-water, cider, and spirituous and ma.lt liquors, supplied to the boat and dispensed thereon to passengers, are liens under the act.</p> <p>S. Same.</p> <p>The lien for a debt thus contracted for provisions supplied to the boat, is not affected by a private agreement between, the owners of the boat and the person in charge of the lunch-counter, unknown to lien claimant.</p>

<p>1. Shipping—Carriage of Goods—Delay.</p> <p>On October 2d libelants chartered a vessel to carry a cargo of lumber; the vessel to be at the port of loading by October loth, “ excepting the acts of God in weather * * * preventing,’’and to be loaded as fast as the vessel could receive. Though ready to be moved in two or three days, the vessel was allowed to remain moored at her wharf until October 11th, and did not reach the port of loading until November 2d. She was detained for painting four or five days longer, though it appeared that the painting could have been completed in three days. Fourteen days were consumed in loading, during which time the master was absent, and the loading suspended, for four days. The loading could have been done in six days, and the lumber was ready on October 15th. An old pilot advised the master to clear a certain bar when partly loaded, and have the balance lightered down, offering him lighters, but the master refused. When the vessel arrived at the bar, it could have passed over, but the master was absent, and remained away for six days, during which time he was urged to depart promptly with the cargo. The vessel did not get across the bar until December 22d, having gone aground. Libelants had meanwhile urged lightering, saying that the cargo would be thrown on their hands unless promptly forwarded, and that they would seize the schooner for damages, and had offered the master a tug to haul the vessel over the bar, which he declined. The sale of the cargo was lost by the delay. Held, that the delay in loading and departure violated the charter-party, and entitled libelants to damages.</p> <p>2. Same—Freight.</p> <p>Though the charter-party provided that the freight should be paid in advance on the vessel’s being loaded, libelants could properly refuse to pay the freight because of the delay.</p>

<p>1. Stranding Vessels-—Anchors and Cables—Fouling.</p> <p>Good seamanship requires that the inboard end of the anchor cable, if fastened, be lashed with ropes only, that may be cut at a moment’s notice, and the anchor slipped when necessary</p> <p> 2. Says. </p> <p>The yachts G. and V. having anchored in Larclimont harbor, and a gale arising', during which both dragged their anchors, the G. got under way for another harbor, and in doing so crossed the line of the Y.’s cables and fouled them with her starboard anchor, not yet hove aboard. On being hailed to slip the cable she was unable to do so, because the chain was shackled fast, and both vessels, through the fouling, shortly went ashore. . lie d, that the G. took the risk of crossing the V.’s cables, and of her inability to slip her cable at once, and was solely liable for the damages.</p>

<p>1. Courts—Jurisdiction—Aliens.</p> <p>Rev. St. U. S. | 2165, confers the power to naturalize aliens on “courts of record of any oí the states having common-law jurisdiction.” 2 Rev. St, Mo. 1879, p. 1511, establishing the court of criminal correction, declares it tobe a court of record, and gives it “exclusive original jurisdiction of ail misdemeanors under the laws of the state committed in the county (now city) of St. Louis.” Held, that as the common law and all general statutes enacted by parliament before the fourth year of the reign of James I. have been adopted In Missouri, and as the proceedings of the court are in accordance with common law except as modilied by the Code of Criminal Procedure, the court is one of common-law jurisdiction, and authorized to naturalize aliens.</p> <p>2. Aliens—Naturalization'—Per j ury.</p> <p>Rev. St. U. S. § 2167, requires the court to ascertain whether the applicant for naturalization under that section has resided three years in the United States before attaining majority. Held, that a third person, swearing falsely in that regard, is liable to the penalty prescribed in section 5424 for any witness who in such proceeding- falsely'makes an oath “required or authorized” by the naturalization laws.</p> <p>?. Same—Indictment.</p> <p>An indictment for such offense, alleging that the person who administered the oath was a deputy-clerk of the court of criminal correction, and acting as such when the oath was administered in open court, is sufficient without alleging the steps by which the officer became deputy-clerk.</p> <p>4. Same.</p> <p>As the district court of the United States takes judicial notice of the laws of the state in which it is situated, an allegation that the deputy-clerk was authorized to administer such oath is not necessary.</p>

<p>On Motions to Strike Out Parts of Petitions.</p>

<p>1. Carriers—Interstate Commerce—Unlawful Discrimination.</p> <p>A railroad company is not guilty of an unlawful discrimination or preference in violation of sections 3 and 3 of the interstate commerce act by receiving from a shipper cotton at Delhi, La., shipping it to Vicksburg, having it compressed there at the company's expense, and reshipped to eastern points for a rate equal to its published through rate from Delhi to such eastern points, where such an arrangement is in compliance with a recognized custom, of which all other shippers, including petitioner, could or did avail themseíves, and where it does not appear that petitioner desired to ship any cotton from Delhi to the eastern points, or that he was compelled to pay a higher rate under similar circumstances.</p> <p>3. Same.</p> <p>The fact that cotton raised near Vicksburg being considered by eastern buyers to be superior to other cotton, arrangements are sometimes made to induce such buyers to believe that cotton actually raised in other localities was raised in the vicinity of Vicksburg, cannot be imputed to the railroad company so as to make the transaction by which it stops and compresses cotton at Vicksburg for eastern shipment an unlawful discrimination.</p>

<p>At Law. Suit to recover tax on telegraph poles.</p>

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

<p>1. Election—-Supervisor—Compensation—United States Marshal.</p> <p>The attorney general, by authority from the president, prior to the appointment of the plaintiffs, the one as supervisor and the other as special deputy-marshal, notified them that they would be paid for only four days’ attendance upon the registration and one day at the polls on the day of election for representatives in congress. The registration offices were required by the state law to be open for two days in May, June, July, September, and October, making 10 days in all; and under the act of congress it was the duty of both the supervisor and the special deputy marshal to be present on duty at the offices of registration, and at the election polls, and they did so attend.</p> <p>Held, that the act of congress prescribed the duties of and the compensation of both the supervisor and the special deputy-marshal, and that, having in the performance of that duty been required to actually serve more than 10 days, they were entitled to 1he full compensation prescribed by the act of congress.</p> <p>3. Same.</p> <p>Held, that there could be no implied contract by which the appointee undertook to perform less than the whole duty, and to receive less than the full • pay enacted by congress.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity. Exceptions to master’s report. Intervention of John Lundien. Petition for damages for personal injuries to employe.</p>

<p>1. Public Lands—Title from State—Recital in Patent.</p> <p>Recitals in the patents of the state are deemed to be made upon suggestion of the grantee.</p> <p>2. Same—Deeds—Recitals—Parol Evidence. .</p> <p>The recitals in a deed constitute a part of the title. The acceptance of a deed by a grantee makes its recitals evidence against him, and parol evidence is inadmissible to contradict or vary them.</p> <p>8. Same —Swamp Lands —Grant to State — Subsequent Sale by United States.</p> <p>The grant of the swamp lands to the state by the act of congress of September 28, 1850, passed the title from its date, and after that time the United States could not make a sale of such lands that would divest the rights of the state under that act. But where the United States sold such lands subsequent to the grant, it was competent for the state to confirm the title of the purchaser from the United States; and that was done by the acts approved January 11,1851, and December 14,1875. By these acts the state’s title to all swamp lands sold by the United States after the 28th of September, 1850, is vested in the purchasers of such lands from the United States, except in cases where such lands had been sold by the state, or persons had acquired a pre-emption or other vested right to them under the laws of the state prior to their sale by the United States.</p> <p>4. Same.</p> <p>It has been the constant and uniform policy of the state of Arkansas and the United States to avoid confusion and conflict in the title to swamp lands growing out of the delay in their selection and confirmation, and their sale in the mean time by the United States. This policy has been carried out by the state confirming the titles of the purchasers of such lands from the United States, and accepting in lieu thereof the purchase money received therefor by the United States, which the latter, by the acts of congress approved March 2, 1855, and March 3, 1857, agrees to pay over to the state.</p> <p>6. Same—Application to Purchase.</p> <p>By law, one applying to the commissioner of state lands to purchase swamp lands, under the act of March 18, 1879, is required to prove by affidavit, before the commissioner, and to be filed in his office, the existence of certain facts. Reid, following Rice v. Harrell, 24 Ark. 402, that the proof of these facts in the mode prescribed by law is a condition precedent to the right of the applicant to purchase, and to the authority of the commissioner to sell, lands, under that act.</p> <p>6. Same—Quitclaim Deed—Burden of Proof.</p> <p>Where the state makes a quitclaim deed to land alleged to be swamp land, but which has never been selected, certified, or designated as »uch by any officer or agent of the state or the United States, the burden of the proof is on the grantee in such deed to show by clear and satisfactory proof that the land was swamp land on the 28th of September, 1850. Unsatisfactory character of the proof in this case commented on.</p> <p>7. Same—Evidence—Field Hotes.</p> <p>The field-notes of the survey' of the public lands are competent evidence, and have the force of a deposition.</p> <p>8. Same—Selection by Agent.</p> <p>By an act approved January 6, 1851, the state elected to select the swamp lands to which she was entitled under the act of September 28, 1850, and for that purpose appointed an agent in each county, whose duty it was to select and report all swamp lands in the county. The agent for the county in which the land in controversy lay selected and reported the swamp lands in that county in 1860, or earlier; and it is not shown that the state has selected or made any claim to any other lands in that county under the swamp-land grant, since that time. It is a maxim of the law that a public officer is presumed to have fulfilled every requisite which the discharge of his duty demands, and this maxim is applicable to the state agent, and it will be presumed that he selected and reported all the swamp lands in the county in accordance with his official duty; and, after the lapse of 80 years, and on the facts of this case, this presumption would seem to be conclusive.</p> <p>9. Same—Evidence—Official 'Reports.</p> <p>The official reports and correspondence of public officers of the stale and the United States, relating to the swamp lands of the state, and published by authority of the legislature, are public documents which the court has a right to consult, even if not made formal proof in the case.</p>

At Law. Ej'ectment. “This is an action of ejectment brought by the plaintiff against the defendant to recover the possession of the site of Hawkins Point… Held: together with the water which covers them, by the state, in its capacity as a sovereign, for thq public use and enjoyment of all its citizens. There is attached to tins title a trust, to-wit, for the use and benefit of ali its citizens in navigation and fishery. The state cannot divest its title of this trust.

<p>1. Trusts—Sale in Trust.</p> <p>A sale of property “in trust, ” held, under the circumstances, not to he a sale in trust to pay the debts of the vendor.</p> <p>Vendor and Vendee—Vendor’s Lien—Assignment—Subrogation.</p> <p>A grantor’s lien on the premises conveyed, for the purchase price, is a personal privilege, not assignable with the debt; nor can the creditor of the grantor be subrogated to the same.</p> <p>8. Corporations—Purchase of Their Own Stock.</p> <p>In the absence of any statute to the contrary, a corporation may purchase and dispose of its own stock, provided the same is done in good faith, without intent to injure the creditors thereof, and they are not injured thereby.</p> <p>4 Same—Deeds—Attorney in Fact.</p> <p>An attorney of a corporation must execute a deed in the name of his principal, but under his own hand and seal.</p> <p> {Syllabus by the Court.) </p>

<p>At Law. On motion to strike out-</p>

<p>Immigration—Board of Commission'krs -Deregation of Powers.</p> <p>The board of commissioners of emigration, who by act Cong. Aug. 3, 1882. are required to examine into the condition of immigrants, cannot delegate to a committee the power to determine whether such immigrants shall be permitted to land.</p>

<p>Customs Duties—Export Bonds—Breach.</p> <p>Act Cong. June 9, 1880, (31 St. at Large, 167,) provides that exported articles shall be entered on the outward manifest of the ship taking them abroad, but is silent as to who shall perform that duty. Held, that where goods are consigned to the collector of customs at the port of shipment, to be by him shipped abroad, and he gives a personal receipt therefor, reciting that “the said merchandise was duly inspected and marked at this port, and laden on board the foreign-bound steamer W., * * * and that said vessel and cargo were duly cleared from this port, ” the exporters had a right to presume that the goods had been entered on the ship’s outward manifest, and the fact that they had not been so entered was not a breach of the export bond. The fact that in the collector’s receipt, which was on a printed form, the clause expressing the entry of the goods on the outward manifest is struck out, is immaterial when such receipt is not given until after the vessel has cleared.</p>

At Law. On motion to dismiss. _ This was an action against Edward L. Hedden, formerly the collector of the port of New York, to recover damages for having as such collector excluded the plaintiff from the public stores, which the plaintiff sought to enter for the purpose of affixing and canceling internal revenue stamps upon certain cigars imported from a foreign country by certain importers who had employed the plaintiff to affix and cancel such stamps.

At Law, The plaintiffs in 1886 imported from Amsterdam and Rotterdam certain fish, and in 1887 from Marseilles certain Castile-soap.

At Law. This ivas an action against a former collector of the port of New York to recover duties alleged to have been improperly exacted. The plaintiffs in the spring of 1886 imported tomatoes from the island of Bermuda. The collector classified them as “vegetables in their natural state,” and assessed them for duty at 10 per cent, under the provision therefor in Schedule G of the tariff act of March 3, 1883.

<p>In Equity. On bill for infringement of patent.</p>

<p>1. Collision—Steam and Sail—Tacking.</p> <p>Where a steamer has shaped her course to keep out of the way of a sailing vessel on the wind, the latter is bound to beat out her tack.</p> <p>2. Same.</p> <p>The steamer I., going west in Long Island sound, and rounding Throgg’s point, saw the schooner A. W. T. beating west on her starboard tack towards the south-westward, and when within a half or three quarters of a mile of her shaped her course to pass astern of the schooner. The latter soon after tacked to the northward across the steamer's course, and collision ensued. There was nothing to prevent the schooner’s continuing her former course at least a quarter of a mile further to the southward. Held, that the schooner was in fault for not heating out her tack, as in effect required by rule 24. The steamer was also in fault for not observing her tacking, and not keeping out of the way, as she might have done, notwithstanding the schooner’s fault.</p> <p>8. Same—Death by Wrongful Act—Contributory Negligence.</p> <p>The captain was personally in charge of the navigation of the schooner, and was killed by the collision. In an action brought by his administratrix for loss of life under the statute of the state of New York authorizing suit where the deceased might have maintained an action if living, held, that whether or not a maritime cause of action, cognizable in an admiralty court, could he created by state legislation, this action would not lie, except under the conditions imposed by the statute; and inasmuch as by the state law contributory negligence would bar the action in the state courts, the libel for the captain’s death could not be maintained in admiralty.</p>

<p>1. Collision—Steamer and Vessel at Anchor.</p> <p>The bark O. was anchored in the South pass of the Mississippi river, about a mile above the jetties, close to the eastern bank, in the usual and proper place for vessels anchoring in the pass. She lay with helm lashed and bare masts. The steamer A. was coming down the pass in the middle of the channel, and when one-fourth of a mile above the O. the A’s steering apparatus became deranged, because a nut worked off from one of the buckle screws attaching the starboard rudder chain. She became unmanageable and sheered towards the O. Her engines were reversed, and she was backed, but her headway was not lessened, and she struck the O’s bow, causing damage to both vessels. The A. was furnished with an additional and after-steering gear, ready to be used, and taking but a moment tobe putin gear for use, provided a man was standing by to put in the necessary pin. On this occasion no one was by, and, although it was connected before the collision, it was too late to have any effect. Held, that the A. was in fault, because her steering gear was not properly se•eured, watched, or inspected, and because she did not keep her hfter steering gear in readiness for instant .use; and that the O. was not in fault.</p> <p>2. Same—Duty of Vessel at Anchor.</p> <p>As the A. approached the O. the master and others on board the A. called out to the O. to pay out her cable so as to drop astern, out of the way, but there was no watch on the O. to take such steps. The A. was nearly straight with the O., and the A’s pilot, who was in charge of her navigation, gave no order to the O. to pay out cable, but was sailing the A. to pass the O. as she lay, and on the supposition that the latter should not move. Under the evidence it was doubtful whether dropping astern by the O. would have avoided the collision, or would have made it more certain and damaging. Held that, although the O. was in fault in not having an anchor watch, this did not contribute to the collision.</p>

<p>In Admiralty. Libel on a general average bond. On appeal from dirtrict court.</p>

<p>Towage—Counter-Claim for Damages—Admiralty—Practice.</p> <p>Since, in a suit for towage, the defendant, who has a counter-claim for damages for negligent performance of the contract, in excess of the libelant’s claim, cannot recover his full damages by answer, but only by cross-libel, and as he cannot split up his cross-demand, but must try it in the cross-suit, he is entitled to have the libel and cross-libel heard together, if brought in the same court. If brought in different courts, judgment on the libel for towage should be stayed until reasonable opportunity had for the trial of the larger counter-claim in the cross-action.</p>

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

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

<p>1. Public Lands—Donations—Railroad Companies.</p> <p>Act Cong. July 27, 1866, granted to the A. & P. Co. every alternate section of public land by odd numbers to the amount of 10 sections on each side of the road wherever it might pass through a state. If any of these sections should be already granted, reserved, etc., before the map of the proposed route should be filed, other odd sections might be selected in lieu thereof within 10 miles on either side of the limits so granted. Whenever and as often as a portion of the road 25 miles long should be completed patents were to issue for the lands so granted, opposite to and coterminous with the portion or portions completed. The odd sections so granted were withdrawn from entry, etc. By section 18 the S. P. Co. was granted the same amount of lands, under similar restrictions, and it was provided that neither the present nor prospective rights of the A. & P. Co. should be thereby impaired. Held, that only the odd sections in the strip absolutely granted, and not those in the indemnity strip, were withdrawn from the public domain, and that the A. & P. Co., not having complied with the conditions of the grant, had neither a present nor prospective right to any lands in the last-mentioned strip, which wóre therefore still subject to grant.</p> <p>2. Same.</p> <p>Act Cong. March 3, 1871, granted certain lands to the S. P. Co., to aid it in the construction of a branch line, and provided that if its route, when designated, should be found to be on the line of another road to which land had also been granted, the amount theretofore granted should be deducted from the quantity thereby granted to the S. P. Co. so far as their routes should be on the same general line. The map of the route of the A. & P. Co. was afterwards filed, and the routes of both roads were for some distance on the same general line. The S. P. Co’s route included in its 10-mile limit part of the indemnity strip of the A. &P. Co., at points where the A. &P. Co. wouldhavehad the right to make selections of lands in lieu of others already taken up. Held, that the S. P. Co. acquired no rights as to lands in said indemnity strip so far as the two routes were on the same general line.</p> <p>8. Same—Mexican Chants.</p> <p>Lands claimed to be included in a Mexican grant of a specific boundary, which grant was subjudiae at the time of the grant of March 3, 1871, were not public land at that date, and did not pass by the grant though they were afterwards held not to be embraced by the Mexican grant.</p> <p>4. Same—Relief against Mistake—Limitation of Actions. •</p> <p>A bill filed by the United States as real and not merely nominal complainant. to repeal patents improperly issued, is not baried by the statute of limitations or by laches.</p>

In Equity. On final hearing. The Farmers’ Loan & Trust Company, a New York corporation, brings this suit in its capacity as trustee in a mortgage or deed of trust, executed January 1, 1881, by the Chicago, Portage & Superior Railway Company, a corporation of Illinois and Wisconsin, having power to construct and equip a railroad from the city of Chicago to a point on the north line of the former state, at or near the village of Genoa, Wis., thence by the way-of Portage to…

<p>In Equity. On motions to strike plea, and to dismiss.</p>

<p>l'n Equity. Sur exceptions to clerk’s taxation of costs.</p>

<p>1. Banks and Banking—Checks—Acceptance.</p> <p>A cattle company had agreed to sell to one T. certain cattle for 022,000. T. offered in payment his check on defendant bank. The vendor refused to accept it unless plaintiffs, to whom vendor was indebted, would accept it in payment of the debt. The payee in the check telegraphed to defendant asking if it would pay T.’s cheek for §22,000, and defendant telegraphed: “T.is good. Send on your paper.” The telegram was shown to plaintiffs, who took the check in payment of their debt. Held, that the answer was an acceptance of the check for the sum named in the first telegram, and was sufficient, under Rev. St. Mo. § 533, providing that an acceptance of a bill of exchange must be in writing, and section 534, providing that an acceptance on a separate paper will bind the acceptor in favor of one to whom it has been shown who takes the bill on the faith thereof for a valuable consideration, to render defendant liable to plaintiffs on the check.</p> <p>2. Same—Acceptance before Check Drawn.</p> <p>In such case the evident purpose of the inquiry being to obtain assurance ■of payment before taking the check defendant, was liable under Rev. St. Mo. § 535, providing that an unconditional written promise to accept a bill before it is drawn shall be deemed an actual acceptance in favor of any person to whom it is shown, and who on the faith thereof receives the bill for a valuable consideration.</p>

<p>At Law. On motion for new trial.</p> <p>Action on fire insurance policy by Russell Williams against Queen’s Insurance Company.</p>

At Law. Action for use and occupation. On the 1st November, 1388, the plaintiff filed his petition in this court, under the provisions of the act of congress of March 3, 1887, c. 359, in which he seeks to obtain compensation from the United States for the use and occupation of the site of Miller’s Island light-house, which was built by the United States in the year 1874 on the bottom of the Chesapeake bay, one of the public navigable waters of the United States, at about 200…

At Law. This is a suit against defendant for damages, plaintiff claiming in his original complaint that he was injured by the negligence and carelessness of defendant in not providing suitable and proper brakes for defendant’s cars; that he was on a gravel train of defendant as an employe; that he was so injured by defendant, while its employés were engaged in switching cars, by reason of defective brakes with which said cars were supplied by defendant.

<p>1. Telegraph Companies—Negligence,</p> <p>If a message is written by the sender on a telegraphic blank containing stipulations restrictive of the right of recovery in case of negligence in the transmission of the message, he is bound by such stipulations whether he reads them or not; no fraud or imposition being used to prevent him from acquainting himself with their purport.</p> <p>3. Same.</p> <p>A stipulation requiring a claim for damages for such negligence to be presented in writing within 30 days is valid, and, no reason being shown for failing to present it, no recovery can be had.</p> <p>8. Same—A utiiorpl'y of Agent.</p> <p>Although a telegraph company’s rules prohibit its agents from receiving messages written otherwise than on its printed blanks, a sender ignorant of the prohibition is not bound thereby, and hence where the agent, without the sender’s request, copies a message written on ordinary paper onto a blank, the sender will not be bound by the stipulations in the blank.</p> <p>4. Same.</p> <p>A telegraph company is held only to reasonable care and diligence in the transmission of messages, and if stress of weather prevents their being sent by the usual and most direct route, the company is not chargeable with negligence by selecting the next best available route.</p> <p>5. Same.</p> <p>It is no excuse for delay in transmiting a message that an agent at an intermediate point was in doubt as to its proper destination, the message being addressed to “Wallace” instead of “Wallis, ” there being no place in the state of the former name, if he knew of the existence of the latter town, and failed to send it to that point.</p> <p>6. Same.</p> <p>If the error in'tlie name was chargeable to the agent who received the message from the sender, the company would be liable, regardless of the diligence used by the agent at the intermediate office to discover the correct destination.</p> <p>7. Same.</p> <p>Where the message alleged to have been unreasonably delayed contained information of the probable death of plaintiff’s wife, and the only means by which, if the dispatch had been duly received, plaintiff could have arrived before her death was by a train which passed at a distance of 15 miles from the point to which the message should have been sent, within 2 hours and 15 minutes,after the earliest timé at which he could have received the message, it is for the jury to decide whether he could have reached her while living, and therefore whether he was injured by the delay.</p> <p>8. Same—Damages.</p> <p>The recovery in such a case is measured by a proper compensation for the disappointment and anguish suffered by plaintiff’s inability to be with his wife before her death, no punitive damages being allowed, nor should the grief naturally arising from the wife’s death enter into the determination of the amount awarded.</p>

At Law. On motion to direct verdict. On October 13, 1887, plaintiff, a lady 45 years of age, was a passenger over the defendant’s railroad, traveling from Kansas City to Wellington, Kan. At Newton, an intermediate station, she was obliged to alight and change cars. Being notified by the station agent that the train for Wellington was ready, she started to take her place in the passenger coach.

At Law. This was an action against a former collector of the port of New York to recover duties alleged to have been exacted in excess of the lawful rate on certain goods known in trade as “worsted coatings” or “cotton backed worsteds.” The evidence showed that these goods had a face of worsted and a back of cotton warp and shoddy filling; that shoddy was a substance made by tearing into shreds woolen or worsted rags; and that the goods were worth less than 80 cents per…

<p>1. Customs Duties—Action to Recovkb.</p> <p>The expense of changing goods from one condition to another is a part of their dutiable value, and is not one of tbe charges made non-dutiable by section 7 of tbe tariff act of March 8. 1883.</p> <p>2. Same —OoNSTituoTios ov Statute.</p> <p>Where an importer has caused rice purchased abroad by him to be ground before shipment into granules of sufficient fineness to entitle it, under the rulings of the treasury department, to he entered at a lower rate of duty than ungróund rice, the cost, of granulation forms part of the dutiable value of tbe article, and cannot be deducted therefrom by the importer as a non-dutiable charge.</p>

<p>In Bankruptcy. Sur exceptions to the register’s report upon the account of Richard Arthurs, la1e assignee.</p>

<p>Bankruptcy—Distribution—Partnership—Firm and Private Creditors.</p> <p>The bankruptcy act of 1841 provides that the “net proceeds of the joint stock shall be appropriated to pay the creditors of the company, and the net proceeds of the separate estate to pay the separate creditors.” JTeM that, as partnership debts are both joint and several, there is no marshaling of assets unless there is a joint as well as a several fund before the court.</p>

<p>Patents—Infringement—Pleading.</p> <p>A bill alleging that defendant has infringed a patent owned by complainant, and originally granted to James Foley, for an improvement in waste-valves, and that complainant has sold said valves under the trade name and stylo of “Foley’s” and “Foley’s Patent.” and “that said trade name, during the life of paid letters patent, is identified therewith, and of great value *• }n ¿¡escribing said patented valves as a trade-mark, and that the defendant has sold his infringing valves under the trade name of ‘Foley’s Patent Valves,’ ” and praying, inter alia, that defendant be enjoined from selling any waste-valves under the name of “Foley’s” or “Foley’s Patent Valves, ” states only one good cause of complaint, i. e., for infringement of a patent. The name of the patented device is not properly speaking a trade-mark.</p>

<p>1. Damages—Proximate and Remote.</p> <p>The owner of a raft of lumber employed a tug to bring it down to 0.,where it was to be loaded on a schooner under contract with the charterer. Owing to the tug’s negligence the raft was wrecked, delaying the loading of the schooner, and causing the charterer to incur demurrage, which the owner of the raft had to pay, On libel by the latter against the tug he testified that when he engaged it he told the master: “I had a vessel that was delivering with demurrage, and I wanted him to bring this lumber to town with dispatch.” The master testified that libelant merely told him that he was in a hurry for the lumber, and wanted it brought down as soon as possible. Held, that demurrage was not an item of damages within the contemplation of the parties, and could not he recovered.</p> <p>8. Same—Elements of Damage.</p> <p>Libelant having made diligent efforts to save the raft after it was wrecked, respondent is liable not only for the lumber lost, but also for all proper expenses in saving the remainder.</p>

<p>In Admiralty. Libel in rem for wharfage by Lyman T. Ranstead against the schooner William H. Brinsñeld, a foreign vessel.</p>

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

<p>Removal of Causes—Sjeeabable Oontbovebsy.</p> <p>To an action against a railroad company by one asserting an indebtedness claimed to be a first lien on the defendant's track, a mechanic’s lien claimant and the mortgagee of the company were made parries. The mechanic’s lien claimant filed a cross-petition, assorting- his lien, to which the mortgagee w*as made a party. The mortgagee, in his petition for removal, claimed that his lien was prior to each of the lien claimants, and that the mechanic’s lien claimant was estopped to assert a lien superior to that of the mortgage. Held, that the controversy presented was simply the question of priority of liens, and that the petition failed to show a separable controversy between the mortgagee and either of the lien claimants, which could be determined without the presence of the railroad company.</p>

<p>1, Removal of Causes—Local Pub,rumen—Aliens.</p> <p>A cause to which an alien is a party is not removable to the United States circuit court under the “local prejudice” clause of the removal act of 1887, which provides for the removal of controversies between citizens of the stale in which the suit is brought and citizens of other states, on the ground of local prejudice.</p> <p>S. Same—Coepobations—Citizenship.</p> <p>A corporation created by the consolidation of several corporations existing in different states, by an act of the legislature, which provided that such corporation should be treated as a corporation created by tbe laws of the state authorizing the consolidation, is, as concerns a suit against it by an alien, a citizen of that state, and not entitled to a removal of such suit under the local prejudice clause of the act of 1887.</p>

<p>Federal Courts—Jurisdiction—Navigable Waters.</p> <p>The federal courts have jurisdiction of an action by a steam-boat company to recover damages of a railroad company for obstructing a navigable river of the United States by building a bridge across it, regardless of the citizenship of the parties.</p>

<p>In Equity. Motion to appoint examiner.</p>

<p>1. Banks and Banking—Collections—Insolvency.</p> <p>By agreement and custom the Fidelity Bank received drafts from its correspondent bank at E., and credited them to it as cash, with the understanding that any draft which was unpaid should be charged back to the correspondent. The latter forwarded drafts which were credited to it, but were not collected before the Fidelity Bank failed. The drafts were paid after the appointment of a receiver, and the moneys actually came into his hands. The drafts were indorsed payable to the Fidelity Bank “for collection for the” bank at E. Held that, is the drafts wore, when received, credited as cash to the bank at E., which had the right at once to draw against them, the indorsement for collection did not affect the result, and the bank had only the rights of a general creditor.</p> <p>2. Sami;—Proof of Claim.</p> <p>The Fidelity Bank, when it failed, owed $5,881.40 to the bank at E., which had collected $1,873.97 on drafts of other banks sent to it by the Fidelity Bank for collection, and had credited the proceeds to the Fidelity Bank. The proceeds were claimed both by the banks which had sent them and by the receive? of the Fidelity Bank. Held, that the bank at E. should be allowed to prove up its claim before 1he receiver for whatever amount it saw lit,, and the receiver should be allowed to accept the proof and pay a dividend thereon, without prejudice as to any claim he might have on the proceeds of the drafts collected by the bank at E.</p>

In Equity. On final hearing. On May 13, A. D. 1854, Mrs. Floride Calhoun was seised and possessed of the plantation or tract of land situate, lying, and being in that part of Pickens district, which is now Oconee county, in the state of South Carolina, on the east side of Seneca river, known as the “Fort Hill Place,” containing 1,110 acres, more or less; and on that day the said Floride Calhoun and her daughter, Cornelia M. Calhoun, sold and conveyed this plantation or tract…

<p>1. Mortgages—Lien—Notice of Prior Grantees.</p> <p>At the time of the execution of a mortgage persons were in possession of several of the parcels of the land mortgaged, claiming under contracts of purchase from the mortgagor, and had paid part of the purchase money. Some had built fences around their lots, and were cultivating them. Others had built, houses on theirs, and were living in them. Held, that their possession was sufficiently open and patent to put the mortgagee on inquiry, and to charge him with notice of all that he might have learned by such Inquiry.</p> <p>0. Same.</p> <p>Nor is the mortgagee entitled to a lien for the portion of the purchase money unpaid at the time the mortgage was recorded, in the absence of actual notice of the mortgage to the purchasers, as under Model. Dig. Fla. p. 215, § 6. the recording of a mortgage is only notice to subsequent purchasers and creditors.</p> <p>3, Same—Mortgageable Interest.</p> <p>The mortgagor had purchased the land conveyed by the mortgage, but the vendor re1 ained the deed subject to the payment of the purchase price. At the time of the execution of the mortgage he had neither title nor possession. Afterwards he offered to sell the land to D.. as the property of his vendor, giving no notice of the mortgage, hut furnishing an abstract showing the title m the vendor. D. purchased the land, and received upon payment of the purchase money the unrecorded deed to the mortgagor and a deed from the latter, both of which were recorded. Held, that the mortgagor had no mortgageable interest in the land, and that D. was not bound by the record of the mortgage.</p> <p>4 Same—Description—Reformation.</p> <p>A mortgage described two lots as “lots 13 and 14 of Burbridge’s addition. ” The hill for foreclosure alleged that it was the intention to convey 'Tots Í3 and 14 of block 1, in Burbridge’s addition to Jacksonville. ” It appeared that there were 10 blocks in Burbridge’s addition to Jacksonville, each containing lots numbered 13 and 14. -Whiie the record showed that the mortgagor hail title at the time of the mortgage to lots 13 and 14 of block 1, it also showed that he had in some manner dealt with lots 13 and 14 in block 2, and had at one time given a mortgage on them. Held, that the description was too indefinite to afford any notice to a subsequent bona fide purchaser of lots 13 and 14 in block 1, and that the mortgage would not be reformed as against him.</p>

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

<p>At Law. On demurrer to complaint.</p>

<p>At Law. On motion to dissolve attachments.</p>

At Law. On motion to direct verdict. This was an action of tort to recover for injuries received by plaintiff’s intestate at Groveton, N. H., in May, 1885. The writ contained three counts,—two at common law, and one to recover under the provisions of section 8 of chapter 162 of the General Laws of New Hampshire.

At Law. On motion for new trial. This is an action to recover money paid by plaintiff to defendants under a mistake of fact. On the 25th Of July, 1882, a pension certificate was issued to Alma Wood, as mother of Elias A. Wood, who died in the war of the Rebellion. On the 3d of August false vouchers, purporting to be signed by Alma Wood, and accompanied by a fraudulent affidavit and certificate, were presented to the United States pension agent at Syracuse.

<p>Negotiable Instruments — Negotiability — Certainty as to Time of Payment.</p> <p>A promissory note stipulated that “the payee or holder of this note may renew or extend the time of payment of the same from time to time as often as required, without notice, and without prejudice to the rights of such payee or holder to enforce payment against the makers, sureties, and indorsers, and each of them, parties hereto, at any time, when the same may be due and payable. ” Held, that the note was not negotiable.</p>

<p>In Bankruptcy. Report on final dividend.</p>

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

<p>In Equity. Infringement of copyright. Application for injunction.</p>

<p>Patents for Inventions—Novelty—Illuminating Gas Process and Apparatus.</p> <p>Letters patent No. 167,847, issued September 21, 1875, to Thaddeus S. C. Lowe, for an “improvement in process of and apparatus for tbe manufacture of illuminating or heating gas, ” contain a process for the manufacture of water-gas, containing but little nitrogen. The presence of nitrogen in illuminating gas is deleterious, and when it amounts to 9 per cent, or more, it amounts to a serious fault. The feature of the process consists in producing the gas in a close chamber,—that is, one from which the air is excluded,—or by an alternating, as distinguished from a continuous, process. All of the essential apparatus was old, except the fixing chamber, which is so arranged as to be heated internally by the products of combustion that escape from the generator and envelop the refractory material. Held that, as the invention introduced a very desirable advantage into the process of making illuminating gas, by which the expense is greatly lessened, the facts that the older inventions, which are now claimed to be susceptible of being modified by mere mechanical skill into the one in question, remained without modification until the patentee made it, and that his improvement at once commended itself to those skilled in the art, are sufficient to show patentable invention.</p>

<p>1. Patents fob Invf,ntions—Reissue—Haib-Crimpebs.</p> <p>Complainant’s original patent embraced hair-crimpers of two kinds,—one in which the fabric is stitched to the soft metal core; the other in which the fabric is fastened to the core by a metal fold, made by turning over the thin edges of the core, or of a strip of sheet-lead inside the fabric over the core. The original contained the clause: “I also modify my invention in various other equivalent ways, such as would suggest themselves to any intelligent mechanic, ” etc. The reissued patent contained claims for fastening the fabric to the core by cementing them together. Held, that the reissue was invalid, being an expansion of the original, and embracing a new, invention.</p> <p>2. Same—Reissue—Laches.</p> <p>If it be conceded that the inventions claimed in the reissue were described in the original, then, such claims being expansions, and more than three years having elapsed after the original was granted before the reissue was applied for, the doctrine of laches applies, and the delay must be held unreasonable in the absence of explanatory averments in the bill.</p>

<p>Patents fob Inventions—Staple-Deiving Machine—Infringement.</p> <p>Complainants’ patent was a combination of an inclined and retreating anvil to sustain tbe wire of a staple while being bent, and to sustain the staple while being driven, with the bender-foot and driver, in a wire-stapling machine. The bender-foot boxed the prongs of the staples on all but their inner sides, while the inclined and retreating anvil filled the space between the prongs, retreating from the crown as it was driven, and thus the prongs were supported at all points while being driven. Held infringed by a machine in which the anvil was the same in shape and operation except that it did not fill the space between the prongs entirely to the crown, where support was unnecessary.</p>

<p>Patents for Inventions—Infringement.</p> <p>Banjos made under letters patent issued April 3, 1883, to B. J. Cubley for improvement in banjos, in which the parchment rests directly on a rim consisting of a metal shell, in form like the old wooden rim, but differing from any rim previously made, and producing by such rim distinctive musical properties, do not infringe letters patent issued May 17,1873, to 0. B. Dob-son, for an improvement consisting of a ring, either of metal or wood, to ease the wear of the parchment against the rim, and improve the tone of the instrument; nor do they infringe letters patent issued November 18,1881, to Henry C. Dobson, whose improvement consists of a metal ring between the parchment and a rim of wood and metal, and which eases the parchment, as does the ring in the first patent, and produces a metallic musical sound.</p>

<p>1. Patents for Inventions—Processes for Maktng Beer—Novelty.</p> <p>The first and second claims of letters patent No. 215,679, granted to George Bartholomae, May 20,1879, are as follows: “(1) The process of preparing beer for the market, which consists in holding it under controllable pressure of carbonic acid gas when in the ‘ kraeusen’ stage, substantially, ” etc. “(2) The process of treating beer when in the kraeusen stage, which consists In bolding it in a vessel under automatically controllable pressure of carbonic acid gas, substantially, ” etc. Held, that these processes are invalid for lack of novelty. The vent-bungs known as the “Shaefer Bung, ” the “Gulh Bung, ” the “Bach-man Bung, ” and others are the vent-bung of this patent, in the sense that they have the same functions, and are automatic valves designed to control the pressure of the gas, and were used commercially in many breweries between 1861 and 18iG; being applied to shavings casks after the beer bad reached the k/raeusen stage, and, before the end of that stage, for controlling the pressure of the gas.</p> <p>%, Same—Infringement.</p> <p>The third claim of the patent, viz., “the process of preparing and preserving beer for the market, whicli consists in holding it under controllable pressure of carbonic acid gas from the beginning of the kraeusen, stage until such time as it is transferred to kegs and bunged, ” etc., must he limited to the application of the apparatus at the beginning of the kraeusen stage, and is not infringed by defendant’s apparatus, which, though the same vent-hung as that of the patent, is not applied until several days after the kraeusen has been introduced; the beer in the interval being allowed to work out of the bung-hole of the shavings cask.</p>

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

<p>Sur motion for an attachment against the defendants for contempt, in violating the injunction granted at final hearing.</p>

<p>1. Salvase—Compensation.</p> <p>A schooner laden with coal struck and sank in very dangerous water at the entrance oí Long Island sound, only the main rail being out of water. The locality was an exceptionally had one in which to save either vessel or cargo. Libelant, the owner of a wrecking equipment, offered to save the top-hamper for 50 per cent, of its value, ii successful, and subsequently offered to save it for 40 per cent., if he could have 7o per cent, of the cargo also as salvage service. The agent of the vessel’s owners accepted this proposition. The libelant communicated this offer to the consignees and insurers, without receiving any reply. Libelant look a lighter, a tug, and 12 men, and in 2 days had the top-hamper ashore safely. He secured the services of a large steam wrecking vessel, having a foreman and two men, and with his own lighter and tug proceeded to pump the coal out of the hull. After getting a small part out, hy the aid of the current the vessel was raised and, with difficulty, gotten ashore on the same day. Shortly afterwards the coal was removed. The top-hamper alone was worth $800 to $1,000, and the schooner and hamper were worth $1,200 to $1,500, and the coal was worth $1,575. The owners of the vessel paid libelant $600 more than 70 per cent, of his estimate of the value, and the insurers offered him their interest in the cargo for $600. The steam wrecking vessel usually earned $100 per day, and libelant paid her owners $600 for her services, which were indispensable to the saving of the vessel and cargo. Held that, considering the pecuniary risk and expense incurred by libelant, he should receive $1,000 for his salvage service upon the cargo.</p> <p>2, Same—Apportionment.</p> <p>While, as a general rule, the same ratio of assessment of salvage service should be applied to all the property, the expense of saving the hull and cargo being so much greater than that connected with the top-hamper, a higher rate of salvage should also be allowed.</p> <p>8. Same.</p> <p>Whether the vessel owners’ agent was authorized to contract on behalf of the owners of the cargo as to the rate of salvage or not, the contract made by him, by which he secured better terms for the vessel at the expense of the cargo owners, tended to unfairness, and should not be enforced.</p>

<p>Shipping—Bill of Lading—Negligence.</p> <p>Chlorides having been shipped in barrels, instead of the usual carboys, on their arrival a part was found lost by leakage. The bill of lading excepted liability for leakage. Held, that negligence in the ship must be shown to render the vessel liable for the loss, and, the cargo appearing to be well stowed, and no actual negligence proved, the libel was dismissed.</p>

<p>Removal op Causes—Time op Application.</p> <p>Under act Cong. March 3, 1887, (as corrected by act Aug. 13, 1888, 25 St. at Large, 433,) giving a right of removal “at the time or any time before defendant is required by the laws of the state or the rule of the state court” to plead to the complaint, where defendant under the Code of Civil Procedure of New York was compelled to answer by October 10th an application for removal made November 19th, was too late, though under section 542 defendant might have filed an amended answer during that time.</p>

<p>Sur Motion to Set Aside the Service of a Writ of Summons.</p>

In Equity. The bill states, in substance, that Henry S. McComb, in his life-time, held 800 shares, of the value of $1,000 each, in the Southern Railroad Association, as trustee for C. Brown Snyder, and that he failed to account for them, having converted them to his own use; and this suit is now brought to obtain a decree establishing the trust, and for the payment by the defendant of the value of the stock with its dividends, accretions, etc., including an order for an…

<p>Laches—Mining Property.</p> <p>Complainant claimed mining property under an agreement made seven years before suit brought, which was to become effectual in the event of the other party thereto prevailing in proceedings about to be instituted by him to recover the legal title to the property from adverse claimants. Complainant would have been the principal witness in the proceedings for the plaintiff therein. That litigation was compromised, complainant never asserted any claim to the property, and he was informed of the compromise more than five years before bringing this suit, during which time the property was developed and shown to be of great value by defendants, who received it on the compromise, complainant not objecting to their expenditure and work on the property. A suit was brought by complainant under the agreement several years before this suit, but it was in a court which had no jurisdiction, and was voluntarily abandoned. Held, that complainant’s rights were barred by laches as against defendants.</p>

<p>Injunction—Trespass—Nominad Damages.</p> <p>The court will not enjoin a municipal corporation from laying a ditch or flume over private property, though the entry by the city was made on the Sabbath day, and in a forcible and lawless manner, where it appears that the ditch is for a necessary public purpose, and that complainant’s damages are but trifling.</p>

<p>Set-Off—Unliquidated Damages—Insolvency.</p> <p>A garnishee of an insolvent company is not entitled, upon intervention in an action by the company’s creditors for appointment of a receiver, etc., to have set off against the judgment obtained against it as garnishee a claim against the company for unliquidated damages growing out of the breach of a contract independent of the one upon which the garnishee was garnished, and arising subsequent to the service of process in the garnishment.</p>

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

<p>1. Master and Servant—Fellow-Servants—Brakeman and Car Inspector.</p> <p>A car inspector is not a fellow-servant with a brakeman, but is a representative of the employer.</p> <p>2. Same—Bisks of Employment—Latent Defects.</p> <p>While a brakeman cannot recover for injuries caused by defective brakes if he had, or by the exorcise of reasonable prudence might have had, knowledge of such defects, he is not hound to look for latent or hidden defects.</p> <p>8. Same—Measure of Damages for Personal Injuries.</p> <p>In estimating damages for personal injuries to plaintiff, a servant, caused by defective appliances, the jury may consider (1) the Value of the time lost during the period of disability; (2) fair compensation for the mental and physical suffering caused by the injury; (3) the probable effect of the injury upon plaintiff’s future health, and ability to earn money and pursue the course of life for which he was fitted.</p>

<p>At Law. Trial by the court.</p>

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

<p>Patents foe Intentions—Keemkntz Collab Button.</p> <p>The patent granted to complainant, May 6,1884, for “a collar or sleeve button having a hollow head and stem, the said head, stem, and the base-plate or back of the said button being shaped and made of a single continuous piece of sheet-metal, ” is void for want of novelty. The Stokes patent, No. 171,882, January 4, 1876, covers a button composed of a single piece of sheet-metal, the only difference being that the head is flat and solid instead of round and hollow, like complainant’s: and the Keats patent, No. 177,653, May 9, 1876, also covers a button made of a single piece of sheet-metal, having a hollow head and hollow stem, of the same form as complainant’s.</p>

<p>1. Patents for Inventions—Infringement—Accounting.</p> <p>Under section 4921 of the Kevised Statutes, where a decree is given in a suit in equity restraining the infringement of a right secured by patent, the court may also decree a recovery of the profits arising from such infringement and the damages the plaintiff has sustained thereby.</p> <p>8. Municipal Corporation—Infringement of Patent.</p> <p>Where the council of Portland authorizes a contractor to lay a sewerin one of its streets, in pursuance of a power contained in its act of incorporation, and in so doing the contractor infringes upon the patent of another for making sewer-pipe, the act being a corporate one for the benefit of the corporation, it is liable for such infringement, the same as a private corporation or person.</p> <p> (Syllabus by the Court.) </p>

<p>In Admiralty.</p> <p>Libel for refusing to sign bill of lading.</p>

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

<p>Admihalty—Reheautno.</p> <p>A rehearing of a canse will not be granted after an assessment of damages, upon alleged new evidence that is equally controverted, and involves the reconsideration of all the previous evidence. The remedy is by appeal.</p>

<p>Shipping—General Average—Negligent Stranding.</p> <p>Voluntary stranding, made necessary by negligence on the part of the ship, does not entitle the ship-owners to a general average contribution from the cargo saved.</p>

<p>In Equity. On petition for ancillary proceedings.</p>

<p>At Law, On demurrer to complaint.</p> <p>Action for damages by Alfred Allec against O. M. Reece.</p>

<p>Pleading—Amendment—Laches.</p> <p>Plaintiff had filed an amendment to his bill, after the expiration of the patent sued on, introducing new causes of action, and moved to extend the time for taking testimony. He had allowed three years to elapse in total inactivity on account of the alleged unsettled state of the law. Held, the delay not being sufficiently excused, the amendment will be stricken off and the motion dismissed.</p>

<p>1. Corporations—Stock—Sale—Right to Dividends.</p> <p>When a corporation declares a dividend, the earnings represented by the dividend are no longer represented by the stock, but become a debt due to the owner of the stock at the time of the declaration, and this right of the stockholder does not pass by a transfer of the stock, in the absence of a special agreement. That the dividend is payable at a future date does not affect the stockholder's right.</p> <p>$. Principal and Agent—Authority—Liability of Principal to Third Persons.</p> <p>An owner of stock on which a dividend had been declared, but not paid, authorized an agent to sell the stock, expressly reserving the right to the dividend. The agent agreed with the purchaser that the dividend should go with the stock. Held,that the purchaser had no right to assume that the agent, because possessor of the stock, was authorized to sell the dividend, which formed no part of and did not pass as an incident to it, and as to that dealt with the agent at his peril, and that the principal was not bound by the representations.</p> <p>S. Same—-Ratification.</p> <p>The owner received from the agent the exact amount for which he had authorized the stock to he sold, without any knowledge of the agent’s representations and agreements, or that the purchaser claimed to have purchased the dividend. No transfer was made or demanded of the dividend. The owner was first informed by the treasurer of the company of the purchaser’s claim, but the ground of the claim was not disclosed, and the purchaser asserted none to the owner. Upon the maturity of the dividend the owner brought suit against the company, and upon the trial he was informed for the first time of the facts upon which the purchaser based his claim. Held, that the retention of the proceeds of the sale did not amount to a ratification of the agent’s unauthorized acts.</p>

In Equity. Suit by the Andrews Bros. Company against the Youngstown Coke Company, Limited, to reform a certain written instrument, for specific performance thereof by defendant, and general relief.

Indictments against D. S. Terry for an assault with a deadly weapon; attempting to obstruct justice; obstructing United States marshal; and displaying deadly weapon in a threatening manner. Also against Sarah A. Terry for attempting to obstruct justice and obstructing United States marshal. On demurrer to plea in abatement.

<p>In Equity. Bill to restrain infringement of patent.</p>

<p>In Admiralty. Libel for recovery of demurrage in delivering cargo.</p>

In Admiralty. On appeal from the district court, 37 Bed. Rep. 153. libel by Deborah A. Serviss against the steam-ship Chattahoochee, for damages by sinking libelant’s canal-boat. Brom a decree in favor of libelant, with an order of reference to ascertain the amount of damage, claimant appeals.

<p>1, CAr.uiER3—Interstate Commerce Act—Contkmrokaneotjs Services.</p> <p>To carry two barrels of sugar for one person on a given date, and to carry one barrel of sugar for another person, between the same points, over the same route, two days later, are contemporaneous, and like services withyi the meaning of section 2 o£ the interstate commerce act.</p> <p>3. Same—Dieferunce in Quantity of Patronage.</p> <p>The fact that defendant’s road received much more traffic from the first shipper than from the second does not make the circumstances and conditions under which the two services were rendered substantially dissimilar.</p> <p>8. Same—Locar and Through Hates.</p> <p>Defendant’s company received from a connecting carrier at Hannibal, Mo., under an alleged traffic arrangement, two barrels of sugar shipped by the latter companyffrom Chicago, and carried it to Hopler, Kan., for 84 cents per cwt., that being defendant’s company’s proportion of a rate of ol cents per cwt. from Chicago to Hopler. About the same time it charged a local shipper at Hannibal 46 cents per cwt. for carrying a barrel of sugar from there to Hcpler. lield, that on these facts the two services were rendered under substantially dissimilar circumstances and conditions.</p> <p>4 Same—Undue Preference.</p> <p>Whether the difference of 12 cents per cwt. between defendant’s company’s local rate from Hannibal to Ilepler and its proportion of the through rate from Chicago was an undue and unreasonable preference or advantage over the local shipper, within the meaning of section 8 of the interstate commerce act, was a question for the jury.</p>

<p>In Equity. On final hearing.</p>

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

<p>Customs Duties—Classification—Ikon Beams.</p> <p>Pieces of iron specially manufactured, fitted, purchased, and shaped as parts of a particular floor frame are not dutiable, under 33 U. S. St. at barge, 499, as “iron or steel beams, girders, joists * * * and building forms, together with all other structural shapes of iron, ” but fall within another clause of ’he schedule covering “manufactures, articles, or wares not specially enumerated, ■■ - composed wholly or in part of iron, ” although they might be merchantable as beams, or other articles specifically enumerated, when the frame is taken to pieces.</p>

<p>Fines—Costs—Payment in Virginia Coupons.</p> <p>When a person, arrested under a capias pro fines in favor of the commonwealth of Virginia for the satisfaction of certain fines and costs due the state, tenders the amount of the same in genuine coupons cut from the state bonds, which by law are receivable for all fines due the state, he is entitled to his discharge, and the acceptance of the coupons cannot be ref used on the ground that the costs belong to the officers, as there is no indebtedness on the part of the prisoner to the officers individually for their work and labor. The costs are a part of the punishment, and the officers claim them not individually, but as officers of the state.</p>

<p>Patents for Inventions—Prior Use.</p> <p>Letters patent No. 269,535, granted to Walter S. Ovens, December 26, 1882, for an improvement in cake-machines, claims as novel a machine with an intermittingly-moving endless apron for carrying the tray along as the cakes are deposited thereon, combined with a vertically-movable dough-box, and a pan-supporting table, and a material box and mechanism for moving one towards and away from the other, thus depositing the material in the pan. Defendant’s machine had a stationary dough-box, with a vertically-moving apron, and it had been in public use for more than two years before the Ovens patent was applied for Held, that a bill to restrain defendant’s use of his machine as an infringement of the Ovens patent should be dismissed.</p>

<p>1. Patents bob Inventions—Reissue—Paper Bags.</p> <p>Reissued letters patent No. 10,083, granted April 11, 1882, to Mark L. Deering, describe an invention consisting in a novel mode of folding and pasting a piece of paper into the form of a quadrangular, flat-bottomed bag. The original patent described the process as follows: “By making, in a sheet of paper or blank the folds, B and 0, then pasting together the two ends, A, A, forming the body or tube of the bag, then forming the fold E, at one end of said body or tube, and the inwardly projecting triangular folds, H, H, side folds, G, G, and fold, I, upon which is then folded the lap, J, secured in place by pasting. ” The reissued letters omitted in terms the second step, “forming the fold, E, at one end of said body or tube, ” but recited as its second step, “then spreading open one end of said body or tube.” Held, that this was the equivalent of the original, as it involved the previous formation of the fold, E, or an equivalent determination of the part of the tube to be made into the bottom of the bag.</p> <p>2. Same.</p> <p>The reissued patent contained a second claim for “a bag consisting of a bellows-sided tube having a satchel bottom and inward triangular folds, which form part of its two sides when distended. ” The application for the original contained a claim similar to this for a bag, irrespective of the process, but it was rejected, apparently because anticipated, and the claim was withdrawn. Held, that the patentee thereby waived his claim for a bag as a new article of manufacture, and that the reissue was obtained for the mere purpose of enlarging the monopoly of the patent.</p> <p>8. Same.</p> <p>Under such circumstances it is immaterial that the application for a reissu* was made within two years from the time of the original grant.</p> <p>4. Same—Infiuxoemext.</p> <p>Id the process described in the patents granted subsequent to the patent in suit to William A. Loren/ and William H. Honiss, the determination of the transverse line to define the part of the paper that is to be made into the bottom of the bag is effected by the use of a presser plate which marks the line without doubling back the part of the paper to be manipulated, as is done in the patent in suit, and the order of making the final laps, I and J, is changed, so that lap J is made first. Held, that the differences are immaterial, and bags made under these patents infringe complainants’ patent.</p>

<p>Collision—Between Steam and Sail—Lights—New York Bat.</p> <p>A steamer, properly manned, was going down the hay of New York, bound to sea. The night was clear, hut dark, and the steamer, heading S. by W., was running at about 9 or 10 knots per hour. The master noticed a white light ahead, but upon examination could discover no colored lights. He concluded that the light was on a vessel going in the same direction with the steamer, and, determining to pass on the west side, changed his course half a point. After going ahead a few minutes, he discovered that something was wrong, and immediately stopped his engine, and reversed, but it was too late to avoid collision. The vessel carrying the white light proved to be a schooner hound into port, heading N. by E. After seeing the steamer’s lights she luffed a little. Held, that the collision was caused by the faults of the schooner in exhibiting a white light, and in failing to display a green light, as required by international rules 1885. Affirming 33 Fed. Iiep. 554.</p>

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

<p>Seizure. In admiralty. Condemnation of property for being fraudulently brought into the United States.</p>

In Equity. Bill by Margaret B. Sowles, a married woman, suing by her next friend, against Edward A. Sowles, her husband, and Chester W. Witters, receiver of the First National Bank of St. Albans, to recover the avails •of certain stocks and notes, and to have set aside or transferred to her •certain leases and a mortgage.

<p>Arbitration and Award—Action on Award—Statutory Submission.</p> <p>No action at common law can be maintained on an award of arbitrators rendered under a statutory submission which does not comply with the statute.</p>

At Law. On two petitions by clerk of court under act of congress of March 3, 1887, (24 St. at Large, 505,) for fees charged against the United States in criminal cases, but disallowed by the comptroller of the treasury The petitions were consolidated by the court.

<p>Practice in Federal Courts.</p> <p>Under Rev. St. U. S. §§ 648, 649, making all issues of fact in the circuit court triable by jury except in proceedings in equity, bankruptcy, admiralty, and in cases of maritime jurisdiction, an action of book-account can be tried only by a jury, though section 914 provides that the practice in the federal courts shall be similar to that in the courts of the state in which the case is tried, and the action mentioned is triable under the state practice only by auditors.</p>

<p>Contracts—Const itc ction.</p> <p>Defendant leased certain premises to plaintiffs for a term of 10 years, on which plaintiffs agreed to erect a grain elevator in addition to one it then had and to furnish defendant with certain elevator facilities at all times during the term. Defendant agreed “that the total amount of grain received at said, elevators shall be at least 5,000,000 bushels on an average for each year during the term of this lease, and, in case it shall fall short of that amount, ” defendant agreed to pay plaintiffs one cent per bushel on the deficiency. Ildd, that defendant is liable for a dellciency in the amount of actual receipts, notwithstanding large quantities of grain were from time to time tendered to plaintiffs by defendant, and by them refused for the reason that their elevators were full. The contract is intended to cover just such contingencies.</p>

<p>Common Carriers—Baggage—Liability for Loss.</p> <p>A common carrier which, by its agent, receives and checks as personal baggage a trunk containing jewelry, the agent knowing or having reason to believe that the trunk contains jewelry, and not wearing apparel, is liable for loss of the property to the same extent as if the trunk contained nothing but wearing apparel.</p>

<p>Master and Servant—Injury to Employe.</p> <p>In a suit against a railroad company to recover damages for the death of an employe by a car drifting from a side track, it is error to submit to the jury the question whether the side track was properly constructed, and with ordinary care.</p>

In Equity. Bill for infringement of patent. Bill by James S. Toppan and others against The Tiffany Refrigerator Car Company, to restrain the infringement of letters patent and for an accounting.

<p>1. Patents fob Inventions—Licenses—Rieirr to Royalties.</p> <p>Plaintiff, the inventor of certain improvements in metal cans under patents dated in 1864 and 1866, and also a machine for manufacturing them, patented in 1867, granted to defendant the exclusive right to manufacture and sell cans embodying the inventions, which plaintiff agreed to defend, and also the right to use at defendant’s risk the machine, and all improvements in such cans, machines, and appliances which plaintiff should invent, the defendant to pay a royalty for each can. Plaintiff, in 1869, obtained another patent for a machine, and in 1871 for further improvements in the cans. Defendant manufactured cans, using the machine of 1869, and the invention of 1871, and embodying, as the parties supposed, the invention of 1864. Reports were made and royalties paid until 1877, when P., the owner of a patent similar to the invention of 1866, sued defendant for infringement. Plaintiff took the defense of the suit, and also brought suit against P. for cancellation of his patent, on the ground that it interfered with plaintiff’s patent of 1864. The suits resulted in a decree against defendant for infringement of P.’s patent, and the dismissal of plaintiff’s suit because the invention covered by plaintiff’s patent of 1864 was for a different invention from that of P.’s, which defendant used. Afterwards defendant discovered that the device used by him, embodied in plaintiff’s patents, was anticipated by an earlier patent, and P.’s suit was compromised for $6,000, which defendant paid, and charged to plaintiff. Held that, as the defendant had had the use of all that the parties understood he was to have, he was liable for the royalties on the cans manufactured.</p> <p>2. Same.</p> <p>The agreement also provided that, if plaintiff failed to maintain the validity of any of the inventions claimed, the defendant should pay an equitable proportion of the royalty for the parts remaining valid, to be fixed by arbitrators. Held, that this provision did not apply. Plaintiff failed in his suit against P., not because of the invalidity of his invention, but because the patent did not cover it. Besides, the failuré to maintain the validity of the patents in suits brought upon them would not affect the right to royalties which had accrued before such failure, and defendant was protected in the suit by P. by plaintiff’s paying the amount found due.</p> <p>8. Same.</p> <p>Defendant made cans not embodying the inventions of the patents of 1864 and 1866, but they did embody those of the patent of 1871 The agreement only provided for the use of this invention on cans which should be subject to the payment of a royalty. Defendant reported the number made, but re•ported them as different from the others, and not subject to royalty. Held, that in thus using the invention of 1871 'defendant became a tort-feasor, and was not liable for royalties in an action on the contract.</p>

<p>In Admiralty.</p> <p>Action against the steam-ship Barracouta for personal injuries.</p>

<p>In Admiralty.</p> <p>On exceptions to libel against the steam-ship Scotia and her master for carrying excess of passengers.</p>

<p>Admiralty—Jurisdiction.</p> <p>Libelant is an American citizen, who sues as assignee of the owners of the British ship A., and the action is brought, to recover damages caused by a collision in the English channel between the A. and the Gorman steamer B. The steamer has never been in the United States, none of her witnesses are hero, and her owner asks the court, on the above facts, to decline to entertain jurisdiction of the action. The owner of the German steamer has been requested, and has refused, to appear in an action instituted against him in a British court. Held, assuming, but not deciding, that it is competent for a court of admiralty, in its discretion, to decline to entertain jurisdiction of a cause of collision on the high seas where all the parties are foreigners, this case presents no grounds on which the court should so decline jurisdiction.</p>

<p>1. Federad Courts—Jurisdiction—Amount.</p> <p>The limitation as to amount in a controversy necessary to give the circuit court jurisdiction,,fixed by section 1 of the act of March 3, 1887, (34 St, at Large,) does not apply to suits in which the United States is plaintiff or petitioner.</p> <p>8. Same—Statutes—Reread.</p> <p>The old law embraced in section 639, Rev. St., gave jurisdiction of all suits at common law and in equity where the United States are plaintiffs or petitioners, atul it also contained an independent special clause, giving jurisdiction of all suits arising under the revenue, internal revenue, or postal laws. The act of March 3,1887, conferred jurisdiction of all suits at common law or in equity whore the United States are plaintiffs or petitioners, without reference to said special subjects. It is held, that the latter provision does not repeal by implication the grant of jurisdiction over the special subjects mentioned in trie independent clause of the original statute.</p> <p>8. Same—Actions by Government.</p> <p>It is a settled policy on the part of the United States to have its legal rights determined in its own courts,—a policy founded upon sound and vital reasons.</p> <p>4. Same—Presumptions.</p> <p>The right to sue in its own courts, having once attached, becomes a prerogative right, and congress will not be presumed to intend to deprive the g-overment of such right, unless the intention appears in plain and unambiguous terms.</p> <p>5. Statutes—Construction.</p> <p>When, under one of two possible eonstructions, a statute would divest the public of a right, violate a principle of settled policy, and avoid the methods of procedure which have been clearly indicated by many acts of previous legislation, in such ease, if there is doubt about the proper construction, the doubt should bo resolved in favor of the government.</p> <p> (Syllabus by the Court.) </p>

<p>1. Claims against United States — French Spoliation — To Whom Action Accrues.</p> <p>A claim of a citizen of France against the United States for cotton taken during the civil war was, under a treaty between the two nations,' submitted to a commission for adjudication, by his widow and administratrix. The commission found and reported the sum due, but withheld one-sixth of the amount for the reason that one of the three heirs of the claimant was an American citizen, whereupon the heir sued the United States for her portion so withheld. Held, that plaintiff had no cause of action, as, if any existed, it accrued to the administratrix.</p> <p>2. Same—When Fbench Government not Liable.</p> <p>The cause of action for such demand is not against the French government, as it received no money under the award for plain tiff’s benefit.</p> <p>8. Same—Jurisdiction of District Court.</p> <p>After the commission had passed upon the claim it was no longer a "war claim,” and the district court has jurisdiction of an action for its recovery.</p> <p>4. Same—Award of Commission—Res Adjudicata.</p> <p>The award does not render the plaintiffs demand res adjudieata, as her cause of action was never submitted to the commission.</p>

<p>1. Damages—Measure of, for Breach of Contract—Expenses and Profits.</p> <p>When there have been part performance, and expenditures properly made by one of the parties to a contract, which is broken by the fault of the other party, the party performing may recover his reasonable expenditures. He may also recover the profits of the contract, if he proves that direct, as distinguished from speculative, profits would have been realized. If the expenditures of- the party not at fault are unreasonable, it is the duty of the opposite party to show it.</p> <p>2. Same—Direct and Speculative Profits.</p> <p>Profits remote and speculative, and incapable of clear and direct proof, cannot be recovered; but when they are the direct and immediate fruits of the . contract, they may be. They are then part and parcel of the contract itself, entering into and constituting a portion of its very elements. Citing leading American case, Masterton v. Mayor, 7 Hill, 69.</p> <p>8. Same.</p> <p>The leading English case announces the rule thus: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered, either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. ’’ Hadley v. Baxendale, 9 Exch. 341-333.</p> <p>4. Same—Contingent Damages.</p> <p>Damages which are the legal and natural result of the act done, though to-some extent contingent, are not too remote to be recovered. Code Ga. § 3073.</p> <p>5. Same.</p> <p>Where, by the action of the party at fault, the profits of a contract have-been prevented, all recovery therefor will not be defeated because exact and absolute proof is unattainable; and, in view of the tortious refusal of the party at fault to perform it's contract, the party injured is permitted to show the particular facts which have transpired, and the entire transaction upon which the claim and expectation of profits is founded, in order to prove with, reasonable certainty what the profits would have been.</p> <p>,6. Same—Loss of Commissions by Agent.</p> <p>Where a company manufacturing agricultural steam-engines agrees to furnish an agent, who'sells on commission, the engines necessary to supply the season’s demand, and the agent makes large expenditures in advertising, canvassing, and otherwise building up the trade, and proves a heavy demand upon him for these particular engines largely in excess of his order to the company, the company refusing without sufficient cause to furnish tho engines ordered, will bo hold liable for tho sum of commissions on the engines ordered, and for the reasonable expenditures of the agent in their nndertak ing.</p> <p>'•f. Same—Remote Damages—Injury to Business.</p> <p>A claim for damages, upon the facts stated in the preceding section of syl* labus, for destruction generally of agent’s business, is too indefinite and nn certain to he the basis of a recovery.</p> <p>8. Contract—Excuse for Non-Performance.</p> <p>A clause in the contract, obliging the manufacturing company to furnish engines if the exigencies of their business permitted, gave them, under the facts, no arbitrary right to refuse. They must have a valid reason for the refusal, or its validity must be shown by evidence.</p> <p> {Syllabus by the Court.) </p>

<p>At Law. Action by Theodore Hodge and others against the Lehigh Valley Railroad Company.</p>

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

<p>In Equity. Bill for infringement of patent.</p> <p>Bill by Webster Loom Company against E. S. & N. D. Higgins. Complainant excepts to' the master’s report.</p>

<p>1. Patents for Inventions—Infringement—Damages.</p> <p>On a reference to a master to report the amount of damages for which the defendant should be charged for infringement of plaintiff's patent, it appeared that plaintiff received $200 as royalty for each machine manufactured by a licensee, and that plaintiff made a profit of like amount on machines made by himself, and that defendant was a close competitor of plaintiff in the market. Held, that a charge of $200 for each machine manufactured by defendant was not excessive.</p> <p>2. Same.</p> <p>The facts that plaintiff’s machines embraced other patents owned by him besides the one infringed by defendant, and that such other patents were also included in the license, furnish no grounds for altering the master’s finding, where he also finds that the efficiency and salability of the infringing machine depended upon the plaintiff’s patent.</p> <p>8. Equity—Bill of Review—Time of Filing.</p> <p>A bill of review for errors on the face of the decree must be filed within two years from the date of the final decree sought to be reviewed.</p>

At Law and in Equity. On exceptions to master’s report. The facts are sufficiently stated in the opinion.

<p>1. Copyright—Infringement—Illustrated Catalogue.</p> <p>Complainants published and copyrighted a book of engravings illustrating certain unpatented articles manufactured by them. Defendant manufactured similar articles from designs taken from complainants’ illustrations, and published a book of engravings illustrating its manufactures, in which several pictures were very like those in complainants’ book. Held not an infringement of complainants’ copyright.</p> <p>2. Same—Preliminary Injunction.</p> <p>Complainants’ book of engravings was published with a price-list of the articles described in it as an advertisement of those articles. Held, that it was a matter of so much doubt whether the engravings were intrinsically valuable as works of art that a preliminary injunction should be denied.</p>

<p>In Admiralty. Libel for damages through a collision.</p>

<p>1, Partition—Equity Jurisdiction—Adverse Claimants.</p> <p>Code Miss. 1880, § 2570, provides that, “if the title of the complainant seeking partition or sale of land for a division of its proceeds shall be controverted, it shall not be necessary for the court to dismiss the bill, or delay the suit for an action at law to try the title, but, the question of title shall be "tried and determined in said suit by the chancery court, which shall have power to determine all questions of title, and to remove clouds upon the title of any of the lands whereof partition is sought,” etc. He’d, that this section does not authorize a tenant in common to make defendants to his bill for partition persons claiming adversely to all the tenants in common.</p> <p>3. Federal Courts—Following State Decisions.</p> <p>Where the equity jurisdiction of the federal court is derived from a state statute, the construction put, upon the statute by the state supreme court ia binding upon the federal court.</p> <p>8. Same—Citizenship.</p> <p>A citizen of Now York filed his bill for partition in the federal circuit in Mississippi against citizens of Mississippi as tenants in common, and also joined as defendant a railroad company, a Mississippi corporation, which claimed title to the land adversely to all the tenants in common. Held, that as to the controversy between the tenants in common in regard to the partition the court had jurisdiction, but as to the controversy between the tenants in common and the railroad company it bad no jurisdiction, as the parties having the same rights and interests were not all citizens of states different from those on the other side.</p>

<p>At Law. On final hearing.</p>

<p>1. Master and Servant—Injury to Employe—Risks on Employment.</p> <p>Where in a suit by a brakeman to recover damages from a railroad company by which he was employed, for an injury received by an alleged defective draw-head on a car, the law as to the obligations of defendant, and the acceptance of risks and the degree of care required of plaintiff, is clearly set forth in the charge, the verdict of the jury will not he set aside on the ground that no negligence on the part of defendant was shown, where there was evidence that the draw-head was sunk four inches, and that the defect was old and plaintiff did not know of it.</p> <p>2. Evidence—Expert Testimony.</p> <p>In such case expert testimony of a yard-master that the method of coupling adopted hy plaintiff was careless, dangerous, and not the usual or best way of coupling, was properly excluded.</p> <p>8. Master and Servant-Negligence of Servant.</p> <p>The defendant introduced in evidence certain rules adopted by it in relation to the coupling of cars, prohibiting the use of the hands for such purpose, and ordering the use of a stick or pin. The superintendent of defendant testified that such rules were in use when plaintiff was injured, but could not testify that they had been sent to the “heads of the management of the yards ” where the accident happened. Plaintiff testified that no such rules were enforced in the yards while lie was there, and he knew nothing about them. Held, that it was for the jury to decide whether plaintiff was bound by such rules, and that they were known to him and violated by him.</p>

<p>1. Patents for Inventions—Practice—Rehearing.</p> <p>In an action for the infringement of a patent, an unusually full and explicit notice was given that a disclaimer would in certain contingencies be insisted upon. It was suggested by the proof, and on the hearing complainant even went so far as to suggest the form of the disclaimer. It was never intimated that the record did not sufficiently present the question. Held, that a rehearing would not be granted defendants to enable them to take additional testimony and contest the complainant's right to file a disclaimer upon grounds not mentioned at the trial.</p> <p>2. Same.</p> <p>A rehearing was also asked for on the ground that the court erred in holding that the patent, as limited by the disclaimer, disclosed invention, for the reason that the patented device had no advantage over similar devices produced by other means. Several affidavits were presented, none of which stated any new facts except one, and that was controverted by two affidavits produced by complainant. Held that, in view of the conflict, and of the facts that the point had been carefully considered on the trial, and that defendants strenuously insisted on the right to use complainant’s structures, a rehearing would be denied.</p>

In Equity. The Southern White Lead Company filed a bill to enjoin W. A. Coit and others from using the words “ St. Louis,” with the words “warranted strictly pure white lead in pure linseed oil,” to designate lead which was not pure, made in Chicago.

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

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

In Admiralty. Action by Charles W. Boyes and others, to recover salvage compensation for services rendered, against the bark Marie and the barge Newtown and her cargo.

<p>Mat.va'-.k -Compensation.</p> <p>The steam-ship L., worth §800,000, and having cargo valued at §750,000 aboard, soon after her arrival from sea, in New York bay, caught fire. The steam-boat 11. was employed by the agents of the steam-ship in New York to go to her aid.' At the’ same time the AL, a steam-tug, valued at, §25,000, which was lowing near the place where the steam ship was lying, abandoned her tow, went to the L., and began to pump water into her. The steamer was then beached, and in the course of-an hour and a half the fire was extinguished. After this the Al. went to New York to procure a suction-pump. with which she returned and pumped out the steamer. The latter was not seriously damaged. The fire was in an iron compartment, far removed from the cargo, and would probably have been confined to that, compartment without the aid of the M. The owners of the steamer paid tho H. §4,000. Held, that the AÍ. should recover §4,500 as salvage.</p>

In Admiralty. Appeal from district court. 34 Fed. Rep. 71. (1) The Martello is a British steam-ship of 2,439 tons net register, 370 feet in length, 43 feet beam, and 28 feet in depth, owned by the respondents and appellants, Charles Henry Wilson and Arthur Wilson, and is one of the Wilson Line of steamers plying between New York and Hull, and other foreign ports.

<p>Collision—Vessel at Anchor—Lights.</p> <p>The steam-tug Q. had taken a tow up Hunter’s Point creek, and, having landed it in a proper place on the shore, was lying along-side the tow, stern down the creek, without lights, and with over 100 feet of clear water outside of her. In the early morning the tug M. came up the creek and ran into the Q., doing the damage sued for. The M. claimed that the absence of lights on the Q. was the cause of the collision. Held, that under the circumstances the Q. was not required to have a light, and the M. was responsible for the collision.</p>

In Admiralty. Cross-libels for damages by collision. The steam-ship Breakwater was coming into the North river from sea, and as she approached her dock hauled in somewhat to the New York piers. The tide was ebb, and a strong north-west wind was blowing. When the Breakwater was still several piers below the Pavonia ferry-slip, the ferry-boat Pavonia was seen coming out of ber slip on the New York shore.

In Admiralty. On appeal from the district court, 36 Fed. Rep. 566. In the circuit court new evidence was introduced to show that libelant only wore a mate’s uniform when visitors were around, and that when he left he did not apply for extra wages.

<p>Contract— Kvidbncb.</p> <p>Complainant alleged that lie entered into an oral agreement with defen* ants to purchase certain mortgage railroad bonds, to lie used in purchasing the roads on foreclosure, defendants to furnish the requisite funds, and complainant to furnish information and assistance. He and a third person, who did not appear to be interested, testified that the contract was made as alleged. while one defendant denied it, the other defendant having died before his testimony could be had. It appeared that at the time of making the alleged contract, complainant was receiver of the property of one of the roads, and general manager, under the company, of the other road. He was past (50 years of age, of good reputation, and highly respected. A large amount of money would be required to purchase the bonds, none of which, he alleged, was he to furnish; and. as bearing on defendants’ reasons for making him an equal partner, claimed that ho first origiuated and suggested the scheme to them, but defendants showed by unsuspected evidence that the scheme had been suggested to them about two years before. Complainant did not show that he had any information on tiro subject not known to the public. He and his witness testified that defendants said that they were anxious to have him interested because of the great change in the road since he had taken possession thereof, but it appeared that he knew that defendants wore negotiating for a purchase of the bonds very soon after he look possession; and his testimony and that of his witness was inconsistent in other respects. Defendants purchased the honda after two years’ correspondence, none ol which showed that complainant had any interest, and the persons with whom the negotiations were carried on did not suspect that he was interested, and his only knowledge of the negotiations was derived from the agents of the bondholders. After the purchase of the bonds, and before foreclosure, defendants, wishing complainant's assistance as receiver, in working one of the roads, which ho was slow to give, applied to the persons from whom they purchased the bonds to urge him to take action. Meanwhile he wrote letter? entirely inconsistent with his claim to be a partner of defendants. It also appeared that shortly after assuming control of the road, and at a time when, as he testified, he proposed to enter into the contract with defendants, he canceled contracts winch one of the defendants held with the roads, and which were very advantageous to defendants and prejudicial to the road. Held, that the evidence did not show that the contract had ever been made.</p>

In Equity. Bill for an accounting. On the 29th of August, 1878, the complainant and one Crandall entered into a contract with the defendant, the provisions of which, material to an understanding of the caso, are these: “(1) 3?or the consideration and upon the conditions hereinafter expressed, said E. agrees to sell and license said C. & C. to cut and make into hoops and remove from his land * * * the black ash trees suitable for racked hoops; said timber to be all cut,…

<p>In Equity. For former report, see 34 Fed. Eep. 368»</p>

<p>1. Quieting Title—Fraudulent Judgment at Law.</p> <p>A bill in equity to establish a title acquired by purchase at an execution sale under a judgment by default in complainant’s favor will not be entertained where the proof shows that the debt on which the judgment was obtained had been fully paid before the commencement of the action.</p> <p>9. Same—Unconscionable Sale under Execution.</p> <p>It is an additional reason for dismissing such a bill that the execution, which was for but $1,000, was levied upon two separate parcels of land, worth in the aggregate $25,000, and both parcels sold together and bid in by complainant for the amount of the judgment.</p>

<p>1. Post-Office—Postmaster—Adjustment of Account.</p> <p>Where the quarterly returns of a postmaster, in wbicb are reported receipts-for sale of stamps, etc., and amount of commission claimed for cancellation of stamps, have been regularly rendered to the department, and have been passed upon by the auditor, and the balances therein found to be due the government have been each quarter carried into a general account, held, that, such action by the auditor is a complete allowance of the commissions claimed, and adjustment of such quarterly returns.</p> <p>2. Same—Withholding Commission.</p> <p>Where the credits on the general account kept by the auditor against the-postmaster, and made up as above stated, show that the postmaster has fully paid all balances so charged, so that a complete balance could be struck upon such general account, held, that in such case there is a complete settlement of' the account, and that thereafter the commissions covered by such adjusted accounts were not within the power of allowance by the postmaster general, so as to give him the right to “withhold” the same within the meaning of the act of congress of June 17, 1878, (20 St. at Large 140.) There was nothing to-“withhold.”</p> <p>8. Same—Balance Shown—Prima Facie Evidence.</p> <p>If the postmaster general, in the exercise of the power conferred upon him-by the act of June 17, 1878, before the allowance of credit for commissions is made, directs that it shall not be made, and it is not made, but in lieu thereof credit is given on the account kept with the postmaster for the amount of the allowance deemed reasonable by the postmaster general, the balance shown due the government by such an account would be prima facie sufficient, but: not conclusive evidence against the postmaster.</p> <p>4. Same—Charges of Fraud.</p> <p>Where an account of a postmaster, regular on its face, has been adjusted and1 allowed by the proper accounting officers, and fully paid, such officers cannot,, after the term of office of the postmaster has expired, evolve ex parte a balance in favor of the government, founded solely upon a general and vague allegation of fraud in accounts formerly passed upon, so as to make such balance prima facie evidence against the postmaster and his sureties. Such allegations must be specific, and sustained by competent evidence.</p> <p> {Syllabus by the Court.) </p>

In Equity. Bill for injunction. Bill in equity by Edwin Norton and others against.William H. Cary and others, to restrain the infringement of certain patents.

<p>Patents for Inventions—Invention—Steam-Engine Governors.</p> <p>Letters patent No 801,720, granted July 8, 1884, to Albert L. Ide, for a “steam-engine governor,” describe, “in a fly-wheel governor, the combination, with relatively movable parts, of a dash-pot. ” Governors similar in arrangement of parts with dash-pots were used as early as 1880 and 1881 in Brooklyn, and Thompsonville, Conn., but they were attached to the driving ' shafts, instead of to the fly-wheel, as described in the patent. Held that, as no new function was obtained by combining the governor and the fly-wheel, the change did not involve invention, and that the patent was void.</p>

<p>Patents for Inventions—Invention.</p> <p>Where a welt of a double piece of leather, inserted in a seam in such manner that the edges come on the inside so as to require no trimming on the outside, the welt presenting a rounded appearance, has been for years used in gentlemen’s and ladies’ saddles, in leather cushions, horse collars, leather hags, satchels, hand hags, ladies’ reticules of various kinds, and in the uppers of boots and shoes, it requires do invention to transfer the same kind of welt to gloves. This is but a double use for analogous and similar purposes, and is not patentable.</p> <p> (Syllabus by the Court.) </p>

<p>Patents for Inventions—Infringements.</p> <p>Letters patent No. 814,170, issued March 17, 1885, to John P. Eastman, for a continuous mileage railroad ticket, claims-a ticket consisting of “leaves or sheets bound together in book form, each having a number of mileage coupons, the leaves being connected at alternate ends for tearing off in a single piece the required number of single coupons for mileage traveled.” The original application did notcontain the words “bound together in book form,” but it was withdrawn, and another substituted, modified by the insertion of those words, and the patent was granted accordingly. The specifications described the sheets as being disconnected at the sides, but connected at the ends, and as having sufficient margin on the side for binding them into book or other convenient form. Defendant used a continuous ticket, consisting of coupons of one mile each, printed on a continuous strip of paper, one end being fastened to the lids of the cover, and the strip then being laid in alternate folds, like a pocket map. The lids of the cover were joined at the back, and closed by an elastic band, so that the strip might be drawn out and coupons cut off on a metallic edge attached to the end of a lid. Held, that the first-named patent was limited to a ticket bound in book form, and was not infringed by merely attaching one end of the strip to the cover.</p>

<p>In Equity.</p> <p>Bill by Gordon McKay, trustee, to recover license fees for use of a patented machine from Frank W. Smith and others.</p>

In Admiralty. On appeal from district court. 37 Fed. Rep. 696, 702. The Kobbe, after a voyage from Portland, Me., to South America, and return to Providence, R. I., was repaired at Jersey City for another South American voyage, and started for Pensacola to receive her outward cargo, calling at Mobile to deliver a Mobile cargo taken on at New York.

<p>1. Shipping—Damage to Freight.</p> <p>A bill of lading exempting the vessel owners from liability for “damage done by vermin” does not exonerate them from responsibility for injuries by rats, resulting from their negligence in omitting_ to fumigate the ship before loading, and the burden of proving that the injuries were not the result of such-negligence is on the owners.</p> <p>2. Same.</p> <p>Nor will a further clause, exempting the owners from liability for any fault of the officers or crew in the management of the ship, relieve them, as only mismanagement while the goods are on board is intended to be covered thereby, and not negligence occurring before the freight is placed in the custody of the master and mariners.</p> <p>8. Same—Reshipment.</p> <p>It is immaterial that the bill of lading was executed before the neglect to fumigate the ship occurred, or that it was executed upon the delivery of the goods to a vessel other than the one in which the damage occurred; it being contemplated by the bill of lading that the goods should be transhipped in a different vessel from that in which the voyage began.</p>

<p>At Law. Motion to stay proceedings and strike the case from the calendar.</p> <p>The steamer Julia was a duly enrolled and licensed vessel, under the laws of the United States, for the coasting trade, and was employed, in connection with the railroad of the Southern Pacific Company, as a part of its continuous line of overland transportation between the stale of California and other states, in the business of commerce and navigation, and in navigating between Vallejo Junction, in the county of Contra Costa, across the straits of Carquinez, to South Vallejo, in Solano county, in the state of California, upon tide waters, and within the admiralty jurisdiction of the United States. On February 27, 1888, as she was leaving her dock at South Vallejo for Vallejo Junction, with a considerable number of passengers, but without cargo, her boilers exploded, in consequence of which about 80 passengers lost their lives, and 8 others were injured, and the steamer was so largely damaged that she was beached at South Vallejo. The Central Pacific Railroad Company as owner, and the Southern Pacific Company as lessee, in pursuance of admiralty rule 54, thereupon filed a petition in the United States district court for the Northern district of California, staling the foregoing and other necessary fads; that suits were about to be commenced against them by the heirs and representatives of the parties killed, and by parties injured, for sums largely in excess of the value of the interest of the petitioners in the vessel and freight; and prayed that they might be declared entitled to the benefit of the act of congress as expressed in sections 4288, 4284, and 4285 of the Revised Statutes of the United States, and of an act passed June 26, 1884, and particularly section 18 of said act; also the benefit of section 4289, Rev. St., as amended by an act passed June 19, 1886. They also asked that they might be permitted to convey all their interest in said steamer and freight to a trustee to be named by the court, for the benefit of the parties injured, and the heirs and representatives of .those killed, and that they might be discharged from further liability in the premises. The court rendered a decree appointing a trustee, and authorizing a conveyance for the benefit of the heirs of those killed and the parties injured, and the conveyance was made in pursuance of the order. After the filing of the said petition the plaintiff commenced this suit to recover $50,000 for injuries alleged to have been sustained by the explosion on said steamer Julia; whereupon the defendant presented to this court a certified copy of the petition, and said decree of the district court, entered thereon, and on affidavits stating the facts, moved that the proceedings in this ease be suspended, and the case stricken from the calendar.</p>

In Admiralty. Actions by James Ellis and others, Jonathan H. Wells and others, as owners and crew of the steam-tug Alice E. Crew, and Alison Briggs and others, and Charles W. Boyes and others, as owners of the steam-tugs Arrow and Excelsior against the bark Avoca, to recover salvage compensation for services rendered in extinguishing and protecting from fire.

In Admiralty. Action by Jeremiah Sullivan and others against the British ship Van-loo, to recover salvage compensation for services rendered in extinguishing a fire therein by the water-boat Nelly.

<p>1. Salvage—Fees of Marshal.</p> <p>A vessel was libeled for salvage, but the warrant of arrest remained in the-clerk’s office, and was never given to the marshal. The parties stipulated -that the vessel should remain in her owners’ possession. The bond was neither taken in the marshal’s name, nor delivered to him. After a decree for salvage was rendered, the claim was paid without sale, no money passing through the marshal’s hands. Rev. St. TJ. S. § 839, provides for a commission to the marshal for sales in admiralty proceedings, which shall be reduced when the claim is settled without a sale. Held, that the marshal should receive the reduced commission which is given him as compensation for the loss of his opportunity to earn fees by a sale of the property, and not as a compensation for services.</p> <p>3. Same—Clerk’s Fees.</p> <p>But the clerk, under section 838, giving him a commission for “receiving, keeping, and paying out money” in pursuance of any order of court, of a given per cent, of the amount “received, kept, and paid, ” is not entitled, to-any compensation.</p>

<p>1. Collision—Crossing Course.</p> <p>The lighter A. was going up the East river along the Brooklyn piers, and the water-boat C. was crossing the river from New York to Brooklyn, and had the A. on her starboard hand. The C. blew two whistles twice without receiving a reply. To her third signal of two blasts the A. replied with two. The C. thereupon starboarded hard and opened her engine in an endeavor to cross the A.’s bows, and the latter ported. The vessels came together and the C. was sunk. Held, that the C., being bound to avoid the A., took upon herself the risk of an attempt to cross the latter’s bows, and could not recover.</p> <p>2. Same—Signals.</p> <p>When a boat, bound by rule to avoid another, signals that she is going to cross the latter’s bows, an assenting signal by the boat having the right of way is merely an announcement to the other that her intention is known. It gives her no immunity from the responsibility cast upon hér by law, and constitutes no fault in the event of subsequent collision.</p>

<p>In Admiralty.</p> <p>Action by Frank H. Chappell to recover damages caused by collision.</p>

<p>Motion to Remand.</p> <p>Action by William H. Tedian against the First National Bank of Auburn and Frank M. Hayes, receiver of said bank, to have certain indebtedness due plaintiff' as administrator, by said bank, applied to the payment of notes held by the hank against him. It was removed from the supreme court of Now York by defendants on the ground that a federal question was involved, it being contended that Rev. St. U. S. §§ 5234, 5236, 5242, were drawn in question. These sections refer to the appointment by the comptroller of the treasury of a receiver to take possession and administer the assets of an insolvent national bank, and the distribution of the funds among the creditors. They also avoid all transfer^ and assignments, etc., made by the bank with a view of preferring creditors.</p>

<p>On Motion to Strike a Petition for Removal from the Files.</p>

<p>X. Removal of Causes—Into what District.</p> <p>Under act Cong. Aug. 13, 1888, giving the circuit courts of the United States jurisdiction of controversies between citizens of different states, and providing that an action by original process shall be brought only in the district of which the defendant is an inhabitant, except where the only ground of jurisdiction is that of diverse citizenship, in which case actions shall be brought in the district of the residence of either plaintiff or defendant, and further providing for the removal of such actions into the circuit court for the proper district, at the instance of defendant, an action brought by a citizen and resident of the Bastera district of Texas against a citizen of another state, in a state court in the Western district, is removable to the circuit court of the latter district.</p> <p>S. Same—Time of Application.</p> <p>Section 3 of the act mentioned, requiring a petition for removal to be filed before defendant is compelled to plead to the action under the state practice, is complied with by the timely filing of the petition, though it is not actually presented to the court until after the expiration of the time to plead.1</p> <p>8. Same—Bond.</p> <p>When special bail is not originally demandable in an action, the removal bond need not contain a condition for the entry of the defendant’s appearance in the federal court, though he has not yet entered such appearance in the state court, as the act mentioned only requires that condition when special bail may originally be demanded.</p>

<p>1. Equity—Exceptions to Master’s Report.</p> <p>Exceptions to the report, of a master in chancery a,re to he regarded so far only as they are supported by the special statements of the master, or by evidence brought before the court by a reference to tbe particular testimony on which the exceptor relies. 0</p> <p>2. Same—Reassignment.</p> <p>Where an exception is general, and the court is thereby called upon to review the entire mass of testimony, and to perform the duties which properly belong to the master and to counsel, it is not required to make the effort to do so, and may overrule the exception. Where, however, a reassignment of the hearing can be made without prejudice to the interests of the parties and the business of the court, it is discretionary to grant time and leave to amend the exceptions.</p> <p> (Syllabus by the Court.) </p>

<p>1. Lis Pendens—When Appltcaisle.</p> <p>Pendency of a former suit in a state court, brought by the mortgagors against the trustee in a deed of trust and others, to restrain the trustees from selling the mortgaged property under a power of sale in the mortgage, is no defense to a suit to foreclose the mortgage in a federal court, where the parties are not identical.</p> <p>2. Same.</p> <p>Although complainants in the suit in the federal court, who are defendants in the suit in the state court, might, by the state practice, file a cross-bill praying foreclosure, they are not bound to do so where they are non-residents, hut may bring' suit in the federal court.</p> <p>8. Same-State and Federal Courts.</p> <p>Pendency of a former suit in a state court is no defense to a suit of the same nature, and between the same parties, brought in the federal court.</p> <p>4. Same—Pleading.</p> <p>The defense of lis pendens, in equity, must be made by plea, and not by answer.</p> <p>5. Deed—Acknowledgment—Evidence.</p> <p>A notary’s certificate, attached to the deed of a married woman, that she acknowledged, separate and apart from her husband, that she executed it of her own free will, was corroborated by the notary. There was no evidence of fraud or duress. Defendants, who were vitally interested, and another witness, who was disinterested, but whom the notary denied was present, impeached the certificate. Defendants gave no other evidence than their and his own statements that such disinterested witness was present. The testimony of all the witnesses was taken six years after the execution of the deod, and all testified with great minuteness of detail. Held, that the evidence was not sufficiently clear and convincing to overcome the certificate.</p>

<p>1. Foreign Executor—Bight to Sue.</p> <p>An executor appointed in another state has not, as such, in New York, any authority to prosecute a suit at law or in equity.1</p> <p>2. Same—When Objection can be Raised.</p> <p>Where a bill sets forth affirmatively, as the foundation of the right to sue, the granting of letters of administration in another state, and nothing_ else, and the answer puts it in issue, the right of plaintiff to sue is not admitted, and defendant can raise such objection at the hearing on the merits.</p> <p>8. Equity—Complete Remedy at Law.</p> <p>Where plaintiff declares in his bill that he is entitled to recover an exact, sum, and asks no discovery, and shows that no accounting is necessary under the direction of the court, he shows that he has a complete remedy at law, and the court will order the bill dismissed sua oponte,</p>

At Law. Action for damages. Edward Graham sued the Pennsylvania Railroad Company to recover ■damages for personal injuries. Plaintiff, while leaving defendant’s ferryboat by the middle gangway, had his leg broken by the guard-chain being thrown against it by a deck-hand. Judgment directed for defendant on its motion.

<p>1. Jailers—Custody of Unwed Status Prisoners.</p> <p>For tlie purpose of safely keeping, properly earing for, and humanely treating prisoners committed to his custody by a court of the United States, a keeper of a county jail of a state, who receives such prisoners, and is paid for their maintenance, is an officer of the United States court.</p> <p>8. Same—Punishment of Prisoner—Contempt—Jurisdiction.</p> <p>As such officer of the court, to which he is immediately related, aD d as it affects United States prisoners so committed and received into his custody, the jailer may be punished by attachment for contempt for inflicting a cruel or unusual punishment on such prisoners.</p> <p>8. Same-Churl and Unusual Punishment—What Amounts to.</p> <p>It is cruel and unusual as disciplinary punishment, and unwarranted bylaw, to chain a prisoner by the neck with a trace chain and padlock so that he can neither lie down nor sit down, and leave him so chained in darkness alone for several hours of the night; and it is the duty of the court by appropriate action to protect prisoners from such arbitrary oppression.</p> <p> (Syllabus by the Court.) </p>

<p>1, Obstructing Justice—Intimidating Witness.</p> <p>Defendant is guilty of violating Eev. St. II. S. § 5399, providing a punishment for intimidating a witness by throats, etc., when he boats one summoned as a witness before a United States commissioner for the, purpose of intimidating or influencing him in giving his testimony.</p> <p>S. Same.</p> <p>Where defendant, not knowing that one C. is a witness in a case in which defendant's father is summoned as a witness, threatens and beats C. on account'of insulting language used by him concerning his father in connection, with the case, the beating having no relation to the character of C. as a witness, he is not guilty of a violation of section 5399.</p>

<p>Indictment for Selling Liquor without Payment of Special Tax.</p>

<p>Patents foe Inventions—Prior Condition of Art.</p> <p>In view of the prior use of detachable blocks notched at the end and under the edge for spreading hammocks, there is no invention in the second claim of letters patent granted to Travers November 18, 1819, in “the novel use of detachable notched distending blocks” in improved hammocks.</p>

<p>1. Patents for Inventions—Anticipation.</p> <p>Letters patent No. 323,430, for improvements in buttons consisting in an open central bore for use with spring studs, though all the elements, separately considered, are found in prior patents for ordinary buttons, are valid, the combination being new, and producing an improved result.</p> <p>2. Same—Infringement.</p> <p>Such patent is infringed by a fastener in which the cap is set by pressing down the edges so as to do away with the filling for the cap, as described in the patent, the fastener being the same with some slight changes in construction.</p>

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

<p>At Law. Action for infringement of letters patent.</p>

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

<p>In Equity. Application for assessment of damages for infringement of patent.</p>

<p>1. Patents for Intention—Injunction.</p> <p>Reissued letters patent No. 10,418, dated December 4,1883, issued to A. Russell and Curtis for improvement in ships’ pumps, claimed as the principal improvement a barrel whose length was less than its diameter, making it easily lined. Defendant’s pump had a barrel whose length was considerably in excess of its diameter. Held, that the absence of this marked feature throws so much doubt on the question of infringement that a preliminary injunction will not be granted.</p> <p>2. Same.</p> <p>Neither will it be granted where another claim is for a bucket externally dome-shaped, that is, having the form of an inverted cup, where defendant’s bucket is not dome-shaped, and-differs in other particulars.</p>

In Admiralty. On motion to dismiss libel. Action by Bridget Welsh, widow of Peter Welsh, on her own behalf and that of her minor children, Mary Welsh and Bartholomew Welsh, against the steam-ship North Cambria, for damages resulting from the injury and loss by death of Peter Welsh while unloading the cargo of the vessel.

<p>Shipping—Violation op Passenger Act.</p> <p>On the evidence in this ease the court found that the steam-boat Columbia, during- an excursion trip from New York to Rockaway, on Sunday, July 17, 1888, carried 777 passengers in excess of the number allowed her bylaw; but, as the libel only charged an excess of 677, and limited the demand to $7,108, and no application was made to amend the libel, held, that the steam-boat was liable to a penalty of $10.50 for each of 677 passengers carried, or $7,108.</p>

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

<p>1. Seamen—Wages—Assault by Mate.</p> <p>An assault and battery, committed by the mate upon a seaman, without cause, justified the latter in leaving the vessel before the expiration of the voyage for which he signed articles.</p> <p>2. Same.</p> <p>The vessel is not liable to such seaman for wages, board, medical services, and railroad fare, after invitation by the master, in good faith, to return to the vessel, and an oiler to stand between him and harm.</p>

<p>At Law. On motion to remand.</p>

<p>1. Removal of Causes—Case Arising under United States Statute—Petition.</p> <p>In order to remove a cause from a state to a United States court, under the act of 1887, on the ground that it arises under a statute of the United States, the record must affirmatively show, from the facts alleged, that some disputed construction of the statute will arise for decision in the case.</p> <p>2. Same.</p> <p>Where the contest is about the facts only, the law being undisputed, there can be no removal.</p> <p>8. Same—Time of Application—Subsequent Extension of Time to Plead.</p> <p>The application for removal, under the act of 1887, must be made at or before the expiration of the time to answer, as prescribed by the statute or rules of court-in force at the time of the service of the summons. Subsequent extensions of time to answer by special orders of the court, or by stipulations of the parties, cannot extend the time to apply for a removal under the statute.</p> <p>4. Same—Time to File Bond.</p> <p>The bond required by the statute, as well as a petition, must be filed at or before the time for answering expires, to effect a removal.</p> <p>5. Same—Filing Nunc pro Tunc.</p> <p>The court cannot, by an order made after the time to answer has expiied, directing the bond to be filed nunc pro tunc as of a day prior to such expiration of time, cut off the right of the plaintiff to remain in the state court, which has already become vested and fixed under the statute.</p> <p> (Syllabus by the C.ourt.) </p>

<p>Removal of Causes—Act of 1876—Time of Removal.</p> <p>Under the removal act of 1875 a case cannot be removed after the term at which it could have been first tried in the state court, and where counsel do not take the objection it is the duty of the court to do so.</p>

<p>Constitutional Law—Regulation of Commerce—Meat Inspection Law.</p> <p>Act Minn. April 16, 1889, prohibiting the sale within the state of dressed meat, unless the animal within 24 hours before slaughter was inspected by state officers and found healthy and suitable for food, having the effect of excluding dressed meat from animals slaughtered outside the state, is unconstitutional as usurping the power of congress to regulate interstate commerce, and abridging the privileges and immunities of citizens of other states.</p>

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

<p>1. Constitutional Law—Local and Special Laws.</p> <p>Act Ohio Jan. 22, 1889, which is equally applicable to all cities of a certain class, is not unconstitutional as a special act because there may be but one city of that class.</p> <p>2. Same—Taxation—Public Purposes.</p> <p>The fact that the act authorizes the issuing of bonds for the purpose of supplying municipal corporations and their citizens with natural gas does not render it unconstitutional as exercising the power of taxation for a private purpose.</p> <p>8. Injunction—Against Municipal Corporation.</p> <p>Injunction will not lie against the issuing of such bonds on the ground that taxation will have to be resorted to for their payment, when the act provides that the revenue derived from the sale of gas is to be applied to the payment of the principal and interest of said bonds.</p>

<p>At Law. Action of ejectment.</p>

In Equity. Bill by Fisher, Parker & Co. and others to set aside two conveyances made by Bernard Moog, one to his half-brother Aaron Moog and one to bis son-in-law Isadore Strauss, as made in fraud of creditors.

<p>At Law. Action for slander by Frederick Broughton against William McGrew.</p>

<p>1. Practice in Civil Cases—Nunc Pro Tunc Order.</p> <p>An application by respondents for a mona pro tuno order dismissing complainant’s petition to vacate a decree made in 1878, and for a rehearing, the application being based on an alleged action or opinion taken or expressed by the circuit judge by whom the petition was heard in 1884, will be refused where there was no final decision or judgment rendered, and no official record on which to base such an order, and nothing but the recollection of witnesses as to what the judge said about the case when not presiding in the court where the cause was pending.</p> <p>2. Bill of Review—Grounds.</p> <p>An application for a bill of review -will not be granted where no actual fraud is set up, and the affidavits on which the application is based show that no fraud in fact was practiced in obtaining the decree, and no error of law apparent on the face of the decree is either set up or relied on.</p> <p>8. Same—New Matter.</p> <p>A change by the supreme court of its ruling on a question of law and fact does not constitute such new matter as will sustain a bill of review to vacate a decree of the circuit court pronounced before such change was made.</p> <p>4. Same.</p> <p>Neither will abill of review be granted because the case was decided in the absence of counsel, where the means of knowledge as to the time of hearing was within reach of counsel, and no effort was made to deceive him by the opposite party, though the petitioner may have been misled by the negligence or misinformation received from his counsel, or of those to whom the counsel had intrusted the business.</p> <p>6. Same—Laches.</p> <p>An application for a bill of review, made in 1889, on facts known by petitioners in 1881, comes too late, even if the facts constituted a good ground for relief.</p>

<p>1. Principal and Agent—Banks and Banking—Collections.</p> <p>The F. Bank offered to “collect at par” all paper sent it by complainant, “and remit” on specified dates. ” Complainant accepted the offer on a letterhead containing the printed words: "For collection,-; for credit,-. ” All paper sent under this agreement, was, at the suggestion of the F. Bank, indorsed, “Pay F Bank for collection-, for” complainant. The F. Bank thereafter wrote to complainant that “ we collect at par, and include in our remittances everything collected to date. ” All paper sent by complainant was charged on its books to the F. Bank, “cash items” on transmission, and “time items” on their collection by the F. Bank, on whose books like credit entries to complainant were made. While complainant’s cashier testified that in making such charges he understood that the F. Bank became indebted to complainant, he also stated that it was not intended to transfer the paper to or open a deposit account with the F. Bank. Held, that the relation between the F. Bank and complainant as to paper sent by the latter was that of principal and agent, and not that of creditor and debtor.</p> <p>2. Same.</p> <p>Such relation also continued as to proceeds of such paper collected by the F. Bank.</p> <p>8. Trusts—Identification of Trust Funds.</p> <p>Complainant can recover on the ground of a trust, from a receiver of the F. Bank, which has failed, such portion only of the proceeds of its payer sent to the F. Bank as it shows has passed into the receiver’s hands either in its original or some substituted form.</p>

<p>At Law. Action to recover land.</p>

<p>On indictment for perjury.</p>

<p>In Equity, Bill to restrain infringement of letters patent.</p>

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

<p>1. Judgment—Res Adjudicata.</p> <p>In a third suit on letters patent, which have been assailed as invalid on account of prior public use, and have been twice sustained by the courts, the former decision will be followed where no new facts of a controlling character are introduced.</p> <p>2. Patents for Inventions—Infringement.</p> <p>Letters patent No. 147,288, dated February 10,1874. and granted to Simonds and Emery for improvements in machinery for moulding counters for boots and shoes, claimed a combination of a divided mould and cams, which moulded the heel-counter by a pressure nearly at right angles to the surface of the leather, lie Id infringed by a machine made under a patent granted November 6, 1888, to G. A. Knox, by which the counter is pressed into shape by pressure nearly at right angles, by a spring-mould which is not divided, but is substantially the same as that of Simonds and Emery.</p>

<p>1. Shipping—Charter-Party—Public Policy.</p> <p>A stipulation in a charter-party that “all disputes * * * arising on this charter-party, or on bills of lading signed thereunder, shall be settled at port of discharge only, ” is contrary to public policy, and void.</p> <p>2. Admiralty—Pleading.</p> <p>A hearing on an exception to a libel must be determined on the pleadings, and an affidavit on behalf of respondents cannot be considered.</p>

<p>On Motion to Remand.</p>

<p>Federal Courts—Service on Non-Resident Defendants.</p> <p>Act Cong. 1875, § 8, provides that when in any suit, commenced in any federal circuit court, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more defendants are non-residents or cannot be found therein, or do not voluntarily appear, the court may make an order directing the absent defendants to appear. etc. Act 1887, amending the act of 1875, provides that “nothing in this act shall be hold, deemed, or construed to repeal or affect any jurisdiction or right * mentioned in section eight of the act * * * of which this act is an amendment. ” Held, that an action by an alien bondholder of a railroad company to restrain the trustee in a mortgage securing the bonds from paying over to the company, in fraud of plaintiff’s rights, the proceeds of the sale of land which by the mortgage was set apart to create a sinking fund for the redemption of the bonds, was within the saving clause of the act of 1887, and when the action was commenced within the district of which the trustee was an inhabitant, and in which it had the fund, an order might issue to the company, a non-resident corporation, to appear and plead, etc.</p>

<p>1. Necessary Parties—Bailment.</p> <p>In a suit for the proceeds of a note, alleged to have been disposed of by one of the defendants in violation of a contract, by which he had agreed to hold it “subject to the joint order and direction” of the named attorneys of the adverse claimants of the note, the contract having been made on abandonment of an arbitrator’s award respecting the ownership of the note, such adverse claimants, and their respective attorneys, are necessary parties.</p> <p>2l Same.</p> <p>In such case the rights of one of such adverse claimants, who is beyond the jurisdiction of the court, are involved to such a degree that equity rule 47 and Rev. St. U. S. § 737, providing that where persons, otherwise necessary or proper parties, are beyond the jurisdiction of the court, the court may proceed to a decree not prejudicing the rights of such persons, without making them parties, are inapplicable, and no decree can be rendered until such adverse claimant is made a party.</p>

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

<p>Equity—Pleading—Amendments.</p> <p>Under Rev. St. U. S. § 904, giving the federal courts power to permit parties to amend pleadings at any time, on such conditions as they may prescribe, a motion by one defendant in equity to withdraw an answer and file the same plea as is filed by its co-dcfendant, will be granted when not made for the purpose of setting up a merely technical defense, nor after evidence has been taken, and it is probable that it will be more convenient to try the issue raised by the plea first, and where a replication has been filed to the co-defendant’s plea.</p>

<p>Equity—Answer—Dismissal.</p> <p>Where an answer to a bill in equity completely denies all its equities, and complainant has not met these denials with any proof, nor made any issue by replication, the bill will be dismissed.</p>

<p>Coiipoeattons—Actions by and against.</p> <p>Code Civil Proc. Cal. § 388, provides that “when two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name.” Held, that a bill to enjoin interference by defendants with complainant's alleged right to divert water from a stream, against the “South Fork & Sunnyside Division of the Santa Ana River.” which, it appears, is an association formed and existing pursuant to the laws of California, is sufficient, without making the owners and stockholders thereof parties.</p>

<p>In Equity. Creditor’s bill.</p>

<p>Municipal Corporations—Public Improvements—Injunction.</p> <p>Where the action of a city in executing a public work is within the scope of its authority, and free from fraud and corruption, it will not be enjoined, though the methods adopted result in special damage to complainant.</p>

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

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

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

<p>1. Specific Performance—Contract—Incumbrances.</p> <p>Plaintiffs filed a bill for tbe specific performance of a contract to purchase certain land on delivery to tbe defendant of an abstract of title showing the property to be free from all incumbrances, and alleged performance on their part. Defendant alleged that a railway had a right of way over the land for 20 years. Plaintiffs filed an amended complaint, alleging that defendant knew of such fact at the time the contract was made, and that the right of way enhanced the value of the property within the knowledge of both parties to the contract. Held, that a demurrer to the amended bill must be sustained on the ground that plaintiffs have sought therein to contradict and vary a written contract.</p> <p>2. Same.</p> <p>Such right of way is an incumbrance on the property.</p>

<p>In Equity. Bill to enforce a judgment.</p>

<p>At Law. Action to recover earnest money.</p>

At Law. Action to recover on policy of insurance. The facts agreed upon in this case are as follows: Defendant issued r policy of life insurance on the life of plaintiff’s husband, dated April 1, 1884. The premiums were payable semi-annually, on April and October 1st, in each year.

<p>1. Injuries on Railroad Tracks—Pleading.</p> <p>One who is injured a half mile distant from a crossing cannot assign the violation of Rev. St. Mo. § 806, requiring the ringing of bells and, sounding of whistles at railroad crossings, as the proximate cause of his injury.</p> <p>8. Same.</p> <p>An allegation that the train was running at a dangerous rate of speed, without showing the relation which that fact sustained to plaintiff’s injury, states no cause of action.</p> <p>8. Same.</p> <p>But where the petition further alleges that it was plaintiff’s duty as watchman to pass over a certain bridge; that it was the duty of all engineers in charge of locomotives to give timely warning of their approach to him by sounding the whistle and ringing the bell; but that on the occasion of the injury the engineer negligently failed to do his duty, whereby plaintiff was injured,—it is good on general demurrer.</p>

At Law. On motion for new trial. Action by Sarah A. Preble against Henry M. Bates and others, stockbrokers, for conversion of certain bonds alleged" to belong to plaintiff. Verdict for plaintiff, and defendants move for a new trial.

<p>1. Appeal—JJfb'ect—Supersedeas.</p> <p>Where a bill to modify the method of collecting a judgment which was not stayed bv giving a supersedeas hond, as allowed by statute, was dismissed, and no interlocutory order affecting such judgment was ever made in the proceeding on the bill, a supersedeas bond upon appeal from such dismissal only stays any orders made in the proceeding on such hill, and does not operate to restrain the collection of the original judgment, even though the proceeding on the bill be deemed a mere continuation of the original action.</p> <p>£. Judgment—Injunction to Restrain— Coi,lection.</p> <p>Where the original judgment has stood for eight years, and the debtor admits the justice thereof, merely seeking to change the method of collecting it, its collection will not be restrained pending the appeal from the dismissal of tbe bill.</p>

At Law. Action to recover customs duties. The plaintiff, Joseph D. McNab, imported linen twine, which he claimed was subject to duty at 25 per cent, ad valorem, as “seine twine.” The collector classed the goods as “linen thread,” on which there was a duty of 40 per cent, ad valorem. Plaintiff paid the duty under protest, and appealed to the secretary of the treasury. The action of the collector being affirmed by the secretary, plaintiff brings this suit to recover the excess.

At Law. Action by Leon Mandel and others against Anthony F. Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them.

At Law. Action by tbe Anglo-American Portland Cement Company against Anthony I\ Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them.

<p>At Law. Action to recover additional duties on machinery.</p>

<p>1. Customs Duties—Ukloadixg Cargo without Permit — Vessel Driven Ashore.</p> <p>A vessel which has been driven ashore by stress of weather has not “arrived” within the limits of the collection district, within the meaning of liev. St. ' J. S. § 2867, and the unlading of her cargo without authority of the customs officer does not subject it to forfeiture.</p> <p>2. Same—Failure to Give Notice.</p> <p>The failure to give notice of the contingency which makes such unlading necessary does not authorize a forfeiture of the cargo.</p> <p>8. Same—Forfeiture—Act of Trespasser.</p> <p>A forfeiture of goods for a violation of the revenue laws will not be imposed unless the owner of such goods or his agent has been guilty of an infraction of such laws. The act of a mere trespasser, or of one having no interest in the goods, will not have that effect.</p> <p> (Syllabus by the Court.) </p>

<p>1. Indictment—Form and Sufficiency.</p> <p>An indictment which states facts constituting an offense under a certain statute, and concludes with the averment that the acts alleged to have been committed were “contrary to the form of the statutes, ” is not objectionable because it also alleges that, defendant thereby committed a certain named crime, while the statute does not declare the offense it prohibits to be that crime, as the allegation is surplusage.</p> <p>2. Perjury—Naturalization Proceedings.</p> <p>Rev. St. IJ. S. § 5424, which makes it an offense for any person applying to become a citizen, or appearing as a witness for such person, to “falsely make, forge, or counterfeit any oath, ” etc., applies to written oaths, and not to false swearing in open court, in a naturalization proceeding by a witness for the applicant, as the latter offense is punishable exclusive^ under section 5385.</p> <p>3. Same.</p> <p>Rev. St. TJ. S. §5425, making any one guilty of a felony who “obtains, accepts, or receives any certificate of citizenship, known to such person to have been procured by fraud, ” applies to the acceptance of such a certificate obtained by fraud practiced on the court which issued it at the time thereof, and not simply to the acceptance of a fraudulent certificate outstanding in the Hands of third persons.</p> <p>4. Same—Indictment.</p> <p>An indictment for a violation of snch statute which describes the fraud charged by averring only that defendant obtained a certificate at a time when he was not legally entitled thereto, without describing the facts constituting the fraud, is had, though it avers that such acts are unknown to the grand jury.</p> <p>5. Same.</p> <p>A subsequent count in the indictment for “counseling and advising” the commission of the offense prohibited by section 5425, in violation of section 5427, which alleges that the fraud charged consisted in making a false statement to tile court granting the certificate, is sufficient.</p> <p>6. Same—Joinder op Counts.</p> <p>As the offense defined in section 5395, «., the taking of a false oath in naturalization proceedings, is a felony, counts under that section are properly joined with counts under sections 5425 and 5427.</p>

<p>Oiuminat, Law—Sentence—Commutation for Good Behaviob.</p> <p>Act Cong. March 3, 1875, provides that a United States prisoner confined in execution of any sentence in a prison of any state or territory, which has no system of coinmutation for its own prisoners, shall have a deduction of five days in each month in which no charge of misconduct shall he sustained against him. Rev. St. IT. S. § 5544, provides that in other cases such prisoner shall be entitled to the samo credits applicable to other prisoners. Held, that as act'Cal., amended March 14, 1881, provides l'or commutation for such prisoners only as are confined in the state-prisons for terms of one year and over, a United States prisoner sent to the county jail for six months is entitled to no credits for good behavior.</p>

<p>At Law. On demurrer to indictment.</p>

<p>In Equity. On demurrer to bill.</p> <p>The case made by the bill, and admitted by the demurrer, may be summarized as follows: The “Cigar-Makers’ International Union of America” is a voluntary, unincorporated association of practical cigar-makers, having many members, and was formed to promote the mental, moral, and physical welfare of its members, to assist them in obtaining remunerative wages, to extend pecuniary aid to members and their families in case of sickness or death, and generally to maintain a high standard of workmanship. In September, 1880, at a convention held by members of the union, a label was adopted to be placed on cigar boxes, for the purpose of designating cigars made by members of the union. The label is nothing more than a certificate printed on blue paper, and purporting to have been issued by authority of the union, to the effect that the cigars contained in the box to which it is affixed have been made by first-class workmen, members of the union, and not by “inferior rat-shop, cooly, prison, or tenement-house workmanship.” Ail members of the “Cigar-Makers’ International Union of America,” (and the membership is said to exceed 25,000) are allowed to affix the label to cigars made and sold by themselves, provided they do not employ others to make cigars. It is also the practice of the union to furnish the label gratuitously to all cigar manufacturers throughout the United States, who employ exclusively members of the union at an agreed schedule of wages. Complainant in this case is a member of the union, and for two years past has been making and selling cigars of his own manufacture in the city of New York, and in the course of his business has used (as he is entitled to) the union label aforesaid, and built up a profitable trade. The wages received by members of the union are about three dollars higher per thousand cigars than the wages received by other cigar-makers; and cigars bearing the union, label are worth in the market three dollars per thousand more than they would be w'orth without it, because in public estimation the label is a guaranty that the cigars bearing it have been made by competent workmen, in clean and healthy shops. By the use of the genuine label in question on cigars of his owm manufacture the complainant has made great profits, and the public has also been protected from purchasing inferior cigars. Since the adoption of the union label, and since complainant began to use the same, the defendants have conspired to cheat and defraud complainant and other members of the union, as well as the public, by making and selling and offering for sale counterfeit labels for cigar boxes. The label made and sold by defendants is a fac simile of the union label, and cannot fail to deceive. In furtherance of the scheme to defraud, defendants have adopted , a fictitious name under which they manufacture and sell the counterfeit label in question, and they also have their correspondence concerning the same sent to a false address in the city of St. Louis. whence it is forwarded to defendants’ real place of business. By making and selling such spurious and counterfeit labels to cigar manufacturers throughout the country, the public is deceived, and a great pecuniary loss is occasioned, which is borne by the complainant and other members of the union who, like him, manufacture and sell cigars, and make use of the genuine union label in the course of their business to enhance the value of their product and increase the demand therefor. Such, in brief, is the case made by the bill.</p>

At Law. On motion to strike out part of amended petition. For opinion on demurrer to petition, see 38 Fed. Rep. 28. For opinion on plea to jurisdiction, see 37 Fed. Rep. 726.

<p>In Equity. Hearing on plea.</p>

Ill Equity. Bill in equity by Thomas J. Jones and others against James B. Clow and others, for injunction and an accounting for infringement of patent for an “improvement in heating apparatus.”

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

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

In Equity. On.motion for preliminary injunction. Suit by the Peninsular Novelty Company against the American Shoe-Tip Company and others for the infringement of letters patent No. 293,-234, of February 12, 1884, to Charles H. Eggleston, for button-setting instrument, and No. 312,987, of February 24,1885, to Edward 0. Ely, for an improvement in button-setting machines.

<p>In Equity. Bill to restrain infringement of patent.</p>

<p>1. Patents for Inventions—Infringement.</p> <p>Complainant's patent. No. 188,363, issued March 18, 1877, to Andrew H. Shriffler, for an “improvement in corn-shelling machines,” the distinctive feature of which is a contrivance for the delivery of the corn in a horizontal direction from the elevator to the shelling mechanism, is not infringed by a feeding contrivance which delivers the corn immediately from the elevator to the shelling mechanism; both machines employing an endless apron to deliver the corn.</p> <p>8. Same—Novelty.</p> <p>A leg or brace attached to the lower end of the elevator and frame of the machine, to regulate the height of the elevator, is not patentable, for want of novelty.</p>

<p>Patents—Infringement—Preliminary Injunction.</p> <p>On bill for infringement of a patent, it appeared that the patent had never been adjudicated, and that many infringing devices existed. An averment in the moving papers that the patent had been recognized by the public was not supported by facts. The defense involved the validity of two patents. Defendant had invested large sums in business, with the knowledge of complainants, who were guilty of laches in asserting their rights. Defendant was amply responsible, and it appeared would suffer greater injury from a preliminary injunction than complainants would if it were refused. Held, that a preliminary injunction would not be granted, even though defendant did not cast serious doubt on the validity of complainants’ patent.</p>

<p>In Equity. On motion to stay injunction.</p> <p>Plaintiff obtained against the defendant the usual decree in patent cases for an injunction against further infringement, and a reference to a master to compute damages. Defendant moved to stay the issuing of the injunction upon the ground that plaintiff was not a manufacturer, but derived its profits from selling or licensing its machine, and that the damages to defendant by stopping his mill would be out of all proportion to the amount of plaintiff’s license, or to any damages that would be occasioned to it by defendant’s continued use of machines.</p>

<p>In Admiralty. Libel for damages for injuries sustained, and neglect and maltreatment thereafter.</p>

<p>In Admiralty. Libel for breach of charter-party.</p>

<p>In Admiralty. On libel for advances.</p>

<p>In Admiralty. Libel for damages caused by negligence of tug.</p>

Habeas Corpus. This is an application for the discharge of David Neagle upon a writ of habeas corpms. Held: the most important of which were that an officer of the United States, specially charged with a particular duty, that of protecting one of the justices of the supreme court of the United States while engaged in the performance of his duty, could not, for an act constituting the very performance of that duty, be taken from the further…

<p>1. Courts—Federal Jurisdiction—Suits by Assignees.</p> <p>Complainants, as the assignees of a judgment obtained in the state court by a citizen of the same state as the defendant in the judgment, sue in equity proceeding, by way of a creditors’ bill, to enforce said judgment against the insolvent debtor's property. Held, that the assignor could not have sued in original proceedings in this court, and that his assignees cannot do so, under the act of 1888.</p> <p>8. Creditors’ Bill—Adequate Remedy at Law.</p> <p>The allegations in the bill, and the evidence administered by complainants, show that the property which they seek to hold liable for their claims, other than that of the judgment mentioned, is the property, in law and in fact, of Cohn, thoir insolvent debtor; that title was taken in Mrs. Steinhardl’s name for a fraudulent purpose, and Cohn’s money paid for the property in question. Held that, if their allegations are true, they have an adequate remedy at law in an execution against the property, treating the sales to Mrs. Steinhardt as mere simulations; that no purpose is disclosed in the bill or evidence of complainants to present a cause for a revocatory action; that the pending suit is one in declaration of simulation, which involves title as between Cohn and Mrs. Steinhardt to the property sought to be subjected to Cohn’s debts, and cannot be heard in equity.</p> <p>(Syllabus by the Courtj</p>

<p>1. Virginia Coupons—Fines.</p> <p>Virginia coupons, which by law are receivable in payment of all debts, fines, duos, and demands of the slate, must be received in payment of a fine imposed by a criminal court of the state.</p> <p>3. Habeas Corpus—Jurisdiction.</p> <p>The federal courts have no jurisdiction to grant a habeas corpus upon petition alleging that the prisoner is held under the capias of a state court issued upon a judgment that has been vacated.</p>

<p>Patents for Inventions—Infringement—Accounting.</p> <p>Where a decree has been rendered in a suit for infringement of letters patent, awarding an injunction and an accounting, on a reference to a master to compute the damages, the question of the validity of the claims of complainant’s patent alleged to have been infringed cannot be considered.</p>

<p>In Admiralty. Libel for half pilotage for not accepting services of a pilot.</p>

<p>1. Pilots—Pobts.</p> <p>A vessel lying under tbe protection oí Point Fermin, which is a well-defined headland on tbe northerly side o£ tbe bay of San Pedro, will be held to be within that hay in the absence of any legally defined limits thereof.</p> <p>3. Same.</p> <p>Where it appears that such hay and the port of Wilmington have always been locally regarded as identical, and that congress, by legislation, has recognized ¡¿an Pedro as a port, and changed its name to that of the port of Wilmington, and referred to the hay as the bay of Wilmington, such bay will be held a port, within Pol. Code Cal. § 2430, providing for compensation to pilots at “ports, ” irrespective of its merits as a harbor.</p>

<p>1. Marine Insurance—Liability for General Average.</p> <p>The schooner S'., loaded with cargo on a voyage from Baltimore to Stoning-ton, having stranded, was rescued by salvors, and repaired at Philadelphia, where the losses were adjusted. On advice of the owners of the cargo, the insurers, though refusing to accept abandonment, assented to its conveyance to Providence, there being no sale for it at S., paying the extra price for additional carriage, and superintending the salo in the owners’ interest. The insurers alleged that the signature to the general average bond by their special agent was unauthorized. Held, that they were liable to the owners of the ¥., and that it was immaterial under the stipulation, except as to costs, whether the bond was taken to he that of the insurers or the owners of the cargo.</p> <p>2. Same—Basis of Contribution.</p> <p>As the voyage was completed at Providence, the sale of the cargo there, less the additional expenses, was rightly taken as a basis for contributing value.</p>

<p>1, Removal or Causes — Separable Controversy — Railroad Companies — Mechanics’ Liens.</p> <p>Rev. St. Mo. 1879, § 3206, whieh gives contractors and material-men a Heron a railroad for work and labor done and Tor materials furnished, provides that in suits by a subcontractor to enforce a lien it shall he optional with him to make or not to make the contractor a party defendant. When the contractor is made a party, the statute contemplates a personal judgment against him as in ordinary cases, with a conditional clause that, if sufficient property of his is not found, the residue he made out of the property charged. When he is not made a party, there is only a special finding- of the amount due, and a judgment that it be made out of the property charged. JfeJd, that when the contractors are made parties there are not two separate causes of action, and hence the controversy between the plaintiff and the railroad company is not a separable one .within the meaning of the act of 1887, § 2, el. 3.</p> <p>2. Same.</p> <p>The fact that in order to obtain a lien against the property of the company the plaintiff is required to show that ho filed a notice of his lien in the proper county in the proper time, in addition to showing that he is_ entitled to a judgment against the contractor, does not make the controversies sepaiable.</p> <p>8. Same.</p> <p>Ivor is it important that the contractor has not been served with summons, and has not appeared, as the right of removal must be tested solely by the case made by the complaint.</p> <p>4. Same.</p> <p>Rev. St. U. S. § 737, authorizing the court to proceed to the trial of the suit between the parties properly before it, when there are several defendants, and one or more of them are neither inhabitants of nor found within the district, and do not voluntarily appear, does not relate to the removal of causes.</p>

<p>Removal or Causes—Local Prejudice.</p> <p>In an action by a foreign corporation for tJio price of lumber sold, defendant counter-claimed for services rendered, and for damages for breach of contract. In support of a petition for removal to the federal court plaintiff died an affidavit signed by several citizens of the county in which defendant resided, stating in general terms that from prejudice and local influence the plaintiff could not obtain a fair trial in that county, or in the judicial district. The facts stated in the affidavit were that defendant had a large and influential business connection in the county and district, and that the counties had had more or less litigation in their corporate capacity, which had excited a prejudice against non-resident corporations. This affidavit was controverted'by one signed by numerous citizens of the vicinity. Held, that the petition would be denied.</p>

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

In Equity. Application by James Murdock, Jr., for a preliminary injunction restraining the board of public affairs of the city of Cincinnati from enforcing a special assessment.

<p>At Law. Ejectment.</p>

<p>Public Lands—Cutting Timber—Payment for Land.</p> <p>A party prosecuted for cutting timber on the public lands under section 2461, Rev. St., is only relieved from the criminal prosecution and liabilities provided for in said section 2461 by payment of $2.50 per acre for the land on which it is cut, in pursuance of the provisions of the act of 1878, (1 Supp. Rev. St. p. 329, § 5;) he is not relieved from his civil common-law liability to the United States as owner of the land for the value of the timber cut.</p> <p> {Syllabus by the Court.) </p>

<p>Trade-Marks—“Cough Cherries.”</p> <p>The words “Cough Cherries,” as applied to a confection, are not descriptive of the qualities of the article, but are sufficiently arbitrary and fanciful to be appropriated as a trade-mark.</p>

<p>indictment for Violation of Interstate Commerce Act. On motion for new trial arid in arrest of judgment.</p>

<p>In Admiralty.</p> <p>These were libels for negligence in the loss of the schooners Acontias and A. H. Moss. The facts of the case were substantially as follows: On the 28th of October, 1887, at about 7:30 p. m., the steam-bargo Elfin-mere left Cheboygan, Mich., bound for Toledo, with the schooners Nellie Mason, A. II. Moss, and Acontias in tow, in the order named. The wind was then light, and the weather somewhat hazy. Towards midnight the wind shifted to the north-east, and began to blow heavily; the sea increased, and snow fell in flurries during the night. The tow passed Presque Isle light about 2 o’clock in the morning, at a distance variously estimated at from a quarter of a mile to a mile and a half. Shortly after passing this light, land was dimly seen off the starboard bow. The lead began to indicate shoaler water, and the steamer’s wheel was put hard starboard, with the intention of heading the tow into the wind, and holding the schooners until daylight, or until the storm abated. In so doing, however, the Acontias and the Moss took the ground, the line between the first and second schooners was either cut or parted, and the Acontias and Moss went ashore, and became a total loss. ■</p> <p>The court was assisted upon the argument by Commander Elmer, of the United States Navy, and Capt. Joseph Nicholson, of the Lake Marine.</p>