Volume 40 — Federal Reporter

<p>Federal Courts — Corporations—Residence.</p> <p>A corporation cannot acquire a residence in a state other than one in which it is incorporated, within the meaning of act Cong. 1887, which provides that, “when the jurisdiction is founded only on the fact that tho action is between citizens of different states, suit shall be brought only in the district oí the residence of either plaintiff or defendant. ”</p>

<p>1. Courts — Coneltctins State and Federal Jurisdiction.</p> <p>When property is seized and held under mesne or final process of either a state or United States court, it is in the custody of the law, and within the exclusive jurisdiction of the court from which the process has issued, for the purposes of the writ, and the possession of the officer having it in custody cannot be disturbed by another court of co-ordinate jurisdiction. Such disturbance would be to invade the jurisdiction of the court by whose command it is held, and to violate the law which that jurisdiction is appointed to administer.</p> <p>2. Same.</p> <p>Of course, this rule is not applicable in those cases where the courts of the United States exercise superior jurisdiction for the purpose of enforcing the supremacy-of the constitution and laws of the United States.</p> <p>3. Same — Moktgage UouEOnosuKE — Injunction.</p> <p>The statutes of G-eorgia provide that, for the foreclosure of a chattel mortgage, the mortgagee shall make affidavit of the amount of principal and interest due thereon, annex the affidavit to the mortgage, and file both in the office of the clerk of the superior court of the countyin which the mortgagor resides. The clerk shall thereuponissue execution, bearingteste in the name of the judge of the court, commanding the sale of the mortgaged property, and the sheriff shall proceed to sell the same as in other judicial sales. The mortgagor may avail himself of his defenses by making affidavit of illegality to the execution, and, when it is filed, the levying officer shall postpone the sale, and return all the papers to the court from which execution issued for a trial of the case hy jury. Meld, that such a foreclosure is a proceeding of the state court, within the meaning of Rev. St. U. S. § 720, providing that no injunction shall be granted by a federal court to stay proceedings in a state court.</p> <p>4. Same.</p> <p>Where a sheriff under such an execution has taken possession of the property of an insolvent mortgagor for the purpose of such foreclosure, the court from which process issued has complete jurisdiction of the subject, and the federal courts will decline to appoint a receiver to take charge of the balance which may remain after satisfaction of the mortgage liens, and to distribute the same to the general creditors.</p>

<p>1. .Corporations — Stockholders—Contribution—Penal Liability op Corporation.</p> <p>Certain citizens of Rhode Island, stockholders of the American File Company, a Rhode Island corporation, who were required to pay a Judgment against that corporation "by a decree affirmed by the supreme court, (File Co. v. Q-arrett, 110 II. S. 288, 4 Sup. Ct. Rop. 90,) filed this bill in equity to compel the Maryland stockholders to ■contribute, held, that the proof discloses that the liability under which the complainants as stockholders were compellable to pay the debt due by the corporation was not a contractual, but a penal, liability, under the Rhode Island law, and not enforceable outside of that state, and therefore was not a burden resting upon the Maryland stockholders, in respect to which they can be called upon for contribution.</p> <p>2. Same — Unauthorized Increase op Capital — Liability op Stockholder.</p> <p>Held, that it appears from the evidence that the increase of capital stock of the American File Company, issued after the filing of the certificate required by section 1, e. 128, Rev. St. R. I., was not an increase authorized by avalid, corporate vote of a majority of the stockholders, and that under the circumstances of this case it did not, in respect to the Garrett debt, entail upon the holders of that stock the liabilities imposed by the first section of the Rhode Island law for failure to file the certificate required by that section.</p> <p> (Syllabus by the Covet.) </p>

<p>1. Gifts — Inter Vivos.</p> <p>C., ¡i married woman, having some 80,000 in her name in a savings hank, in accordance with a previously expressed intention directed the bank teller to transfer 81,500 to each of three nieces, which he did, charging her account with $1,500. On her desire that the bank-books should be so made that the money could not be drawn during her life, the teller indorsed on the pass-books: “Only Mrs. C. lias power to draw.” C. and her nieces wrote their names in the signature book, the word “Trustee” being added to that of G. by the teller. The books wore given to C., who, (luring her life, declared that she was trustee as to this money for her nieces. The nieces accepted the gifts in the life-time of C. Held a valid gift inter vivos, and that, owing to the express declaration of trust by G., no cessation of control over the property given was necessary.</p> <p>2. Evidence — Declarations.</p> <p>Evidence of declarations and acts of the donor at or about the time of the acceptance of the gift, showing her purpose in transferring the deposits to her nieces, was admissible.</p>

<p>1. Vendok and Vendee — Bona Vide Pukchasebs — Equitable Title.</p> <p>Complainant claimed land under deed from S., who was alleged to have bought it from the county. There was no direct evidence of a sale to S., but it appeared that the county had taxed the land, and he had paid the taxes; that in a book preserved in the office-of the clerk, but not one of the records of the county, there was a statement of the sale to him; that in one of the official books there was an entry of money received from him in payment for the-land; and it appeared from one certificate, signed by the register of the county, that the land had been sold to S., and from anothe'r, signed by the receiver of the county, that he had paid for it. Defendant afterwards bought the land from the countjr, but it was proven that he had access to all of the records, and had notice before the sale was completed that complainant claimed the property. Meld, that the equitable title was in complainant, and defendant would be compelled to convey the legal title to him.</p> <p>2. Costs — Refusal to Disclose Intehest.</p> <p>The fact that a defendant holds a contract in respect to the land, and refuses to produce it, will justify a decree divesting him of all title, and subjecting him to costs with the other defendants.</p> <p>8. Waste — Who is Liable.</p> <p>Though a defendant assisted in obtaining the title, yet, if he did not take part in, or receive benefit from, the waste to the property, damages will not be decreed against him.</p>

<p>1. Patents eok Inventions — Electric Light Cabmons — Extent or Claim.</p> <p>The claims of letters patent granted May 12,1885, to the Electro Dynamic Light Company, for improvements in electric lamps, (excluding the third claim, which was not in issue,) are substantially as follows: (1) A conductor of carbon, made of fibrous or textile material, and of an arched form; (2) a conductor of carbon, made of fibrous material, in an hermetically sealed chamber, without regard to form; (8) the combination of a conductor of carbon, made of fibrous or textile material, in an arched form, and the glass chamber, hermetically sealed, and deprived of carbon-consuming gas. Hold, in vitfw of the state of the art, and the evident necessities of the case, that these claims amounted to the broad claim. of the excl u-sive use, in incandescing lamps, of all carbons made of fibrous or textile materials.</p> <p>8. Sami:.</p> <p>Such a claim is void fo» want of novelty, in view of the fact that wood charcoal had previously been used for electric lighting in incandescent lamps.</p> <p>S. Same — Amendment to Application.</p> <p>The original application of Sawyer & Man, filed January 9, 1880, for a patent for improvements in incandescing electric lamps, was evidently intended to secure only the arched form of the carbon burner; but in 1885, after Edison’s inventions had been published to the world, the purpose of the application was changed to secure the use of all carbons made of fibrous material. Held, that such a change was not justifiable, and the claim based thereon is void.</p> <p>4. Same- — Invention.</p> <p>Held, further, from the evidence in the case, that Sawyer & Man did not invent a successful lamp, and did not discover the principle on which such a lamp could be made; but that the true principle for constructing such a lamp was described in the patents of Edison applied for in April, 1879, and November 4,1879, and numbered 227,229, and 228,898, as exhibited in the filamental or thread-like conductors or burners, inclosed in a more perfect vacuum than had ever before been used.</p>

<p>In Admiralty. Libel for personal injuries.</p>

<p>At Law. Motion to file transcript of cause as on removal from the state court.</p>

<p>In Equity. On bill for an account.</p>

<p>1. Mortgages — Sales on Foreclosure — Suppression op Bidding.</p> <p>In a suit to stay prosecution ol an action on bonds executed to commissioners as part payment for certain, property purchased by complainants at a sale under foreclosure, it appeared that on a resale thereof for complainants’ default- in the payment of. such bonds the purchasers represented a portion of the bondholders, who had combined to bid in the property in case the amount of the original sale should not be realized. Before such resale, the purchasers had agreed, if they should buy such property, to sell it, on the terms of the original sale, to a certain syndicate, who did not intend to bid'at the resale. One M. had agreed with said syndicate not to bid at such resale in consideration of an interest in the property, to be transferred to-him on the terms which they should have to pay. The purchasers on the resale sold the- property to the syndicate for §86,000 more than they paid. The commissioners who conducted the resale were not aware of the agreement which had been made between the purchasers and the syndicate, or the agreement between the syndicate and M. Held, that the agreement between the purchasers and the syndicate, not being intended to suppress competition at the sale, was a legitimate one.</p> <p>S. Same — Action to Set Aside Sale — Parties.</p> <p>Neither the purchasers at the resale, nor the bondholders for whom the sale was made, being parties to the action, the cause cannot be determined in their absence.</p> <p>3. Same — Original Suit.</p> <p>An original suit to set aside a sale under a decree of foreclosure, by the party to a foreclosure suit, where relief can be obtained by a summary application to the court in the foreclosure suit, should only be sanctioned in exceptional cases.</p> <p>4. Same — Laches.</p> <p>• Where complainants failed to apply to have such resale vacated in the trial court, and an unexplained delay of six years has intervened since such resale, it will not be vacated as fraudulent.</p> <p>S; Same..</p> <p>The court will not decree a deduction of such §86,000, paid by the syndicate to the purchasers in excess of the purchase price, from the amount due on the bonds, as neither the commissioners nor- the bondholders not represented by such purchasers were participants in any wrong.</p>

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

At Law. On application to be relieved from a stipulation. In the autumn of 1888 the defendant made a motion for a stay of proceedings pending the decision of the supreme court in the case of Slauson against this defendant, involving substantially the same questions. An order was entered granting the motion, on condition that the defendant would file a stipulation, within 10 days from the dale of the order, that this cause should abide the result in the supreme court.

At Law. This is a controversy between the defendants concerning the ownership of a certain fund now in the custody of the complainant. The case is to be decided with reference to the following facts: On June 6,1887, the Fanners’ National Bank of Portsmouth, Ohio, sent to the Fidelity National Bank a sight draft, in the usual form, drawn by Samuel J. Huston on Thomas Shelby, of Lexington, Mo., in the sum of $4,100.

<p>In Admiralty. Libel for damages. Appeal from district court.</p>

<p>At Law. Action to recover possession of real property.</p>

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

<p>At Law. Action to recover an excess of customs duties.</p>

<p>At Law. Action to recover excess of customs duties.</p>

<p>At Law. Action to recover duties paid under protest.</p>

<p>Application of Thomas J. Cuddy to be Discharged from Imprisonment on a Writ of Habeas Corpus.</p>

On Rule to Show Cause why Writs of Habeas Corpus Should not Issue. The cases of the two petitioners are precisely alike, and they will therefore be considered together. In their petitions they allege that they were, on the-day of September, 1889, indicted by a grand jury, so called, impaneled by the United States court fbribe Indian Territory, for the crime of larceny; that on the —-day of September, 1889, tlicy were tried upon said indictment by a petit jury in said court.

On application for habeas corpus. These cases are alike, and they will be considered together.

<p>On Motion to Quash Indictment.</p>

Petition for Habeas Corpus. The petitioner states that, on the 15tb day of June, 1889, an information was tiled against him by the United States attorney for the Indian Territory, in the United States court for said territory, charging biiri with assault on one R. H. Bonsted, who is alleged in said informa-? tion to be a United States citizen, by shooting at the said Boosted; that, on the 11th day of September, 1889, he was tried upon said charge, and found guilty by the…

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

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

In Admiralty. On appeal from district court. 26 Fed. Rep. 191. Libel to recover damages to green fruit through tbe alleged improper discharge from the steam-ship Surrey on the 24th of January, 1885, in frosty weather. New proofs disclosed the fact that the fruit was discharged on Saturday, January 24, 1885, instead of Monday, Januaiy 26th, as found by the court below, and that the weather until late Monday was not so cold as to injure the fruit.

<p>1. SlIIPPING — CARRIAGE OV GOODS — BlM, Oil' LADINO — STIPULATION — SUBSTITUTED DELIVERY.</p> <p>The clause In a bill of lading, providing that the consignee is bound to be ready to receive his cargo on ship’s readiness to discharge, and, in default, that the master may land it upon the wharf where tho ship lies for discharge, without notice, and at consignee’s risk, construed as authorizing a discharge without notice, but not as relieving the ship from tho duty of exercising reasonable care to protect tho goods as long as they are, or ought to he, under the control of the master, is a reasonable and valid stipulation, and, whore the consignee is not ready to receive, authorizes a substituted delivery of green fruit, in cold weather, by landing the same upon the wharf, at Ms risk, provided that, if present, he could have removed it without injury. Reversing 33 Fed. Rep. 663.</p> <p>3. Same — Bouden or Diligence on Consignee — Waiver of Notice.</p> <p>Under such provision, the consignee is bound to watch for tho ship’s arrival, and he ready to receive the goods at the time and place they are deliverable; and, in default, the ship may land the cargo without previous notice.</p>

<p>In Admiralty. On appeal from district court. 36 Fed. Rep. 697.</p> <p>These cases were tried below with five others against the same steam-ship. Five of the libels were dismissed, and the libelants therein have not appealed. The claimants appealed in the three cases in which the vessel was held liable, and the appeals came on to be heard together. No new proofs wei'e taken.</p>

<p>In Equity. On final hearing on pleadings and proofs.</p> <p>Bill by Peter D. Barlow and others against John O’Fallon Delaney and others, the heirs of Mrs. Octavia .Boyce, to establish a lien on certain lands held by her in her life-time as a separate estate. The lands in question had been partitioned among defendants (the heirs of Mrs. Boyce) subsequent to her death. Administration upon her estate had been granted before the covenant of warranty referred to in the opinion was broken, and before the bill was filed.</p>

<p>In Equity. Application for 'mandamus. On demurrer to return.</p>

<p>Mortgage — Foreclosure—Right to Intervenís.</p> <p>To a bill to foreclose a mortgage on tho property and franchises of a street-rail- ’ road company, which mortgage covered «ftor-acquired properly, intervenors filed a cross-bill, alleging that a certain portion of the after-acquired property liad been acquired by funds furnished by the intervenors under contracts by which the company was to construct and operate that portion of its line for a certain timo and in • a eeiia in manner; that the bondholders and tho corporation had conspired together to file tho bill for foreclosure, and by the sale to deprive the intervenors of their rights in the property; that accordingly a receiver had been appointed, who refused to operate that portion of the line, whereby intervenors had been deprived of the advantages provided for in the said contracts; and that the contracts provided that, upon the failure of the company to operate the line, a conveyance of it was to be made to intervenors. The prayer was for such conveyance. ' //old.that, as the claim of the intervenors was adverse to the parties to the bill, the cross-bill' should be dismissed.</p>

<p>1. MimclPAT. CoKPOBATIONS — OliniNANOES—WlIAKVES—OlSSTKCOTIONS.</p> <p>By ordinance oí the city of New Orleans, the right was conferred on complainant railroad company to inclose and occupy ⅛ * * that portion of the levee, batture, and wharves in the city in front of its riparian property, acquired or tobe acquired, between certain streets, and to erect and maintain thereon such ferry facilities, wharves, piers, warehouses, tracks, depots, etc., as should be necessary and convenient for the transfer of cars, engines, passengers, and freight, a,nd in the trans-aetion of its business. Held, that the right to erect these improvements was confined to so much of the levee and wharf of the city as lay in front of the riparian property of the complainant, and did not extend beyond the wharf line; and the ordinance did not authorize the placing of piles, or any other structure, outside of f.he line of the city wharf.</p> <p>2. Same — Injunction.</p> <p>An injunction pendente Hte, restraining the city from interfering with complainant in the erection and maintenance of such structures as it was authorized to erect and maintain under the authority of the ordinance, did not protect- complainant in the erection of the pilings, or other structures, outside the wharf lino of the city.</p> <p>8. Navigable Watebs — Powi-iks or Courts — Injunction.</p> <p>The Mississippi river, being a navigable stream, is within the exclusive control of congress, and neither the city of New Orleans nor the state of Louisiana can authorize any obstruction of its navigation; nor ean the courts extend the injunction so as to protect complainant in the erection of structures outside the wharf line of the city.</p>

Bill in Equity to forfeit lands under the act of congress, approved March 2, 1889, entitled “An act providing in certain cases for the forfeiture of wagon road grants in the state of Oregon.” 25 St. 850. On exceptions to portions of the bill for impertinence.

<p>Attobney and Client — Compensation—Contbact-—Rescission.</p> <p>An attorney entered into a written contract to collect certain claims for a client, an elderly woman, in consideration of which the latter agreed to pay him a certain per cent, of the amounts collected. On collecting a claim, the attorney refused to pay the amount over until an increased compensation was paid him, alleging that the client had subsequently orally agreed to pay him the increased fees. This the client denied, but, being unable to obtain the money collected without a lawsuit, after trying to effect a settlement for six months on the basis of the written contract, ffiially paid the amount demanded. The attorney’s testimony as to the amount of compensation to be allowed by the alleged oral agreement was inconsistent, with an affidavit made by him. Held, that the client was justified in rescinding the written contract, and in employing another attorney to collect the remaining claims.</p>

At Law. Condemnation proceedings. Intervening petition by the St. Louis & Cairo Railroad Company and the Mobile & Ohio Railroad Company for the condemnation of certain lands, for an incline, and transfer-boat landing.

<p>1. Jtthsment — Collateral Attack.</p> <p>Where land has been sold on execution under a domestic judgment the judgment debtor cannot, in a collateral proceeding, and against a bona fide purchaser, seek to impeach the sheriffs return of service of summons in the original action and the recitations of the judgment.</p> <p>2. Same — Limitation or Actions.</p> <p>Under Code Civil Proc. Kan. 116, subd. 1, which provides that a suit for the re-oovery of land sold under execution must be brought by the execution debtor withiüi five years after the recording of the deed, an execution debtor cannot collaterally attack the validity of a sale ten years after the deed was recorded, where the record shows jurisdiction of the person and the subject-matter.</p>

<p>On Motion to Quash Venire.</p>

<p>At Law.</p> <p>Plaintiff', Samuel T. Poinier, a commissioner of the circuit court of the United States for South Carolina, was appointed chief supervisor. He resided at Spartanburg, S. 0., and there kept his office. At the opening of the circuit court, according to law, on October 5, 1888, he left Spartanburg, and went to Charleston, where the court was in session, and attended it de die in diem, discharging his duties as chief supervisor. When the election was over, and the votes were counted, he prepared and submitted his accounts, which were examined and approved by the district attorney and the judge. When they reached the department of the treasury in Washington, certain items were disallowed by the first comptroller of the treasury. Thereupon the plaintiff brought suit in this court against the United States. In his petition he sets out all necessary facts, and produces his entire account, including the items disallowed. The United States file an answer insisting on the disallow-ances. At the hearing all the items of the accounts disallowed were proved. The questions submitted were questions of law, under a construction of sections of the Revised Statutes.</p>

<p>1. Witness— M-tendance — ⅛1 ideaqe.</p> <p>Witnesses residing- in tlie district, who attend court in obedience to a subpoena, are entitled to mileage. lees lor the whole distance necessarily traveled in going to and returning- *om the place where the court is held, though it exceeds 100 miles.</p> <p>8. Same — Taxation or Costs.</p> <p>Where the case has been continued at plaintiff’s request and at his costs, mileage lees to be paid delendants’ witnesses, who have been subpoenaed, and have come more than 100 miles, will not be taxed against plaintiff until the trial of the cause, and until the necessity oí the witnesses’ personal attendance, in lieu oí taking’ their depositions, may be determined.</p>

<p>1. Untied States Marshal — Illegal Fees — Indictment.</p> <p>Rey. St. U. S. § 5488, makes it criminal for any person to make or cause to be made, or present or cause to be presented, for payment or approval, to any person or officer in the government service, any claim against the government, knowing the same to be false or fictitious, or to cause to be made or used any false receipt, voucher, account, affidavit, etc., knowing the same to be false, with intent to defraud, etc. An indictment charged that defendant, a deputy mai’Shal, having a warrant for,the arrest of a violator of the United States statutes, served the same, and, for the purpose of obtaining approval and payment of a false and fictitious claim against the government, caused to be made a false and fictitious account, affidavit, and voucher as to the number of miles traveled by him, and as to the employment of a guard in such service, and as to the number of meals furnished the prisoner. The account was set out in full, as were also the guard’s receipt for fees, and the receipt of the person furnishing the meals. The account was alleged to be false, and the fictitious items were designated specifically, and it was alleged that defendant knew them to be false. Held, that the specific acts constituting the offense of making the false account were set out with sufficient particularity.</p> <p>2. Same.</p> <p>The omission to allege the name of any officer to whom the account was to be presented is a fatal defect to such an indictment.</p> <p>8. Same.</p> <p>It is insufficient to allege that an account due from the United States to O., the United States marshal, was presented to O., as the marshal could not audit or pay a claim against the government, due to himself.</p>

<p>Desertion from Military Service — Soldiers—Minors.</p> <p>One who remains in the military service oí the United States for more than two years after attaining his majority, receiving pay therefor, is within the meaning of Rev. St. U. S. p. 234, art. 47, providing that “any ⅞ * ⅝ soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall '* * * suffer * * * any punishment ⅝ * * which a court-martial may direct, ” and the court-martial’s finding cannot he reviewed on habeas corpus, though his enlistment was void because of his minority.</p>

<p>DfflKK'jMON FBOM MlMLARY SjEKYICE — JUKISDICTION—MlNOBS.</p> <p>As enlistment oí a minor in the military service oí the United States is voidable only, and not void, a court-martial has jurisdiction to try him lor desertion, and its finding cannot ho reviewed by the civil courts.</p>

<p>Rebjury — Oath. ...</p> <p>... Defendant was indicted for perjury. The evidence showed that he made a verbal statement before a United States commissioner, and charged one B. with violating the revenue law. The commissioner reduced his statement to writing, beginning with the words, Mi, “being duly sworn, ” etc., and ending with tho jurat. On being told, “If you swear to this statement, put your marls hero, ” defendant made his mark. Held, that this was an oath.</p>

<p>Patents tor Inventions — Prior State of the Art.</p> <p>In letters patent No. 338,766, dated January 18,1881, for improved machinery for winding yarn, the.fifth claim was for a movable carrier with a detector lever to stop the winding of a particular snool when the thread breaks, and with a combination which pushes the detector lever out of the way of the cam-shaft. Meld, that as the English patent of Muir and Mcllwham (1886) showed devices for pushing the detector lever away from the cam, of which complainant’s combination was only an improvement, it is not infringed by an invention effecting the same purpose, but by a different structural arrangement.</p>

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

<p>Patents roit Inventions — Anticif-viton.</p> <p>Letters patent No. 248,(M6, were granted to Charles Gordon October 25, 1881, for improved apparatus for cooling and di’awing beer. The specifications claimed as inventions the surrounding fhe faucet with a cold-air passage, an upper ice-box connected with the cold-air passage, by means of which the air cooled in the ice-box and the wat er produced by tho melting ice cools the liquid in tho supply-pipe connected with the faucet, and the surrounding the outer pipe with a non-conducting jacket. Claim 1 was the combination of the ice-box, supply-pipe, faucet, and cold-air passage. Claim 4 was tho combination of the ice-box, supply-pipe, faucet, lower chamber, and cold-air passage communicating between the ice-box and lower chamber. .He,Id, that claims l and 4 were anticipated by an apparatus invented and put in use by one Meinhard in 1877, and used for four years, embodying tho same principles as the Gordon invention, except the non conducting jacket surrounding the air passage. This jacket was simply a space filled with non-conducting material, to prevent the absorption of boat, by tho air in the cold-air passage. This addition was common knowledge and not invention.</p>

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

<p>Patents for Inventions — Extent oe Claim — Treatment oe Hides for Belting Leather.</p> <p>The claim of letters patent No. 149,954, issued to Herman Royer, April SI, 1874, was for “the treatment of the prepared raw hide in the manner and for the purposes set forth. ” The method of. treatment described was (1) the removal of the hair from the hide by sweating; (S) drying the hide perfectly hard; (3) inserting it in water for 10 or 15 minutes; (4) fulling or softening it by mechanical means; (5) spreading on it a certain mixture; (6) fulling this mixture into it in a suitable machine; (7) moistening it 4 or 5 times a day; (8) stretching it, and cutting it into suitable pieces. The specification refers to the patentee’s “mode of preparing hides, ” and says that it is necessary to make use of a preparation substantially as described, in order to render raw hide lit for use. The claim was amended so as to conform to above on suggestion from the patent-office that a claim for preparing raw hides by the fulling and bending operation and the preserving mixture was not patentable. Held, that the claim must be limited to the whole process described, and the patent was not infringed by a variation in the method of making belting leather; as, by liming, instead of sweating, green hides. Following Royer v. Coupe, §8 Fed. Rep. 113.</p>

<p>Patents eoh Inventions — Belt-Shietin& Device.</p> <p>The claim, of certain letters-patent granted to Herman Royer was, “in combination with the drum of a raw-hide fulling-macbine operating to twist the leather alternately in one direction and the other, a shifting device for the purpose of making the operation automatic and continuous. ” The belt-shifting device had long before been used in combination with the roller of a washing-machine for the same purpose, and could obviously be used in combination with many machines, to impart reverse motion. It appeared that it was first applied to the patentee’s machine by a mechanic, who was n'ot shown to have worked under the patentee’s direction. Held, that the combination was not patentable, and, if it was, that the patentee was not a sole inventor. Following Boyer v. Ma/m.ofaoturmg Co., 20 Fed. Rep. 853.</p>

<p>1. Federal Courts — Jurisdiction—Waiver.</p> <p>A corporation oi another state, defendant in a snit in a federal court which, has jurisdiction of the subject-matter, by appearing, filing answer, and taking testimony, waives its right to insist on the bearing that it can be sued in the district of its residence only.</p> <p>2. Patents for Inventions — Riding Ploavs — Novelty.</p> <p>Letters patent No. 284,036, issued to John H. McBride, for a “riding attachment for plows” were for a combination enabling the driver of a plow, while seated on it, to regulate the width and depth of furrow. It appeared on bill for infringement thereof that prior patents had been granted for similar inventions, but it was not clear that complainant’s combination was not new. Held, that the prima facie case of validity of the patent arising from its issue was not overcome.</p> <p>3. Same — -Infringement.</p> <p>Complainant’s patent is not infringed by plows manufactured under letters patent No. 35*3,234, issued to Charles S. Ruef, November 23,188G, which attains the same objects, but by a different combination of the parts, as complainant’s patent does not apply to the independent parts, they having been previously used.</p>

<p>Patents fob Inventions — Grain-Transeebbing Apparatus.</p> <p>Letters patent granted November J8,1884, to Edward S. Richards, for a “grain-trarisierring' apparatus, ” covered a combination, oí (1) a stationary building; (2) two railway tracks passing into or on opposite sides oí such building; (8) elevating apparatus; (4) an elevated hopper-scale, with a valve in the bottom; and (5) a discharge-spout, ior discharging the grain from the bottom of the hopper into the car on the opposite side from the car from which it was taken. Held, that the combination was not patentable, as it was but an aggregation of old parts, with nothing done by either which it did not do when acting separately.</p>

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

<p>1. Copyright — Action por 'Infringement — Proof of Publication of Notice.</p> <p>Rev. St. XJ. S. § 4968, declares that no person shall maintain an action ior the infringement of his copyright, unless he shall give notice thereof (in the case of a photograph) by inscribing upon some portion of the face or front of the several copies the words, “Entered according to act of congress, ” etc. Held that, though compliance with this requirement must be pleaded and proved as a prerequisite, complainant is not required to furnish separate, distinct, and specific proof as to each copy which he may have published. Affidavits of those in charge of the preparation of all the copies he has published are sufficient to make out a prima facie case.</p> <p>2. Same.</p> <p>The prim,a facte ease thus made is not overthrown by affidavits that defendants produced their lithograph from one of complainant’s photographs, mounted upon a card, without any notice of copyright, but similar in all respects to the cards used by complainant, in the absence of any proof as to the identity of the individual from whom defendant purchased the copy.</p>

<p>Shipping — Agreement to Charter — "Warranty.</p> <p>Brokers tendered to defendants a vessel for charter of a certain registered tonnage. Defendants, being unable to find the cubical capacity of the vessel described in any of the published ratings of vessels at that port, made inquiry of the brokers, who informed them that it was a certain amount, and defendants then agreed to accept it. A charter-party was drawn up, in which defendants inserted the represented cubical capacity, but the brokers gave notice that they had no authority to guaranty cubical capacity, and it was agreed to send the charter-party to the vessel’s agents, who, on receipt of it, declined to guaranty the capacity. Held, that there was no contract, as the representation made by the brokers as to the capacity was, under the circumstances, a part of the contract on the part of the defendants, whatever it may have been on the part of the brokers.</p>

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

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

<p>Motion to Remand.</p>

To the Honorable, the Judges of the Circuit Court of the United States for said District: The petition of Charles P. Ball, receiver, appointed by the Honorable Don A. Pardee, respectfully shows unto your honors that one H. F. Alsa-brook has brought suit for personal damages against your petitioner in the superior court of Polk county, in the state of Georgia, and in the petition filed therein the said Alsabrook alleges that on the 17th day of July, 1889, he obtained from the…

<p>Appeal from, and Error to, District Court. 34 Fed. Rep. 17.</p> <p>On motions to dismiss the appeal and writ of error.</p>

<p>In Equity. Motion for leave to file answer.</p>

<p>Costs — In Federal Courts — Statutes—Repeal.</p> <p>Rev. St. IT. S. § 888, provides that, where a plaintiff in a circuit court recovers less than 8500, he shall not recover costs, but at the discretion of the court may be adjudged to pay costs. This section formed a part of the judiciary act, which fixed the jurisdictional amount at ⅜500. Act. Cong. March 8, 1887, fixed the minimum limit of the amount in dispute, necessary to give jurisdiction, at 8⅝000, but made no reference to section 908. Held, that the section was not amended by the act of 1887. Eastman v. Sherry, 37 Fed. Rep. 811, followed.</p>

<p>In Equity. On motion to dismiss a scire facias to revive an action.</p>

<p>1. Railroad Companies — Mortgage Foreclosure — -Trustees and Receivers — Compensation.</p> <p>On foreclosure proceedings it appeared that the trustees and receivers contracted originally to render their services for the sum of Sl,500, and that they were paid such suni up to the beginning of the litigation; that since the litigation commenced they have been paid by allowances by the court to them as receivers, and by appropriation by themselves as trustees, at the rate of 84,500 per year. The services rendered were not exclusive of their business, and did not take all or nearly all of their time, and there was no great responsibility requiring extraordinary compensation. Held, that they had been amply compensated, and that an extra allowance was improper.</p> <p>2. Same.</p> <p>The allowance of $500 was ample compensation for the services of a trustee of a mortgage, of which there was only one bond of $500 outstanding, the balance of the issue of §1,500,000 being deposited with a trust company; his services in the litigation being merely nominal, and going no further than the use of his name.</p> <p>8. Same — Attorneys’ Fees.</p> <p>Such trustee insisted on the services of his attorneys in filing the bill for foreclosure of the mortgage of which he was- trustee; and it was admitted that at the time of such employment such services were worth $2,500. Held, that, such sum should bo allowed to the attorneys.</p> <p>4. Same.</p> <p>In the foreclosure proceedings there was no substantial contest, the whole matter being practically carried out in pursuance of a plan of reorganization, for which the solicitors for complainants were in no particular degree responsible. Held, that the sum of 8100,000 should be allowed as compensation to the solicitors who represented the trustees of all the mortgages.</p>

<p>At Law. Action by William R. Silver against the Connecticut River Lumber Company, to enforce an award, and suit in equity by the Connecticut River Lumber Company'against Silver, to set aside the award.</p>

<p>At Law. Action for damages for wrongfully killing plaintiff’s intestate.</p>

At Law. In ejectment. On rule to show cause why verdict should not be set aside, and a new trial granted. This rule came on to be argued, by agreement of the parties, before Mr.' Justice Bradley, at his chambers, city of Washington, 11th February, 1889.

<p>At Law. Action for official fees.</p>

<p>Al Law.</p> <p>Action to recover alleged excessive duties exacted by the collector of customs at the port of New York from the plaintiffs on their importations, between November 16, 1886, and July 20, 1887, on certain fish pastes known in the trade as “Anchovy Paste” and “Bloater Paste,” contained in small jars, or bottles. The collector levied duty thereon at 35 per centum ad valorem under schedule G of the tariff act of March 3, 1883, (Tariff Index, 284,) which reads, “Pickles and sauces of all kinds, not. otherwise specially enumerated or provided for in this act, 35 per centum ad valorem.” The plaintiffs protested, and claimed the same to be dutiable at 25 per centum ad valorem under the same schedule, (Id. 288,)to-wit, “Salmon and all other fish, prepared or preserved, and prepared meats of all kinds, not specially enumerated or provided for in this act, twenty-five per centum ad valorem.” The merchandise in suit was shown to be fisb paste manufactured by some process or formula known only to the manufacturers thereof, whereby anchovies or bloaters were finely ground and mixed with spices, resulting in a highly seasoned mixture,generally used as a relish with other food, and as a stimulant provocative of hunger or thirst. It was shown by the evidence of several importers of and large dealers in provisions that the term “sauce” had a restricted trade meaning at the time of the passage of the tariff act of March 3, 1883, in which nothing was considered a sauce unless it was in liquid form; that the merchandise in suit was a pasto, and not a liquid. Some of the witnesses testified that it was not only used as a relish when taken with food, but was in itself nutritious. On motion for a direction of a verdict in favor of the defendant, defendant’s attorney cited Maillard v. Lawrence, 16 How. 251; Greenleaf v. Goodrich, 101 U. S. 278; Syn. Ser. 3492.</p>

<p>At Law. Action to recover back customs duties. The plaintiffs, on January 4 and April 27,1888, made two importations from France into the port of New York of floral extracts, — jasmin and rose. These floral extracts were classified by the defendant, as collector of customs at said port, as “Alcoholic Perfumery,” under the subdivision of “Alcoholic Preparations,” which provides for “alcoholic perfumery,” contained in Schedule A of the tariff act of March 3,1883, (T. I. new, par. 100,) and duty thereon, pursuant to such provision, was exacted of the plaintiffs by him, as said collector, at the rate of $2 per gallon and 50 per cent. ad valorem. Against this classification and exaction the plaintiffs made sufficient and seasonable protests, claiming therein that these floral extracts were “alcoholic compounds,” dutiable at the rate of $2 per gallon for the alcohol contained and 25 per centum ad valorem under the subdivision of “Alcoholic Preparations,” which provides for “alcoholic compounds not otherwise specifically enumerated or provided for,’’contained in said Schedule A, (T. I. new, par. 103.) Thereafter the plaintiffs, within the time required by law, duly made appeals to the secretary of the treasury, and, within 90 days after adverse decisions were made thereon by him, brought this suit to recover the difference in duties at the rate exacted by the defendant as said collector, and at the rate claimed by them in their protests. Upon the trial it appeared that these floral extracts were colored liquids, the jasmin being of a wine color, and the rose of an olive green color; were composed of about 95 per cent, of alcohol and 5 per cent, of sediment; were somewhat greasy or oily to the touch, and were of a heavy fragrant odor; and that, when applied to a linen handkerchief, etc., they both left a greasy or oily stain upon it. From the plaintiffs’ testimony it appeared that at and prior to the passage of the aforesaid act of 1888 the term “perfumery” was a trade term, having a more restricted meaning than the dictionary definition, and, in trade and commerce of this country,meant the finished products manufactured from various raw materials differently combined, and made ready for use as perfumery by the consumer; that in the manufacture of such finished products the various raw materials used had to be reduced in strength and rendered volatile, so that the heavy smell of them, as it was called in the trade, was made to disappear; that their different smells and odors had to be compounded in such a way as to produce imitations of nature; and that the natural coloring matter in these raw materials had to be treated, and the oil or grease in any of them removed, so that the finished products would not stain the handkerchief or other article to which they were applied; that these floral extracts were not, at and prior to the passage of the aforesaid act of 1883, in trade and commerce of this country, perfumery, or included in the term “perfumery;” that they have always been in such trade and commerce regarded as, -and used as, one of the materials employed in the manufacture of perfumery. From the defendant’s testimony it appeared that, at and prior to the passage of the aforesaid act of 1888, in trade and commerce of this country perfumery was anything which gave a pleasant odor, and that floral extracts like those in suit were so known as, and included in the term, “crude perfumery.”</p>

<p>Customs Duties — Classification—Celekt Seed.</p> <p>Since tbe passage of the tariff act of March 3, 1883, (30 U. S. St. at Large, e. 121, p. 488,) such variety of celery seed as is not intended to be sown or planted to raise celery to be consumed by man, is not medicinal seed, but an. aromatic seed, and is not edible, and is in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture, is not dutiable at 20 per centum ad valorem as “garden seed, ’’under the provision for “garden seeds, except seed of the sugar-beet, ” contained in Schedule N of said tariff act, but is free of duty as “seed, ” under the provision for “seeds” contained in the free-list thereof.</p>

<p>1. Aiimy and Navy — Enlistment.</p> <p>A petition for discharge on habeas corpus oí one arrested as a deserter from the army alleged that petitioner was under 16years when enlisted; that he enlisted through the fraudulent representations of one J., the recruiting officer; that his father's written consent was obtained by means oí such representations; and admitted the desertion while still a minor. The return denied the fraud, and presented the written consent of petitioner’s father to Ms enlistment, and petitioner's sworn statement that ho was 30 years and 6 months old at enlistment, and alleged iliat J. was a private, and not the recruiting officer, who was one P. UeUl that, as the return was neither demurred to nor denied, it must be taken as conclusive as to all tile facts therein sot forth.</p> <p>2. Bam:-: — Evidknoh.</p> <p>Evidence of petitioner’s relations, that he was under 16 years when he enlisted, is not sufficient to establish that fact against the sworn statement of the petitioner and the record in the family Bible, showing that the birth of petitioner, as recorded, had been changed ¡rom 1870 to 1871, and the record of the birth oí a younger sister in 1871 entirely erased.</p>

<p>1. Patents tor Inventions — Harvesters—Infringement.</p> <p>The fifth claim of letters patent No. 191,264, dated May 29, 1877, for improved harvester, being a combination of toothed arms, a slotted receiving platform, and fixed springs, with the characteristics described in the patent, and co-operating for compacting the gavels, is not infringed by a harvester with a compressor in alignment with the packers, and below them, near the tail of a stationary receiving platform, working as a resistant to compact the gavel, the platform having one wide slot, through which the teeth move the wisps against overhanging rods.</p> <p>2. Same.</p> <p>Letters patent No. 223,812, for improvement in harvester machines, so that the grain may be freely delivered by moans of a swinging side elevator, conveying the grain, properly straightened, to the receiving table, so that it can be bound at the middle, are not infringed by a harvester with a swinging platform, and an elevator which drops the grain on an inclined board, with slots through which packing arms operate to compact the grain, with an endless apron, which is not connected with the harvester elevator.</p> <p>8. Same — Prior State op the Art.</p> <p>The twenty-first claim of letters patent No. 266,913, relating to mechanism for compressing the bundle of grain just before tying, in connection with a spring link for relieving the binding mill from strain, and obviating breakage when the grain is no longer compressible, is not infringed, in viefy of the former state of the art, by a device furnishing an elastic yielding of the compressor, which is not of the peculiar construction set forth in the claim.</p> <p>4. Same.</p> <p>In view of the prior state of the art, claims Nos. 3, 4, 9, and 10, under letters patent No. 272,598, dated February 20, 1883, whereby an automatic grain-binder regulates the position of the band in the gavel so as to place the gavel in its proper position, relative to the length of the grain, without the attention of the operator, must be limited to the peculiar construction of mechanism as set forth in the specifications by which this result is obtained.</p> <p>5. Same — Anticipation.</p> <p>The combination of the swinging butt-adjuster, arms, and a board pivoted to the adjustor, as set forth in claims 20 and 21 of letters 272,598, is anticipated by the “Heller Butt-Adjuster, ” used on harvesters in 1878 or 1880.</p> <p>6. Same.</p> <p>Letters patent No. 251,147, dated December 20, 1881, describing a mechanism for raising, lowering, and fastening the grain platform of a harvester, is anticipated by a patent issued to one Bacon in 1338 for lowering, fastening, and raising windows.</p>

<p>Trade-Makks — Statutes—Revivat,.</p> <p>In 1870 congress passed a statute providing for the registration of trade-marks, and in 1876 a statute imposing penalties for trespass upon the rights obtained by such registry. The statute of 1870 having been declared unconstitutional, in 1881 a valid statute was enacted, touching the same subject, which did not re-enact the penal statute of 1876, and made no reference thereto. Held, that the penal statute fell with that of 1870, and did not remain suspended, to become operative under the statute of 1881.</p>

<p>In Admiralty. Libel for materials and repairs.</p>

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

<p>In Admiralty. On appeal from district court. 39 Fed. Rep. 285.</p> <p>Libel for salvage by Thomas A. Scott against Four Hundred and Forty-Five Tons of Coal; the China Mutual Insurance Company, claimant and appellant.</p>

In Admiralty. On the intervening petitions of the owners and master and crew of the steam-tug Sampson. (>n the 25th of December last, the steam-tug Sampson, Capt. Joseph Delano, pursuant to orders received from the Baker Salvage Company of Norfolk, left this port to go after the schooner Taylor Dickson, then lying off Cbicamicomieo, on the North Carolina coast, flying signals of distress, with main and mizzen masts carried away.

<p>In Admiralty. On application to determine the priority of liens.</p>

<p>In Admiralty. Libel for damages. On appeal from district court.</p>

<p>At Law. Application to remand cause.</p> <p>This cause was removed from the state court under the third clause of section 2 of the removal act of 1888, which provides as follows:</p> <p>“When in any suit mentioned in this section there shall be a controversy between citizens of different states which can be fully determined as between them, either one or more of the defendants actually interested in such controversy mar remove said suit into the circuit court of the United Blates for the proper district.”</p> <p>The plaintiff' is a citizen of Connecticut; the defendant a citizen of New York. The plaintiff moves to remand.</p>

At Law. This is a suit brought by plaintiff to recover damages of defendant for tho killing of his horses by the carelessness and negligence of defendant’s agents or servants in running its engine and train of cars over said horses, when the same could have been avoided by the exercise of reasonable care on the part of such agents or servants.

<p>1. Railkoad Companies — Negligence—Running Ovek Dog.</p> <p>In an action for damages for the killing of a dog by a railway train, the engineer testified that while rounding a curvo, in a deep out, on a down grade, ho saw the dog ahead, and immediately reversed his engine, sounded the alarm whistle, and did all he coul d to avert the accident, a nd the fireman corroborated him. Witnesses for the plaintiff testified that they heard the whistle, but supposed it to bo for the town the train was approaching. The only witness on the part of the plaintiff who saw the accident, testified that the dog was running along the track. The engineer testified that she was crossing the track. The dog was cut in two parts about the middle of the body. Held, that plaintiff was not entitled to recover.</p> <p>2. Same — Evidence.</p> <p>Under Code Miss. § 1059, providing that, in actions against railroad companies for injuries to person or property, proof of the injury inflicted by the running of locomotives of cars of such company shall be prima facie evidence of Ihe want of reasonable skill and care on the part of its employes, the presumption created by the siatuxo ceases when the prima facie case made out by proof of injury is rebutted by evidence on the part of defendant.</p>

<p>At Law. Action on contract.</p>

<p>In Admiralty. On a libel for salvage.</p>

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

On Motion for Preliminary Injunction. This was a bill in equity to recover damages for the infringement of letiers patent No. 222,895, issued to William D. Gray, December 23, 1879, for an improvement in roller grinding mills.

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

<p>In Equity. Bill for injunction.</p> <p>The Filer <& Stowell Company brought an action of replevin on the common-law side of this court against Morgan et al., to recover certain mill machinery claimed by them to be thoir property, and under the process in tho case the marshal seized and took possession of the property. The bill alleges that, at the time of the seizure by the marshal, the complainant, as sheriff of the county, had tbe property in his custody under and by virtue of a writ of execution against said Morgan et, al. issued from the state court. It claims that the seizure by the marshal was wrongful; that complainant lias no adequate remedy at law; and prays that the replevin suit bo enjoined, and the property seized bo restored to complainant’s custody.</p>

<p>Receivees — Appointment and Discharge.</p> <p>Pending the final determination of a suit concerning real property, a receiver will not be continued in possession of the property, where the filing of a notice of lis pendens and continuance of an existing injunction will effectually secure complainant’s rights as to the corpus. As to the rents, those already collected should remain in the hands of the receiver until the final determination of the action, and future rents be secured by a bond.</p>

In Equity. Bill by David Beadle against Misliael Beadle to set aside a quitclaim deed given by complainant to defendant, and to establish a half interest in the land conveyed by it, and for an accounting.

<p>1. Customs Duties — Cottoh Cloth.</p> <p>The term “ cotton cloth, ” as used in Schedule I of the tariff act of March 3,1883, means any woven fabric of cotton used for garments or other purposes. Following UUmann v. Medden, 38 Fed. Rep. 95.</p> <p>2. Same.</p> <p>The provisions of Schedule X of the tariff act of March 3, 1883, for countable cottons, necessarily import that the cloth shall be homogeneous, so that the number of threads per sguare inch will not differ in different parts of the fabric.</p> <p>3. Same.</p> <p>Where a cotton cloth has figures woven in it upon the loom at the same time with the fabric itself, the count must include the threads of the figure, as well as the threads of the ground-work.</p> <p>4. Same.</p> <p>Madras curtain goods, made of cotton, with figures woven in them in the loom, aredutiable, not under the countable clauses of Schedulelof the tariff act of March 3, 1883, but under the general provision of that act and schedule for “manufactures of cotton not specially enumerated or provided for. ”</p>

<p> .Habeas Corpus. </p>

<p>At La w. On motion in arrest of judgment, and for new trial.</p> <p>Indictment of Drank D. Clarke for depositing obscene matter in the mails. Dor report on demurrer to indictment, see 38 Fed. Rep. 500. For report of charge to jury, see Id. 732.</p>

<p>In Equity. Bill for infringement of letters patent JNo. 252,002, issued January 3, 1882, to C. A. Faure. On motion for preliminary injunction.</p>

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

<p>In Admiralty. Appeal from district court. See 38 Fed. Rep. 515.</p>

<p>At Law. Suit on insurance policies, and motion to discontinue as to part of the sum sued for.</p>

<p>In Equity. Bill for specific performance of contract for sale of land. On demurrers to bill.</p>

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

At Law. This was an action of ejectment to recover the S. W. i of section 9, township 14 N., range 5 E. At the time the suit was begun, the land w'as in the possession of the defendant Clark, under a lease from his co-defendant, the Northwestern Life Insurance Company. Plaintiffs claimed title under an act of congress approved June 3,1856, granting certain public lands to the state of Michigan to aid in the construction of certain railroads. 11 St. at Large, 21.

<p>1. Evidence — Constitutional Law — Treaties.</p> <p>Though. Const. Tex. 1876, art. 13, § 4, forbids that any claim of title to land which issued prior to November, 1S35, be deposited in the general land-office, or recorded or used as evidence, a Mexican grant deposited in the land-office subsequent to 1876, is admissible in evidence, if conceded to be valid, as to nullify it would be to impair the obligation of a contract, and also to infringe the treaty of Guadalupe Hidalgo.</p> <p>2. Notice oe Occupancy.</p> <p>The fact that a person or his ancestor had cattle wandering over, a grant of land 50 leagues in extent affords no presumption that he owned or claimed the land.</p> <p>8. Ejectment — Legal and Equitable Titles.</p> <p>Under Rev. St. Tex. art. 3930, providing that when the terms and conditions of pre-emption shall have been complied with, and the pre-emptor shall have paid the price of the land, etc., the commissioner shall issue a patent to the pre-emptor, one who has filed his location for pre-emption, but has not received a patent, has only an equitable claim to the land, which cannot prevail in an action at law in the federal court against a legal title asserted by another.</p>

<p>Bankruptcy — Sale—Rescission of Order of Confirmation — Practice.</p> <p>After a bankrupt had obtained Ms discharge, under an order of court made upon the petition of his assignees, a claim of the bankrupt’s estate against one B,. was sold at public auction, which sale was confirmed by the court, and the proceeds distributed among the creditors. More than four years thereafter, the bankrupt having in the mean time died, a creditor who had participated in the distribution presented a petition setting forth that the purchaser of said claim bought the same in trust for the bankrupt, and that the transaction was a concealed fraud upon the creditors, and praying that the administrator of the bankrupt be required to show cause why said purchase should not be declared fraudulent, and the sale set aside. Held, that the bankrupt court, after the lapse of time, upon a mere rule upon the administrator to show cause, could not proceed in a summary way to rescind the order of confirmation and set aside the sale, but the petitioner’s remedy was by a plenary suit.</p>

<p>1» Payments — Voluntary Payments.</p> <p>Payments voluntarily made cannot be recovered back upon grounds which would nave constituted a defense, and were known to the plaintiff at the time of payment.</p> <p>3. Shipping — Average Bond — Voluntary Payments.</p> <p>The bark IS., having stranded on tho Jersey coast, was got off by a wrecking company, whose salvage was taxed by a board of underwriters at $15,000. The ship’s agents, at the master’s request, paid the salvors, and the ship afterwards delivered the cargo to the consignees upon their executing an average bond to the ship’s agents, describing them as “ agents or owners of the vessel, ” and conditioned to pay them such sums as should he found to he a charge upon the goods. A general average adjustment was afterwards made, and the libelants, as insurers of several of the cargo owners, paid most of the amount charged against them hy the adjusters; objecting, however, to any commissions, on the ground that the agents had no authority to advanco money on their account. A few days afterwards, the same insurers filed libels to recover back the moneys paid, on the ground that the stranding was caused by negligent navigation: the facts constituting the alleged negligence being known .to the libelants a considerable time before their payments were made. iJeld, that tho ship’s agents having advanced the money to pay the salvage in their capacity as the. agents and representatives of the ship and her owners, and having taken the bond in that capacity, if the stranding was by negligence, such negligence was a defense against any claim upon the average bond, and that the payments made by the libelants, having been made with knowledge of the facts, were voluntary payments, and could not be recovered back.</p>

<p>1. Maritime Liess — 'Wages—Discharge by Sams of Vessel ttítder Execution.</p> <p>A sale by the sheriff of a vessel under execution for debt against the owners does not divest paramount liens, such as the claim for wages of a seaman not guilty of laches.</p> <p>2. Same — Estoppel.</p> <p>His standing by at a sheriff’s sale of the vessel without giving notice of his claim does not prevent a sailor from afterwards enforcing his lien in admiralty against the vessel.</p>

At Law. On motion to remand to state court. Rev. St. U. S. § 639, subd. 3, provides for the removal of suits between citizens of different states from state to federal courts, on the tiling of an affidavit in the state court stating that affiant “has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such state court.” Act March 3, 1887, §2, cl. 4, provides for a removal of such causes into the federal…

<p>Federal Courts — Jurisdiction—“No Man’s Land.”</p> <p>The Indian Territory is defined by Act Cong. June 30,1834, (4 St. at Large, 709,) as all that part of the United States west of the Mississippi, and not in Missouri, Louisiana, and Arkansas, and all east of the river, and not within any state to which the Indian title has not yet been extinguished. The tract of land known as “No Man’s Land” was not then a part of the United States, and many treaties and acts of congress passed afterwards, by implication at least, locate the western boundary of the Indian Territory at the 100th meridian, which is the eastern boundary of “No Man’s Land. ” In others, this tract is clearly, or by implication, recognized as a part of the territory. Act Cong. 1889, (05 St. at Large, 783,) established a United States court with jurisdiction extending over the Indian Territory, bounded so as to include “No Man’s Land. ” Section 17 attached to the eastern district of Texas all of the Indian Territory not otherwise assigned, which included this land, if it was a part of the territory. Held, that the jurisdiction of the United States court for the eastern district of Texas over this tract of land was sufficiently clear to grant a removal to the state of Texas of one indicted by that court for a crime committed in “No Man’s Land, ” and arrested in another state.</p>

<p>Federal Courts — Jurisdiction—Federal Question.</p> <p>In an action to restrain defendants from using bottles and labels in imitation of those of the plaintiff, where the patent for the design of such bottles has expired, the question whether defendants are using the same in good faith, in which case their acts would be lawful, or for the purpose of misleading the public to believe that they are selling the article made by plaintiff, in which case the expiration of the patent would be no defense, does not arise under the laws of the United States so as to give the federal courts jurisdiction.</p>

<p>Fedekat, Courts — Comitt.</p> <p>The circuit court of the United States for the northern district oí Illinois will, under the rule of comity, be governed, as to the infringement of a patent, by prior decisions of other circuits, as to the same patent, whore the proof is the same.</p>

<p>In Equity. On exceptions to answer.</p>

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

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

In Equity. Bill for injunction. The bill alleges, in substance, that the complainant owns and operates a line of steamers for the transportation of passengers and freight on the •St. John’s river, between Jacksonville and Palatka and intervening points on said river; that there is also another line of steamers on said river, engaged in a like business, called “The People’s Line;” that the defendant railway company owns and operates a railroad with branches and connecting…

<p>At Law.</p> <p>Action to replevin a stock of merchandise, under the provisions of a chattel mortgage.</p>

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

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

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

At Law. Trial by the court, a jury having been waived by the stipulation of the parties. Action by Santiago J. Burnham, .a citizen of London, England, who sues for the use of Francisco Gr. Mediavilla, against Daniel Runlde, a citizen of New Jersey, to recover money due on a written agreement.

<p>Corporations — Rights op Btookholbbrs — Injunction against Corporation.</p> <p>A stockholder in a manufacturing corporation filed a bill against the corporation, and all the directors thereof, and another stockholder, charging that the latter defendants had entered into a conspiracy to do an unlawful and fraudulent act, in-furtherance of their individual interests, which would destroy or seriously impair the value of the property of the corporation; that the directors and their co-defendant stockholder held among themselves seven-tenths of the stock of the cor-poi-ation, and that they had procured a vote of the stockholders authorizing the directors to carry out the project, — the bill praying for an injunction to restrain the corporation from consummating the fraudulent transaction. Upon demurrer to the bill, held, that the plaintiff could maintain the bill to protect his individual rights, and that his suitwas not to be defeated because the bill did not show a previous effort on his part to secure redress by an appeal to the directors or stockholders for remedial action.</p>

In Equity. Motion to set off decree in equity against a judgment at law obtained at a former term by defendant against complainant.

<p>Mortgages — Evidence.</p> <p>Defendant, who was executor of his father’s estate, obtained money from a bank on the check of a third person, with which he paid mortgages on his father’s land, and took an assignment thereof to himself, recei ving also a quitclaim deed to the land from the mortgagee. He deposited the mortgages with the bank as security for the check. On its dishonor he obtained money from plaintiff’s assignor with which to pay it, and assigned to him the mortgages, quitclaim deed, and a warranty deed to another tract, as security. The check was also sent to plaintiff’s assignor, but he returned it to the original payee. Held, that the loan was made to defendant, and not to the drawer of the check, and the securities bound defendant and the land.</p>

<p>Public Lands — -Right to Timber Out por Minino Purposes.</p> <p>The defendant, a corporation engaged in mining, reducing ores, and refining bullion, purchased wood and charcoal for use at its reduction works. The cord-wood, and the wood from which the charcoal was manufactured, were cut upon unsur-veyed, public lands, mineral in character, of little or no value except for the mineral therein, and within organized mining districts, or not far remote from known minos. Held, that this was mineral land within the meaning of the act of congress of June 3,1878, per’initting timber to be taken therefrom for “building, agricultural, mining, or other domestic purposes; ” and that defendant could lawfully purchase such wood and coal for said use under the license given by said act.</p> <p> (Syllabus by the Cou/rt.) </p>

<p>At Law. Replevin.</p>

<p>1. Railroad Companies — Lease—Ultra Vires.</p> <p>Under TI. L. Vt. § 3303, authorizing railroad companies to lease and operate the roads of other companies, a contract of lease by which the lessee guaranties the payment of the interest on bonds given in payment for the construct) on of the road, the interest being the same amount, and payable at the samo times as the agreed rent, is valid.</p> <p>2. Same — Guaranty to Pay Interest — Construction.</p> <p>A guaranty to “pay the interest upon the within bond as specified in the interest coupons thereto attached, ” is not a separate promise to pay each coupon, but is a guaranty ot the whole interest to become due on the bonds, and, though each coupon is for less than 8100, the guaranty is not prohibited by it. L. Vt. § 3350, requiring’ the obligations of a railroad company to be for not less than $100 each.</p> <p>3. Sami; — Negotiability op Guaranty.</p> <p>Although the bonds and coupons are negotiable, the guaranty is not, it being neither a bill nor a note, which instruments are alone negotiable under JR. L. Vt. §§ 2002, 2003, and the guarantor may make any defense to an action on his contract bjr the transferee! of the bonds or coupons that he could have made if sued by the original payee in the bonds.</p>

In Equity. Application to establish validity of service in suits against receivers. The defendant company own and operated a railroad, beginning in Missouri, and running across the state of Arkansas into Texas.

<p>Taxation — Erboneous Assessment.</p> <p>Under Act La. 1882, No. 96, § 8, requiring each tax assessor to ascertain the taxable property in his district, both by examination of the records of conveyances and by inquiries, etc., an assessment in the name of former owners, whose title has been divested by bankruptcy sale, and who are not in possession, and an adjudication of the land to the state for non-payment of the taxes, are void.</p>

At Law. In May, 1889, the plaintiffs brought suit in the circuit court of Milwaukee county, to recover an alleged balance of account of $14,999.41, for-'services, materials, and moneys furnished the defendants between October 1,1887, and June 16,1888.

<p>Ati/lchment — Delivery Bond.</p> <p>Accidental destruction of the property by fire is no defense to an action on the delivery bond authorized by Rev. St. Ind. § 931, providing that defendant in attachment may keep the property by executing an undertaking that tho property shall be properly kept and taken care of, and shall be delivered on demand to satisfy judgment, or that he will pay the appraised value of the property.</p>

<p>Glkkk or Court — Action for Ekes---Naturalization Pees.</p> <p>In an action against the United Slates by the clerk of a district coart, to recover fees due him, defendant cannot introduce evidence to prove, in the way of counterclaim, that plaintiff has received and failed to account for fees received by him in the naturalization of aliens, since he is not bound to account for such fees.</p>

<p>At Law. Petition for the allowance of a claim against the United States for fees as commissioner.</p>

<p>GrRAND JtJRT — QUALIITCATIOifS—LSDIOTMESTT.</p> <p>¿Although the law may require grand jurors to bo registered electors, etc., the fact that one of the grand jurors was illegally registered is no ground for quashing an indictment, but is such a defect only as is contemplated by Key. St. U. S. § 1025, which provides that no indictment shall be deemed insufficient by reason of any defect in matter of form which shall not tend to the prejudice of defendant.</p>

<p>Indictments for Selling Liquors without License.</p>

<p>Statutes — Repeal—8k wihn — Desertion—Lakh Vessels.</p> <p>Rev. SI. U. S. § 459(5, provides certain penalties for the desertion of a re.vir -n v ⅜> has been lawfully engaged. Section 5ti01 provides that all acis passeu alter December 1, 1878, are to have full effect as if passed after the enactment of this revision; and so far as they vary from, or conflict with, any of its provisions, they arc to have effect as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. Act IT. S. June 9, 1874, (18 St. c. 2(50,) provides that none of the provisions of the act of Juno 7,1872, (17 St. c. 822,) shall apply to vessel» engaged in the coastwiso trade, except the coastwise trade between the Atlantic and Pacific coasts, or in the lake-going trade, touching at. foreign ports or otherwise, etc. .Relit, that, this act. repeals so much of Rev. St,, tit. 58, including section 4596, as is composed of the provisions of act June 7,1872, so far as it applies to vessels on the Great Lakes.</p>

<p>1. Criminal Law'— Confessions — Evidence.</p> <p>A sworn confession, made long- anterior to trial, and not preliminary thereto, is admissible in evidence.</p> <p>2. Same — Defendant as Witness — Impeachment.</p> <p>Where a defendant in a criminal case becomes a witness for himself, under act Cong. Alaroli 16, ISIS, making him a “competent” witness, his credibility may be impeached.</p> <p>8. Pension Agents — Ildeu at. Pees — Rev. St. TI. S. § 5485.</p> <p>It is a violation of Rev. St. U. S. § 54S5, which forbids any agent or attorney or other person instrumental in prosecuting any claim for pension directly or indirectly to contract for, demand, receive, or retain any greater compensation for his services than $15, to contract to render such services for more than $15; to demand more than that sum for such services after rendering them without a contract; to retain more than that sum out of the cheek sent to the pensioner; to receive more than that sum for such sei-vices in pursuance of any agreement, direct or indirect, express or implied, or of any legal or moral obligation; but it is not a violation of the section to receive more than $25 for such services, wholly as a gratuity, and without demand.</p> <p>4. Same.</p> <p>Any scheme or contrivance by which, under the guise of a loan, a mortgage, or a gift, or other dealing, the claim agent retains more than the legal fee, is a violation of the section.</p>

<p>IOTBINGEMENT OB' PATENTS — PllIOK STATE OF THE AbT— BUTTONS</p> <p>Letters patent Np. 357,237, February 8,1887, to M. G-. Shipman, was for an invention consisting of a fastening device for garments, leather, etc. The button member consisted of a stud, having a head, neck, and outwardly spreading base, and of a central stem, which may be integral with the stud, or a separate part. The stem was adapted to pass through the stud, and through the fabric on which the base of the stud rested, and to bo clinched on the opposite side of the fabric, with or without a washer, thus fastening the button member of the combination firmly to the fabric. None of the drawings show a detached stem, but it is in all cases integral with the stud. An earlier patent to one Platt consisted in a tubular stud, with a flange at right angles to the base, and of an inner tubular member, having a flange, and called an “eyelet.” The parts were united by placing the outer tube on one side of the fabric, with its flange resting thereon, and inserting the inner tube through the fabric into the outer tube, and compressing the parts together. Defendants used a contrivance similar to the Platt patent, except that the stem differed from the eyelet of the Platt patent slightly in form, and in proportion of its diameter to that of the stud. Held that, in view of the prior state of the art, defendants did not infringe the Shipman patent.</p>

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

<p>1. Patents fob Inventions — Friction Clutches — Infringement.</p> <p>Letters patent No. 308.872, for an improvement in friction clutches, granted to William D. Brock on December 9, 1884, construed, and field not to be infringed by friction clutches manufactured under and in accordance with letters patent No. 312,122, granted to Harry W. Hill on FobruarylO, 1885.</p> <p>2. Same — Constkuotion of Claim.</p> <p>Brock’s first claim, as originally filed, was Cor “ the combination, with a shaft, and a loose pulley adapted to run freely on said shaft, of a clutch rigidly secured to said shaft, having two inversely moving radial jaws, adapted to engage, one upon the periphery, and one against the interior, of the pulley flange, said jaws being connected, by suitable mechanism, with a laterally moving sleeve and shifting lever, whereby they may be simultaneously opened and closed as said lever is moved towards the right and left; ” but, the examiner having ruled that the words “suitable mechanism” rendered the claim “vague and indefinite,” Brook struck them out, and substituted therefor “lever J, link, I, and lever, F. ” Held, that the constituents thus introduced into the claim are material; that the claim should be construed strictly against the patentee, and in favor of the public; and that a mechanical connection between tho clutch jaws and the shifting lover is an essential part of the combination.</p> <p>8. Same.</p> <p>Brock and Hill were contemporary independent, improvers of an old mechanism, the subject of many prior patents, and perfected by progressive steps, and each is entitled only to his own specific form of device.</p>

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

<p>Patents for Inventions — Infringement—Preliminary Injunction.</p> <p>A provisional injunction will not be granted, against tbe infringement of apatent whose validity is dependent upon the result of an appeal in aformer suit for its infringement, where it appears that defendant has been carrying on its business in good faith, and in ignorance of the alleged infringement, and that a stoppage would be an irreparable injury, while plaintiff has an adequate remedy in damages.</p>

<p>1. Patents for Inventions — Profits from use — Findings of Master.</p> <p>In an action to recover profits arising from the use of a patent solvent, the master in chancery found that defendants used the solvent for treating pyroxyline, and during the same period treated it with other solvents, hut, owing to a defect in the pyroxyline, its treatment with the various solvents resulted in a product which could not be sold at a profit; but that, if defendants had not used the solvent in question, they would have used others; and that, by reason of the patent solvent being cheaper, defendants saved a sum which complainant was entitled to recover as a profit. Meld, that the conclusion of the master was correct.</p> <p>2. Equity — Report op Master — Findings op Fact — Waiver.</p> <p>The reason for the rule requiring objections to the findings of a master in chancery to he first made to him on the draft of his report does not fully obtain where the objection is to the principal finding of fact, as he probably would not have changed his conclusion; but it is no hardship to require of the dissatisfied party that he so state his objections, or be deemed to have waived them.</p> <p>8. Same — Conclusions op Law.</p> <p>Where the master is correct in his findings of fact, but errs as to conclusions of law, the rule requiring exceptions to his report is not applicable.</p>

At Law. On demurrer to petition. This was a qui tam action, brought under the third paragraph of section 4901 of the Revised Statutes of the United States, and the charge complained of was that the defendant marked certain wagon stake ¡Dockets with the words “patent applied for.” The petition contained 201 counts, a penalty of $100 being demanded on each count.

<p>CoPYItIGHT — INPBIX&KMENT—PRELIMINARY INJUNCTION.</p> <p>Plaintiff contracted with an authoress to copyright and publish her work, to use Ids best efforts to secure a speedy sale, and to pay her 12 cents per copy sold. She agreed to furnish the manuscript, and agreed not to cause to he published anything which might injure the sale of the book. Plaintiff sought to restrain the publication of the same work, emanating from her since, in a newspaper. She was not made a party to the suit, and it appeared that the sale of the book had quite or nearly ceased, and that plaintiff had not continued his efforts to sell. Meld, that the preliminary injunction would be refused.</p>

<p>1. Shipping — Limited Liability Act — Constitutional Law — Inteknal Commerce.</p> <p>The act of June 19, 1886, extending the benefits of limited liability legislation to vessels engaged in inland navigation, having been assailed for alleged unconstitutionality, held, that the act is valid, in view of the power of congress to regulate commerce, because the law amended, excepted from its operation inland navigation only, and not internal commerce, as insisted.</p> <p>2. Same.</p> <p>The amendment extended the operation of the law, not to internal commerce, but to inland navigation. So much for the direct purpose of the act.</p> <p>8. Same.</p> <p>If internal commerce is affected, it is. incidentally merely. The purpose of the legislature being legitimate, and warranted by the constitution, it is wholly immaterial to the consideration of the validity of its action that somewhere it has a casual or contingent effect upon the domain of state legislation.</p> <p>4. Same.</p> <p>Even though the -subjects of this extended limitation of liability, or the territory in which it is effective, are partially within the region of state control, yet, where the subjects are separable, and are partly under the national control, the act will be sustained by the courts wherever the power of congress extends, and as to all those objects to which it attaches: and this rule is easily applicable in this case.</p> <p>5. Same — Application to Savannah River.</p> <p>As to the Savannah river, it is a public navigable stream. The voyages of the Katie and her cargo are interstate in character, and the jurisdiction of congress is undoubted.</p> <p>6. Same — Congressional Powers — Admiralty.</p> <p>The act is warranted also by the admiralty clause of the constitution, and the power of congress to modify by statute the application of admiralty doctrines.</p> <p>7. Same.</p> <p>The entire purpose of the limited liability enactments was to encourage investments in shipping, and they may be extended wherever the admiralty eourts of the United States have jurisdiction.</p> <p> (,Syllabus by the Gowrt,) </p>

<p>In Admiralty. On exceptions to libel by defendant A. Conover.</p>

<p>1. Shipping — Bill op Lading — Shortage.</p> <p>The clause, “1 do not know the weight, ” inserted by the master in abill of lading given for “about 200 tons, ” easts on the consignee the burden of proving that he did not receive all that was delivered to the ship under the bill, though less than 200 tons was received by him, and, failing to prove this, he cannot recover.</p> <p>2. Same — Duty op Gabbier.</p> <p>Where two lots were delivered to a ship under different bills of lading, each containing the clause, and no evidence was given to show how much was originally delivered under each bill of lading to the ship, the consignee of one lot cannot recover without showing that less was delivered to him than was delivered to the ship untier his bill of lading, although ho shows that the consignee of the other lot received the whole quantity mentioned in his bill of lading.</p>

<p>In Admiralty. Libel for injury to cargo. On appeal from district court. 39 Fed. Rep. 288.</p>

In Admiralty. Libel for damages. On appeal from district court. 27 Fed. Rep. 136. FINDINGS OF FACT. (1) The schooner Edwin I. Morrison, owned by the claimants, was chartered December 19, 1883, by written charter-party, to the libelant for a voyage from Weymouth, Mass., to Savannah, Ga., to carry a complete cargo of guano in bags and (or) bulk for a price agreed upon.

<p>In Admiralty. Libel for freight and expenses. On appeal from district court.</p>

<p>Admirai/tt — Appeal—Review.</p> <p>A finding of the district court, on libel for damages by collision, that both vessels were in fault, will not be disturbed on appeal, when no new proofs are taken, and the evidence was conflicting, and the finding turned on the credibility of witnesses who were examined in the presence oí the district j udge, though the tosti ■ mony seems to warrant another conclusion.</p>

<p>In Admiralty. Libel for damages. On appeal from district court. 88 Fed. Rep. 856.</p>

In Equity. This is a suit in equity for the rescission of a contract for the purchase of real estate, upon the ground both of mutual mistake and fraud in respect to the quantity of the lands sold. The contract in question was as follows: “Agreement made this 29th day of February, 1884, by and between O. 0.

<p>Gifts — 'Inter Vivos — Husband and Wife.</p> <p>Plaintiff, living in England, separated from her husband. The latter came to America, married defendant, who did not know oí his former marriage, and died, leaving children by both wives. Some time before his death ho transferred his property, without consideration, to defendant, and, though he continued to have the use "of it for his support, it did not appear that he could dispose of it without defendant’s consent. Plaintiff never lived in the state in which the husband lived in this country, so that the husband’s conveyances to defendant did not require plaintiff’s signature. Defendant worked to help accumulate the property, and nursed the husband for several years, while he was disabled. Held, that plaintiff and her children had no claim "on the property thus transferred to defendant.</p>

<p>GAKOTSHSiraT — EQCTTy—lNTEKPIVPUlH.'K.</p> <p>Ib attachment and garnishment proceedings, it appeared that the garnishee had funds in his hands, received from defendant, in which the garnishee claimed no individual interest, and which he offered to pay to the party adjudged entitled thereto. Defendant’s wife interpleaded, and claimed that the garnishee received the fund under an express trust for her benefit. Plaintiffs claimed a lien by the attachment proceedings on the fund, and alleged that defendant’s attempted disposition of it for his wife’s benefit was in fraud of creditors. It was not alleged that the garnishee knew of such fraud. Held, that the cause would be transferred to equity, to determine the rights of the contesting claimants, and relieve the garnishee.</p>

<p>Sams — Delivbhsr—Reasoxauj.e Time.</p> <p>Plaintiffs received from defendants an order to ship them a machine, to be used in threshing, “at once, or as soon as possible, ” for which defendants wore to pay upon its arrival, and wore notified that the threshing season had already begun. The machine at that time was at a point but 28 miles from its destination, a letter from plaintiffs to the railroad agent at that point should have reached him in t wo days, and there was a daily freight train between the two points. One week after they received the order, plaintiffs were notified that the machine had not reached defendants, and that the season was nearly over. The order from plaintiffs to the railroad agent at the place where the machine was, to ship itto defendants, reached him the next day, but defendants did not receive the machine until four days after that. Held, that plaintiffs failed to comply with their contract in regard to the time of shipment, their delay being unreasonable.</p>

At Law. Action by John V. Farwell against Anthony F. Seeberger, collector of customs, to recover excessive duty alleged to have been levied on certain goods.

At Law. Action by Daniel Castro against Anthony F. Seeberger, collector of customs, to recover the excessive duty claimed to liave been levied on certain tobacco imported by the Roper & Baxter Cigar Company, and sold to plaintiff.

In Admiralty. Action by Leary, owner of a rail known as the “Joggins Raft,” against the steamer Miranda, for negligence in towage, resulting in the loss of the raft. Cross-action by the owner of the Miranda for towage money.

<p>In Admiralty. On application for distribution of proceeds.</p>

<p>In Admiralty.</p> <p>Action for the value of a cargo of tin lost on respondent’s lighter.</p>

<p>1. Neutrality Laws — Forfeitures.</p> <p>Rev. St. U. S. § 5S88, provides for tbe forfeiture of vessels violating neutrality-laws, “one-half to the use of the informer, and the other half to the use of the United States. ” Held, that where a vessel is forfeited and sold under this provision, and one-half of the proceeds is paid to the United States, the other half remaining in the custody of the court, the latter half will not he paid to the United States, even after the lapse of many years, whore it does not appear that it will not be needed to satisfy a judgment,for some claimant as informer, and it is immaterial that Rev. St. U. S. § 8689, provides for refunding moneys “received and covered into the treasury before the payment of legal and just charges against the same. ”</p> <p>¾. Same.</p> <p>Even if no other claimant over appears, such fund is not the property of the United States, under the statute.</p>

<p>At Law. On motion to docket cause.</p>

<p>1. Equity — Biel or Review — Pending Appeal to Supreme Court.</p> <p>The circuit court cannot entertain a bill of review to vacate a decree, from which the petitioners have prayed, and been allowed, an appeal to the supreme court, though they aver that they do not intend to perfect their appeal in the supreme court.</p> <p>2. Same — Decree Entered in Pursuance op Mandate.</p> <p>Where the circuit court has, under and in pursuance of a mandate from the supreme court, entered a decree, it cannot entertain a bill to review such decree, either for errors of law apparent or for newly-discovered evidence, without leave first had from the supreme court.</p> <p>8. Same — Erroneous Conclusions prom Evidence.</p> <p>A bill of review cannot be entertained to correct supposed erroneous deductions or conclusions from the evidence.</p> <p>4. Same — Failure to Aver Performance.</p> <p>The proposed bill must aver performance of, or inability to perform, the decree sought to be reviewed.</p> <p>5. Same —Fraud and Perjury.</p> <p>A bill oí review sought on the ground of fraud and perjury will not be entertained, whore it appears that the alleged fraudulently procured and porjured evidence was not controlling- in the determination of the ease on its merits.</p> <p>8. Same — Allegations op Defense on Iíerits.</p> <p>in order to obtain relief on the ground of fraud, it must be averred and shown that there was a valid defense on the merits.</p> <p>7. Sami: -1.ewe or Court.</p> <p>Though a bill of review on the ground of fraud in obtaining the decree may be Bled without leave of 1 ho court granting the decree, where that ground of relief is united in the same bill with others, which require such previous leave, the bill cannot be separated and leave granted as to part and refused as to the others.</p>

<p>1. Equity — Pleading—Bill—Answek.</p> <p>A prayer that each of the defendants may be required to answer unto the premises, in a bill for relief, being a good general interrogatory, complainants are entitled to an answer to every material allegation of their bill.</p> <p>S. Same — 35xceptions.</p> <p>The doctrine that exceptions to the answer for insufficiency are confined to cases where complainants are compelled to rely on defendants to prove their caso, and are not properly taken where all the matters concerning which complainants ask discovery are of record, does not apply to bills for relief.</p> <p>S. Same — Faetition—Discovekt.</p> <p>In a bill for partition, averments that complainants and defendants are tenants in common of the land sought to be partitioned, being in support of complainants’ case, defendants are bound to discover their title in answer thereto.</p>

<p>At Law. On motion to settle bill of exceptions.</p>

<p>BailRoad Companies — Walking on Track — Negligence.</p> <p>In an action for personal injury, it appeared that plaintiff was walking on defendant’s railroad track, and stepped off a few feet, when a train passed, and he saw the shadow of something, and was felled to the ground; that a severe wound was found on his head, and a stick of wood, similar to the sticks used on the locomotive, was found imbedded in the earth near where he fell. There was no other evidence that the wood was thrown from the locomotive, or how it was thrown, or that it struck plaintiff. The speed of the train was about 60 miles an hour. Held that, as there was no contractual relation between plaintiff and defendant, there was no presumption of negligence against the latter, and a verdict should be directed for the defendant.</p>

<p>At Law. Action to recover back customs duties.</p> <p>The plaintiffs, in 1885, imported certain goods consisting of linen tapes, corset laces, and braids, the latter being commercially known as "bobbins.” These articles were classified by tire defendant, the collector at the port of New York, under Schedule J of the tariff act of 1888, (Tariff Index, new, 386,) providing for “flax or linen thread, twine and pack thread, and all manufactures oí flax, or of which flax shall be the component material of chief value, not specially enumerated or provided for in this act, forty per centum ad valorem.” The plaintiffs paid the duty under protest, claiming that the goods were dutiable under a preceding paragraph (Tariff index, new, 384) of the same schedule as “brown and bleached linens, ducks, canvas, paddings, cot bottoms, diapers, crash, huckabacks, handkerchiefs, lawns, or other manufactures of flax, jute, or hemp, or of which (lax, jute, or hemp shall be the component material of chief value, not specially enumerated or provided for in this act, thirty-five per centum ad valtrrem.” It was shown on the trial that the tapes were linen, or composed chiefly of flax fibres; that they were woven fabrics having a warp and weft; that the corset laces were made of linen threads braided, as were also the other “braids” or “bobbins.” When the plaintiffs rested, the defendant’s counsel moved the court to direct a verdict for the defendant; citing Arthur's fk’rs v. Butterfield, 125 U. S. 70, 8 Sup. Ct. Rep. 714; Poioersv. Barney, 5 Blatchf. 202; TJ.ebenroth v. Robertson, 33 Fed. Rep. 457; Rev. St. U. S. § 2499, as amended by act of March 3, 1888.</p>

<p>At Law. Action to recover back customs duties.</p> <p>The articles involved in the suit were imported by the plaintiffs from German}^ into the port of New York in 1887 and 1888, and were assessed for duty by the collector at 10 per centum ad valorem, under tariff act of March 3, 1883, Schedule N, “Sundries,” (Tariff Index, new, 482,) as “rattans and reeds, manufactured, but not made up into completed articles.” The plaintiffs protested, claiming that the goods were duty free under the same act, “Free List,” (Id. 770,) and brought this action to recover the amount of the duties paid. Rattan was shown to .be the stem of a plant grown in the East Indies, of solid, tough, fiber, and of various lengths. It was proved by witnesses on the trial that the raw rattan was submitted to a mechanical process by which the outer bark or enamel was cut off in strips. This bark or enamel, thus produced, was called in the trade “chair cane.” The inner core or pith of the rattan, which remained in a cylindrical form after the first process of cutting, was generally known in the trade, at and for some time prior to the passage of the act of 1883, as “round reed.” It was the crudest form in which such “reeds” were known to the trade dealing in them. Defendant’s witnesses proved that the article known as “square reed” might be obtained by a first process of cutting from the raw rattan, or might be made by squaring the “round reed,” by a second process of cutting with knives operated by machinery; that the “oval reed” was always produced from the “round reed” by a second process of manufacture or cutting; and that the “flat reed” was invariably the product ot a second process of cutting, either from the “square reed” or from the “round reed.” The samples offered in evidence, and the testimony, proved that the plaintiffs’ importations were such “round,” “square,” “oval,” and “flat reeds.” All these varieties of “reeds” were used in certain manufactures in the United Slates without any further process being applied to them than cutting into proper lengths. In other manufactures the “reeds” were bleached and trimmed before being made into completed articles.</p> <p>Defendant’s counsel moved the court to direct a verdict for tbe defendant on the grounds — 'First. That tbe articles in question were “rattans manufactured,” and not “reeds,” according to the meaning of that word in the English language, viz., natural aquatic grasses, with hollow, jointed stems. Second. That if they were known in the trade as “reeds,” still the evidence showed that they were manufactured, and not a natural product or raw material, and in either case were dutiable at 10 per centum ad valorem, and cited Stockicell v. U. S., 3 Cliff. 284; King v, Smith, 4 Chi. Leg. 1ST. 281: U. S. v. Four Cases of Cutlery, 1 Hunt, Mer. Mag. 167; Lawrenrev. Allen, 7 IJow. 793. Plaintiff's’counsel moved tbe court to direct a verdict for the plaintiffs; relying chiefly upon Hartrcvnft v. Wiegmann, 121 II. S. 609, 7 Bup. Ct. Rep. 1240, and cases therein cited.</p>

<p>Customs Duties — Cuassimoatios—Chinese Rush.</p> <p>Unmanufactured rash, imported fj-om China, cured, but not split or dyed, held to be ‘-straw,” within the common acceptation and definition of that word as'used in this country, and therefore free of duty, under the tariff act of March 3, 1883, as “straw unmanufactured. ”</p>

<p>Application for Habeas Corpus to LacoMbe, Circuit Judge, by Charles Palliser, charged with an offense in the district of Connecticut.</p>

<p>Indictment for Carrying on the Business of a Retail Dealer in Oleomargarine without a License.</p>

<p>In Equity. On bill for infringement of patents by the Morgan Envelope Company against the Albany Perforated Wrapping Paper Company and others.</p>

<p>Patents eok Inventions — Res Ad judicata.</p> <p>The question of the validity of a patent is res adjudicata, where it has been adjudicated by another judge of the same circuit, and the parties to the two actions are the same, and the records substantially identical.</p>

<p>In Equity. On bill for discovery, accounting, and injunction. Application for preliminary injunction.</p>

<p>Tradb-Makks — Ineriximments.</p> <p>Complainant ruts up its hair-crimpers in packages, in a rod pasteboard box, on the cover of which is a white label with a black border, and in the center the head of a woman, with hair curled, together with the words “Madam Louie, Common'Sense Hair Crimper. ” Defendant dealt in crimpers packed in a similar manner, in red boxes with white labels, and in the center of the label is the head of a female, surrounded by the words, “The Langtry. Elegantes. One gross, So. 1, Black, Hair-Crimpers. ” Complainant’s crimpers were smaller than defendant’s, and muon heavier, and the wrappers were unlike in length, and in. the words printed thereon. Defendant had the prior right to the use of the white laljel and the central vignette, and the labels were dissimilar in form and general appearance. There was no evidence that any one was ever misled by any resemblance between the two. Heidi that defendant did not infringe complainant’s trade-mark.</p>

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

<p>TBA.BH-MABKS — INJEISGEMIÍNT—IS.TU'SÍO'riOÍÍ.</p> <p>The use of a capsulo of the samo color as that used by complainants on bottles of champagne will not bo enjoined, where there is no attempt at deception thereby, and where other labels used by defendant are so unliko those of complainants that no mistake could arise between them.</p>

<p>1. Admiralty— Concurrent Actions in Rem and in Personam.</p> <p>A suit in rem and a suit in personam,, arising out of the same cause of action, may be brought concurrently in the same court.</p> <p>2. Same — Application por Stay op Proceedings.</p> <p>When a suit in rem and a suit in personam ai’e brought concurrently for the same cause of action, the question whether one shall he stayed until the remedy is exhausted in the other is wholly a question of practice, to be determined with reference to the convenient administration of justice.</p> <p>8. Depositions — De Bene Esse — Further Examination.</p> <p>Where, on taking testimony de bene esse, the cross-examination of witnesses has been ended in ignorance of facts material to a further cross-examination, the court, up'on proper affidavits, can make such order as may he just.</p>

<p>At Law. On demurrer to replication.</p> <p>Trespass by the Briggs Excursion Company against Walter M. A. Fleming, for alleged wrongful seizure and detention of plaintiff’s property. On August 12, 188G, the defendant filed a libel in rem, in the United States district court for the district of New Jersey, against the steamer General Sedgwick and the barge Republic, in a cause of damage, civil and maritime, for the breach of an executory contract in the nature of a charter-party. On the same day process of attachment and monition was issued to the marshal, by virtue of which, on the following day. that officer seized and took in custody the vessels named, being the property of the Briggs Excursion Company, the plaintiff in this action, and held them until released on bond. The allegations of the libel were, in substance, that the vessels were owned by the plaintiff corporation, and that the plaintiff and defendant had entered into a contract, which is recited at length in the libel, to the effect that the Briggs Excursion Company had agreed to charter the two vessels to the defendant for a day’s excursion; that when the day arrived for the fulfillment of the contract the vessels were not ready, and the defendant was compelled to hire other boats, and was put to great loss and damage, amounting, in all, to $1,282. On the return of the writ the plaintiff appeared, by its proctor, in the district court, only to make exceptions to the libel, and object to the jurisdiction of the court, and after a bearing the libel was dismissed for want of jurisdiction. See The General Sedgwick, 29 Fed. Rep. 606. The plaintiff thereupon brought this action for an illegal seizure. The defendant has filed two pleas to the declaration: (1) The general issue: (2) justification, in that the writ was issued by the order of the district court. To the first plea there is a joinder; to the second plea there is a replication that the writ was illegal and void, for the reason that the court had no jurisdiction of the matters alleged in the libel. Demurrer to replication, and joinder.</p> <p>cited 1 Wat. Trcsp. 391; Id. 510; Kerr v. Mount, 28 N. Y. 659; Chapman v. T)yett,ll Wend. 31; Smith v. Shaw, 12 Johns. 257; Hayden v. Shed, 11 Mass. 500; Codrington v. Lloyd, 8 Adol. & El. 449: Po.rsons v. Lloyd, 2 W. Bl. 845; Wehle v. Butler, 61 N. Y. 245; Miller v'Adams, 52 N.'Y. 409.</p> <p>cited Hen. Adm. 337; The Adolph, 5 Fed. Rep. 114; Thompson v. Lyle, 3 Watts. & S. 166; The Evan golismos, 12 Moore, P. C. 352; The Cathcart, L. R. 1 Adm. & Ecc. 314; The Kate, 10 Júr. (N. S.) 444; Turnbull v. Strathnaver, L. R. 1 App. Cas. 58; 2 Add. Torts, § 856; Leigh v. Webb, 8 Esp. 165; Wyatt v. White, 5 Hurl. & N 371; Grove v. Van Duyn, 44 N. J. Law, 661.</p>

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

<p>CjonniSTOBr-—Between- Steam and Sail—Fatjatre to Hack.</p> <p>Libelants' lighter was boating down theEast river, and coining down the stream, astern oí her. (¡ame the respondents’ steamer, D. The lighter wont about when off Seventeenth street, on the New York side, and ran some distance out into the river, when the steamer collided with her, striking her on the port side. The steamer saw the lighter in time to have avoided her. The lighter was prevented from run ning further towards New York by reason of an eddy near the shore. Held, that the collision was caused by the steamer’s failure to stop aiid back with reasonable promptness, and the steamer was answerable for the lighter’s damage.</p>

<p>1. Maritime Iuejts — Ixsttraxoe Premiums.</p> <p>Admiralty law gives no maritime lien on a vessel for unpaid premiums on insurance thereon.</p> <p>8. Same.</p> <p>Though a state law confers a lien on a vessel for unpaid premiums on insuranco thereon, such lien is subordinate to maritime liens for supplies and repairs, and for damages from negligent towage.</p>

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

<p>In Admiralty. On appeal from taxation of marshal’s fees.</p> <p>Certain casks of cement, brought into the port of New York on the bark Dictator, were taken into custody by the collector of the port for non-payment of duties, and were stored in a bonded warehouse. A libel was subsequently filed against the property by the master of the Dictator to recover freight, on which libel process was issued. No claimant appeared for the property.</p>

<p>In Admiralty. Appeal from taxation of costs.</p>

<p>Admieaity—Tendee—Costs.</p> <p>A payment of money into court, on plea of tender, attbe filing of the answer, will not afiect the question. of costs, unless it is specified how much is tendered as payment of the claim, and how much for costs.</p>

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

<p>In Equity. On motions to modify order overruling a demurrer, (89 Fed. Pep. 132,) and to file a second amended bill. ></p>

<p>1. Dobmant Judgment — Towns.</p> <p>Code Civil Proo. Kan. § 445, providing tbat “if execution shall not be sued out within five years from the date of any judgment” the judgment shall become dormant, applies to judgments against towns, as mandamus is equivalent to execution.</p> <p>2. Same — Bevxvor.</p> <p>Under section 440, authorizing dormant judgments to be revived in the same manner as is prescribed for reviving actions before judgment, a judgment against a town which has become dormant may be revived in the manner prescribed.</p> <p>8. Same — Limitation—Suspension oe Period.</p> <p>Section 428 provides that, unless the parties to an action which has abated, consent to a revivor, notice of application'therefor must be served in the same manner as a summons. Section 21 provides that “if, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed. ” Hold, that a period of time during which the town had no qualified officers on whom process could be served, and purposely •refrained from qualifying them to avoid the judgment, should be omitted from the period of limitation for reviving the judgment, the creditor having exercised due diligence.</p>

At Law. Motion for judgment notwithstanding the verdict on point reserved. Assumpsit against tbe Western Union Telegraph Company in common pleas No. 4 of city of Philadelphia, removed by defendant to United States cii’cuit court for eastern district of Pennsylvania, to recover license fees for poles and wire privilege erected in Philadelphia by defendant corporation.

At Law. This is an action to recover possession of lot 52 of section 18, township 17 N. of range 11 E. Mt. Diablo meridian. The plaintiff claims title by conveyance from the Central Pacific Railroad Company.

At Law. Action in ejectment. The plaintiffs, tlie board of trustees of tho town of Huntington, in the county of Suffolk, in tlie state of New York, sued the defendant, Theodore S. Lowndes, in the supreme court of the state of New York, under section 1502 of the Code of Civil Procedure, to recover possession of their lands under water in Huntington bay, claiming title thereto under throe colonial patents or grants, to-wit, the Nicolls patent, of November 30, 1666, the Dongan…

At Law. On motion for a new trial. On the trial of this case there was a verdict of $4,000 for the plaintiff.

On Demurrer to Indictment. Defendants were each indicted for sending through the mails letters which were sealed, but contained language confessedly indecent and obscene. There were demurrers upon the ground that the sending of such letters was not prohibited at the time of the mailing of these particular letters, which was before the passage by congress of the acts of June 18 and September 26, 1888, on that subject. The cases were heard together.

In Equity. Hearing upon bill, answer, and proofs. Bill by Lewis S. Watson against Edgar Wilson and John William Binder, trading as Watson & Binder, for infringement of plaintiff’s shirt-ironing machine, patented February 12,1884, No. 293,290.

<p>Patents fob Inventions — Infringement—.Beet-Fasteners.</p> <p>Claim 3 of letters patent No. 383,35S, issued July 3,1883, to Henry Blake, is for “a belt stud having cross-heads and a bar or shank flattened approximately at right angles to said heads and hent near its end, so that said heads lie flat upon the belt. ” This device was meant to be an improvement over the G-. W. Blake stud, covered by letters patent No. 31,859, which was simply punched out of sheet metal, and the actual improvement consisted (1) in a stronger shank, the strength being imparted by swaging, or by flattening and'compressing in some way; and (3) in a shank curved at the ends. Held, that the claim was not infringed by a stud which was made by punching alone, and which has received no other flattening than such as is naturally produced by the punching process.</p>

<p>In Admiralty, libel for wages and advances</p>

<p>1. Maritime IjIens—Italian Vessel—Master’s Wares.</p> <p>The master oí an II alian ship has a lien on the vessel for his wages, which is recognized in this court.</p> <p>⅞. Same—Master’s Advances—Priority—Bottomrv Bond.</p> <p>The lien for wages and advances of the master of an Italian vessel takes precedence of the lien ota bottomry bond, on which the master is not personally liable.</p> <p>Same—Material-Men—Priorities.</p> <p>The lien of material-men, for the value of whoso services the master is personally liable, is superior to a lien for the master’s wages.</p> <p>Same.</p> <p>The lien of material-men is superior to the lien of a bottomry bond when the services of the material-men have tended to make the ship more valuable, or when delay in enforcing the bottomry has tended to induce the services of the material-men.</p> <p>Same—Election oe Remedies.</p> <p>Where material-men have proceeded under the twelfth admiralty rule against the vessel instead of the master, such election does not destroy their right to proceed against the master for the same debts.</p> <p>The Aína, ante, 269, distinguished.</p>

<p>In Admiralty. Hearing on libel and answer.</p> <p>Libel by Bridget Welsh, in her own behalf and that of her minor children, against the steam-ship North Cambria, under Acts Pa. April 15, 1851, and April 26, 1855, to recover for the death of her husband, Peter Welsh, who was killed on May 25, 1889, while employed as a laborer on said steam-ship, by the falling upon him of a tub of iron, through the negligence of employes not fellow-servants of deceased.</p>

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

<p>At Law. On motion for security for costs.</p>

<p>At Law. On motion for commission to take testimony.</p>

<p>At Law. On demurrer to complaint, on the ground that the facts stated do not constitute a cause of action.</p>

At-Law. Action to recover back duties. The plaintiffs in this suit, on the first day of September, 1887, imported from Dresden, Saxony, into the port of New York, a certain article invoiced as “egg yolk.” This article was classified for duty by the defendant, as collector of customs at that port, as a non-enumerated manufactured article, under the provision therefor contained in section 2518 of the United States Revised Statutes, as amended by the act of March 3, 1883, and…

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

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

<p>1. Patents ire® Inventions — Reissue oe Letteus — Expansion ov Claims.</p> <p>In letters patent No. 277,245. granted May 8, 1883, to Joseph T. Dunham, the first claim is for “a combined tag and envelope, made substantially as herein shown and described, and consisting of an envelope having' at one end a flap of sufficient size to cover one side of the envelope:” in such patent, as reissued, No. 10,488, June 10, 1881, the first and second claims arc respectively for “a combined tag and envelope, * wherein the ilap which closes the month of the envelope is fastened, ”etc., and for “a combined tag and envelope, * * * the flap having an eyelet hole, which, when the flap is folded down on the envelope, coincides with an eyelet hole in tile envelope, ” etc,. Meld that, the latter claims, being so expanded as to be no longer limited to a flap of sufficient size to cover the envelope, as was the case in the original patent, are invalid, as including structures and improvements neither described nor claimed in the original.</p> <p>3. Same — Extent of Claim — Pkiob State ot the Aut.</p> <p>In letters patent No. 331,118, granted November 24, 1885, to Joseph T. Dunham, the first and second claims are, respectively, for “an envelope having a flap provided with a reinforced hole, and having a similar hole in the front ply of its body, the said holes constructed to register and coincide when the flap is folded down, whereby the end of the hack ply of the envelope body, which extends entirely across the latter, is clamped and removably secured; ” and for “a mailing tag and envelope having a flap folded over on and secured to the inner face of the front ply of the body, the said flan being also constructed to take over the free end of the back ply of the body, as shown, whereby the mouth of the envelope covered by the said flap is secured against accidental opening. ” Held, that in view of the prior state of the art, as shown by patent No. 81,926, granted September 8,1868, to Sigmund Ullman, and other prior structures, the claims must be restricted to the form of envelope described in the patent, which is so constructed that the flap can be opened and the contents inspected without tearing the envelope or breaking the fastenings.</p>

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

<p>Patents fob Inventions — Infringement—Preliminary Injunction.</p> <p>A preliminary injunction to restrain the manufacture of an alleged infringement of a patent will not be granted when the patent has never been adjudicated, and there is inadequate proof of public acquiescence, and the infringement is denied; and defendants have been engaged in the manufacture for a long time without opposition, and have an extensive business, while the complainants have owned the patent for only three months, and defendants are not shown to be pecuniarily irresponsible; and the effect of an agreement not to manufacture the patented article, sig'ned by one of defendants, is doubtful at least as to the other defendants.</p>

<p>Bill for Injunction and Account for Infringement of Trade-Mark.</p>

<p>In Admiralty. On appeal from district court.</p>

<p>1. Towage — Negligence.</p> <p>The tugs Willie, Winnie, and B., all under the control of the latter, and all belonging to the same owners, took in charge a fleet of canal-boats, loaded with coal, to be towed from Bouth Amboy, through the Kills, to New York. The wind was N. E. at the start, increased afterwards, and was nearly a gale when the tugs reached the mouth of the Kills. They proceeded on, however, and the canal-boats were after-wards mostly lost- in the upper bay, through the heavy sea. the sinking of some, the pounding of others, and the general breaking up of the tow. IIeld, that it was negligence to leave the Kills and to attempt to cross the bay in such weather; that the tugs ought to have ascertained the facts as to the weather before leaving the shelter ot the Kills and going into the bay, or to have turned about, as they might have done, near the mouth of the Kills, and have taken refuge at Port,!., in the Kills; and that the owners of the tugs were liable for the loss of the tow.</p> <p>2. Same — Limitation of Liauxmtt of Owner.</p> <p>In section 4283 of the Revised Statutes the words “such vessel” include all the tugs belonging to the same owner engaged in the work of towing at the time when the fault is committed by the common captain or head of all the tugs; and all such must, be surrendered, as a condition of the limitation of the owner’s liability. In this case, held, that both the B. and Winnie must be surrendered, but not the Willie, inasmuch as she had been previously detached, and was no part of the moving force at the time when the negligence arose that caused the loss.</p> <p>3. Same — Deviation—Partial Surrender — Damages—Proximate Cause.</p> <p>The Willie had been ordered to detach the canal-boat C. from the rest of the above tow, to be taken to Newark, and not out into New York bay. The Willie negligently omitted to detach the O., and she was taken by the B., with the rest of the tow, into New York bay, and lost. Held a wrongful deviation, upon an unau thorized trip, as respects the C.. arising through the Willie’s negligence, and such a wrongful act and breach of contract as would make the Willie’s owners responsible for ;he C.’s subsequent loss, even if it had arisen from subsequent additional negligence on tbe part of tugs belonging to different owners; and that the owners of the Willie, being liable for the full amount of the C.’s loss, could not limit their liability under the statute, as respects the C. and her cargo, except on the surrender of the Willie to that extent.</p> <p> (Syllabus l>y the Court.) </p>

<p>Shipping—Damagb to Cargo—Stranding.</p> <p>A schooner, hound from Mattawan to New York, took the more difficult course through the Kills, instead of going outside and through the Narrows. While beating through the Kill van Kull she was overtaken and passed by a tow, to avoid which she luffed, lost her headway, and was carried by the eddy tide on the rocks, and damaged her cargo. In an action by the cargo owner to recover for such damage, held, that the schooner took the additional risks to be expected in the passage of the Kills; and, as the channel where she went ashore was wide enough for her to have kept oil the rocks, notwithstanding the presence of a passing tow, and as the tide and the eddy were well known, the stranding was not unavoidable, and the schooner was answerable for the damage.</p>

<p>In Admiralty. Cross-suits for freight and damage to cargo.</p>

<p>1. Collision — Injuries to Passengers and Seamen — Libel—Parties.</p> <p>Seamen and passengers sustaining injuries by collision may be made co-libelants with the owners of the vessel, even after an interlocutory decree, no sufficient reason to the contrary appearing.</p> <p>2. Same — Fellow-Servants.</p> <p>Seamen and officers are fellow-servants, as respects the details of navigation on board ship. Each takes the risk of the other’s negligence, and has no claim for damage against bis own ship or her owners for collisions occasioned thereby. On collision by the faults of both vessels, when both are before the court, the damages must be apportioned between them; and the seamen on board one vessel can recover only half their damages against the other, because they are disabled by their relation to their own ship and her owners from any recovery against the latter, directly or indirectly.</p> <p>3. Same! — Measure oe Damage to Passenger.</p> <p>Passengers recover full damages, the one-half of which is deducted from the amount payable to the other vessel for her own loss.</p> <p>4. Same — Measure oe Damage to Seamen.</p> <p>On claims of seamen for personal injuries for being thrown into the water by collision, only the actual damage from physical injury, or consequent- loss of employment, should be allowed.</p>

<p>1. Collision — Damages—Cost of 'Vessel.</p> <p>In assessing- damages on total loss by collision, though the cost of construction is competent evidence where no market value is ascertainable, the whole cost should not be given as damage where the vessel could be duplicated for a less sum, and the cost tost!tied to Includes various changes and improvements.</p> <p>2. Same — Loss of Profits — Personal Contract.</p> <p>Upon a tola] loss, though compensation is allowed for the profits which would have' been realized upon an existing charter of the vessel, because the charter is Itself thereby lost, this rule does not apply to profits on a personal contract, in which any other fit vessel might be used.</p> <p>3. Same.</p> <p>The libelant used three dredges in carrying out a contract with the government for excavaiing<!320,000. more or less, cubic yards of material” In (ledney’s channel; and, after one dredge was sunk, continued the work for 60 days thereafter, when they wore stepped by the government upon the excavation of ”30-1,000 cubic yards. Held, that the libelant was entitled to recover only *ie value of the dredge from the time of the loss, with interest; that it could not recover for any loss of profits, (1) because there was no such charter of the dredge lost as prevented the substitution of another dredge; (3) because the contract was substantially fulfilled, within the discretion of the government, and the libelant had therefore no certain right to excavate more than it did.</p> <p>4. Same — Cost of Raisin» Wrecked Vessel — Evidence.</p> <p>The libelant employed wreckers to raise its vessel, to be paid a proportion of her value if raised, upon a written contract executed the day before work was commenced. The wreckers testified to a parol modification that they were to be paid the value of their services up to S7,500, if the same could be recovered from the defendant vessel; but no reference was made to the existing contract, and the libel-ant did not confirm the same. Held, that evidence of the change of contract was insufficient, and that the written contract should prevail.</p>

<p>In Admiralty. Action for damages by collision.</p>

<p>Moüon to Suppress Summons and Dismiss for Want of Jurisdiction.</p> <p>Action by First National Bank of Grand Haven, Mich., against John Forest.</p>

<p>Removal op Causes — Right to Remove.</p> <p>On appeal by a tax-payer to the district court from an allowance of a claim by the county supervisors, as provided by Comp. St. Neb. p. 855, § 1010, the appellee, being the party who is bound to establish his claim, must be regarded as plaintiff, and, as such, has no right of removal to the federal court on account of local prej udice, under the act of March 3, 1887, which gives such right to the defendant only.</p>

<p>1. Removal os' Causes — Separable Controversy.</p> <p>In an action by resident tax-payers against count!' officials and bondholders, one of whom is a non-resident, to restrain the collection of a tax levied for the payment of alleged illegal bonds, and to cancel the bonds, there is no separable controversy with relation to the county officials and bondholders.</p> <p>3. Same.</p> <p>The citizenship of the county officials will not defeat ’the right of removal on the part of the non-resident bondholder, as the former must be deemed to be interested on the same side of the controversy with the complainants. Following Harter v. Kernochan, 108 U. S. 563.</p> <p>8. Same.</p> <p>But the bonds not being all owned by the non-resident defendant, but by several, one or more of whom were residents, and the record not showing that the bonds owned by the non-resident belonged to a different issue or series from those owned by resident bondholders, there was not a separable controversy pending between complainants and the non-resident which would authorize a removal of the cause.</p>

At Law. This is an action upon a policy of fire insurance. The action was originally begun in the circuit court for Tuscola county, was tried in May, 1886, and a verdict returned for the plaintiff. The policy provided that if the insured should procure any other or further insurance upon the property insured, without the consent of the company written upon the policy, it should become void.

<p>1. INSURANCE — RllFOBMATION OF POLICY.</p> <p>Where the agent of an insurance company agrees to insure property for the benefit and protection of the owner, and receives the consideration for such contract of insurance, but. in writing out the policy, fails to make it express the real contract entered into, equity will reform the policy, if tho company is bound to make good the contract which tho agent in fact made in its behalf.1</p> <p>8. Same — Agents.</p> <p>Where an insurance company issues a policy of insurance in pursuance of a contract made by one assuming' to be its agent, it is estopped to deny tho agency.</p> <p>3. Same.</p> <p>The company is bound, not only by the contract appearing upon tho face of the policy, but by that actually made by such agent.</p>

<p>Ill Equity. Bill for an injunction.</p>

<p>1. Boundary Line between Louisiana and Mississippi.</p> <p>The line of demarkation run. fixed, and marked by Andrew Ellicott, commissioner on the part of the United States, and William Dunbar, commissioner on the part of Spain, in 1798, was the true boundary line between the territory of the United States and that of Spain prior to the purchase of the latter territory, and is, and ever since has been, the boundary line between the states of Mississippi and Louisiana, irrespective of any mistakes or errors in running and marking said line.</p> <p>2. Public Lands — Presumption oe Patent prom Lapse oe Time.</p> <p>John Jenkins, plaintiff’s father, purchased the land in controversy in 1831, and immediately went into actual possession, under a deed describing metes and bounds, and l’cmamed in possession until 1855, when he died. His executors under his will continued in possession until 1867, when this land was partitioned to plaintiff, who has held possession ever since. Held, that the law presumes that a patent issued ior the same from the United States, and that the conveyance, coupled with the possession, vested in the plaintiff a valid legal title to the land embraced within the calls of the deed, in the absence of proof to the contrary.</p> <p>8. Boundaries — By Consent.</p> <p>When the boundary line between the lands owned by adjoining land owners is unknown, they may by parol fix a line between each party, each party mutually agreeing thereto, and" acting thereon, which is binding between them; but, if the line is known, then the transfer of any portion of the iand on one side of the line from the one to the other must be in writing, to be valid.</p> <p>4. Adverse Possession — Rights oe Grantee.</p> <p>The adverse possession of land by the grantor cannot avail the grantoo, beyond the boundary line described in the deed.</p> <p> (Syllabus by the Court.) </p>

<p>1. Carriers — Or Goons — Shipping Contract.</p> <p>Plaintiff made a shipment on a road connecting with defendant’s, and took a receipt from the agent, which stated that the company was “not accountable for weight, number, or condition of the packages. ” 1'ollowing this was the name of plaintiff, dost,illation of the goods on defendant’s road, and the words, “Valuation limited to ¡85.00 per 100 pounds In case o£ total loss. ” On the back was printed a statement that “when a valuation as agi'ood upon shall be named upon this shipping’ receipt, it is distinctly understood that such valuation shall cover loss or damage from any cause whatever;” also a printed statement that the owner of the goods, in accepting the receipt, agrees to be bound by all its stipulations, written or printed, as fully as though signed by him. Plaintiff then signed and delivered to the company a paper stating that he had voluntarily shipped at a lower rate than the general'tariff, on condition that he release the company from all liability for loss or damage, and containing a formal release to the company, and all other railroad or transportation companies to whom the goods should be delivered for transportation. This release -was attached to the manifest, went along with the goods, and was received by defendant. The shipping receipt was not under seal, or witnessed, and was retained by plaintiff. The goods were received by defendant at a freight rate agreed on between the roads. Haiti, that the shipping receipt and re-leasewore sonarateand independent papers, prepared and signed at the instance of the company "receiving the goods; and that defendant could not, in its own interest, elect whieh’of the two should be treated as too shipping contract.</p> <p>2. Same--Hiupimm; Receipt.</p> <p>The shipping receipt, not having been executed as a contract under seal, and not having been regarded and treated as one by either of the railroad companies, and having been put forward as the rate of indemnity on a total loss when there was only a partial loss, cannot be made the basis of plaintiff’s recovery.</p> <p>3. Sami: — Limiting Liabimty.</p> <p>As the reloaso executed by plaintiff provided for a complete and unconditional exemption of tiie carrier from liability on account of loss or damage to properly in the course of transportation, it is void, as against public policy, and plaintiff is entitled to recover for the full value of his goods lost.1</p> <p>4. Same — Liabii.itv op Connecting Lines.</p> <p>When the unconditional release came into the hands of the defendant’s agents, together with the goods shipped, it was notice to defendant of the illegality of the transaction, and its liability must be determined by the principles of the general law. .</p>

<p>1. Bill of JteCErTious — Is Feiihea-l Couiit — Filing.</p> <p>A billoS exceptions, solar as regards the doty of the attorney taking it should' he considered as filed when taken í o the clerk’s office and placed in the hands of the proper officer for filing. Hhe form of indorsement placed on it by the clerk is i m ¡material.</p> <p>S. Same.</p> <p>Key. St. TJ. S. § 914, requiring the pleading, practice, and forms in the circuit court to conform as near as may he to those of the courts of the state in which it is held, does not govern ¿he preparation and perfecting of a bill of exceptions In Ip Iran, Co., 9 Sup. Ot. Sap. 150, followed.</p> <p>3. Safcs — Time or Pebfectíng.</p> <p>la Iho federal courts the rule is that the bill of exceptions must he signed at the term in which judgment was rendered, not the term at which trial was had.</p>

<p>1. Customs Duties — Appraisement—Fobisign Money — Shanghai Taels.</p> <p>Small masses of silver, not always uniform in size, nor regular in shape, but conforming generally to an oval shape like that of a hat turned, upside down, or of a Chinese shoe, marked by an officer selected by the consensus of Chinese bankers with characters indicating the fineness, and the number of taels, or the weight of the silver therein, and circulated in China as the only money of account, are coins of China; and the value of a tael of the sanie is a proper subject, of annual estimation by the director of the mint, and of proclamation on the 1st day of January by the secretary of the treasury, within the meaning of section 8304, Rev. St. ü. S.</p> <p>2. Same — Proclamation as to Value.</p> <p>If the value of a foreign coin bo estimated by the director of the mint upon the basis used by him in estimating the values of other foreign coins of the same metal, proclaimed by the secretary of the treasury on the 1st day of January of any year, and be proclaimed by the secretary of the treasury during a subsequent month of the same year, the director, in the absence of any proof to the contrary, will be presumed to have performed his entire duty, and to have made such estimation of the value of such foreign coin at the timo required by said section ¡¡3<M, and the proclamation, during such subsequent month, by the secretary of the treasury of its value so estimated, is a compliance by him with the requirements of that section.</p>

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

<p>1. Post-Office — Robbery from Mails — Decoy Letters.</p> <p>The use oí test or decoy letters by inspectors of mails, for the purpose.of ascertaining the depredators upon the mails, is proper and justifiable, as a means to that end.</p> <p>2. Same.</p> <p>The abstracting, from a letter in a registered mail package, of a silver certificate, by a railway postal clerk, after he has received it as such, and while in his possession, to be conveyed by him as other registered mail, though placed there to give him opportunity to take it, if he so chooses, is a violation of section 5167.</p> <p> (Syllabus by the Court.) </p>

<p>1. IXFOKMATIOV — iMfAMOUS OFFENSES.</p> <p>Any offense involving imprisonment in a general state-prison or penitentiary is infamous, and cannot be prosecuted by information, under the iirst clause of the fifth amendment Const. U. S., which declares that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand juiy. ”</p> <p>2. Same — Right to J?ii,e Information.</p> <p>The l-jg'ht to filo an information is not a prerogative of the prosecutor’s office. The district attorney must first have leave of court; and the court may require him, before granting leave, to bring the accused before the court to show cause, if cause there be, against the filing of the information.</p>

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

<p>1. Patents fok Inventions — Infkinoement—Wash-Boatcd.</p> <p>Letters patent No. 168,252, granted to E. S. Heath, September 28,1875, for improvements in wash-boards, consisting of a grooved flexible frame, two corrugated zinc plates, two cross-bars at the upper end of the plates, and a screw-rod extending across the frame at the lower end of the plates, and connected therewith by a lap-joint, is not infringed by a wash-board having two straight legs, not flexible, and a straight cap secured to the legs by tenon and mortise joints, with a single cross-bar at the upper end, and without a screw-rod.</p> <p>2. Same — Patentability.</p> <p>Letters patent No. 187,842, issued to David I. George, February 27, 1887, for improvements in wash-boards, being for substantially the same invention as that described in said Heath patent, is void for want of patentable invention. Following Pfanschmidt v. Mercantile Co., 32 Fed. Rep. 667.</p> <p>3. Same — Constktjction of Claim.</p> <p>Where a patentee amends his application so as to exclude an improvement described in a rejected application cited by the patent-office, and obtains a patent on such amended application, his assignee cannot enjoin, as an infringement, the use of the derdce described in the rejected application, even though the same was improperly cited.</p>

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

<p>Collision—Slight Blow—Delay in Suing—Old Boats.</p> <p>The libelant’s canal-boat, while lying at a dock, was hit by another boat in tow of the tug S. O. 3?.; but it appeared that the blow was not a hard one; that libel-ant's boat was very old; that nothing was found broken in her at the time; that she continued to run lor several months without repairs, and was then only caulked a little; that the impinging boat was not even scratched by the contact; and that the libel in this suit was not filed until SI months after the occurrence. Held, that under such circumstances there was too much doubt of any substantial damage to warrant a decree, and that the suit should be dismissed, but without costs.</p>

<p>St ' tutes — Repeat.—Jurisdiction or Circuit Comm — Suits to Recover Penalties.</p> <p>Act Gong. Peb. SO, LSS5, (S3 St. 333,) prohibiting the importation of contract labor, provides in section 3 that every person violating its provisions shall forfeit for each offense the sum of SI,000, which may be sued for and recovered as debts of like amount are now recovered in the circuit courts of the United States, and that it shall be tile duty of the district attorney of the proper distinct to prosecute every such suit at the expense of the United States. Held that, as the suit to recover such penalty is oí a criminal nature, this provision is not repealed by the act of August 13," L88S, (25 St. 431.) providing in section 1 that “the circ.uit courts of the United States shall have original cognizance ⅞ - * of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, ” etc.</p>

In Equity. On demurrer to tlie second amended bill. This is a bill filed by three parties claiming to be a portion of the heirs at law of Oliver Teall, deceased, and entitled to three-fifteenths of the property in question, against, many defendants, said to be 336 in number, to set aside a conveyance from said Oliver Teall, by his attorney in fact, Davis Devine, to A. L. Rhodes, and a conveyance from A. L, Rhodes to said Davis Devine, made in 1857, on the ground of fraud,…

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

<p>In Admiralty. Libel for personal injuries.</p>

<p>1. Mines and Mining — Location—Discovery.</p> <p>It is requisite to a valid location and to the ownership of the title to a valid lode mining claim, that there should he a discovery of ore, gold or silver bearing mineral in rock in place, showing a well-defined crevice, a discovery at least 10 feet deep from the lowest rim rock thereof, which discovery of mineral must be at the point claimed and designated, or made the point of discovery by tho locators of said claim, and so designated in tho location certificate relied upon by them in the making of said location.</p> <p>¾. Same — Location Stakes.</p> <p>A location stake must be erected at the discovery of said claim, with a plain sign or notice thereon, containing the name of the lode, tho name of the locator, and the date of the discovery.</p> <p>8. Same — Marked Boundary on Surface.</p> <p>The claim must have its boundaries so marked upon the surface as to bo easily traced by means of six substantial stakes, one set at each corner of said claim, one, at the center of each side line thereof; which said stakes shall be ol substantial character, and sunk in the ground, newed on the two sides of the corner stakes which are, in towards the claim, and the side stakes hewed on the side which is in towards the claim.</p> <p>4. Same — Location Certificate,.</p> <p>There must be made and filed by the locators of said claim a location certificate which shall contain tho names of the locators, tho date of the location, and such a description of the claim by reference to some natural object or permanent monument as will identify tho claim; also, the number of foot in length claimed on each side of the center of tho discovery shaft, and tho general course oí tho lode.</p> <p>5. Same — Action for, Trespass — .Joinder of Cdaims.</p> <p>In a suit for trespass, defendants cannot, after suit brought, unite several claims, each having a portion of the outcrop, for tho purpose of asserting the right to follow a vein upon its dip, when said rig-ht does not exist within the said claims, considered separately.</p> <p>6. Sami; — Abandonment and Belocation.</p> <p>If ground once included within the location of a lode mining claim be abandoned, and a new location made thereon, as abandoned ground, said location dates only from the relocation thereof as abandoned ground, and does not relate back to or obtain any rights on account of the location which has been abandoned.</p> <p>7. Same -Vein or Lode.</p> <p>A vein or lode is a body of mineral or of mineralized rock in place, within defined boundaries, in the general mass of the mountain.</p> <p>8. Same.</p> <p>Ore disseminated at intervals, or found in channels, chutes, cavities, pockets, or other irregular occurrences at intervals in quartzite, without ore connections between the same, is not a lode, ledge, or vein, within the moaning of Key. St. CJ. S. js 28⅞ allowing the owner thereof to follow the same beyond his side lines upon its dip.</p> <p>9. Same, — Continuity of Vein.</p> <p>The vein must be continuous only in the sense that it can be traced by tho miner through the surrounding rocks. Slight interruptions of the mineral-bearing rock are not alone sufficient to destroy the identity of the vein; nor would a short partial closure of the fissure have the effect to destroy the continuity of the vein, if, alittle further on, it appeared or recurred again, with mineral-hearing rock in it.</p> <p>10. Same.</p> <p>Where both mineral and fissure close, come to an end, and are not found again in that direction, or, if found at all, are so far off from the tracing of the vein, or so diverted from its original trend or line, or appear under different geological conditions and surroundings, the jury would be warranted in finding that the continuity was broken, and that the lode, therefore, was not the same.</p> <p>11. Same — End Lines.</p> <p>End lines as designated in the location certificate are not necessarily, in law, the end lines, unless they actually cross the actual outcrop of the vein.</p> <p>IS. Same — Trespass—Measure of Damages.</p> <p>The measure of damages in an action for trespass upon a mining location is the value of the ore taken by the defendants from within the side lines of plaintiffs’ claim prior to the institution of suit.</p> <p>13. Same.</p> <p>If the jury should believe from the evidence that defendants, after they had knowledge that plaintiffs contested their right to mine within the side li nes of plaintiffs’ claim, thereafter mingled the ore taken from within plaintiffs’ side lines with other ore, with the purpose of preventing or obstructing the ascertainment of its quantity and value, or in willful disregard of plaintiffs’ rights, they would be warranted in construing such conduct against defendants in determining the damages.</p> <p>14. Same.</p> <p>If, on the other hand, they believed that defendants, in the honest belief that they were of right pursuing their vein of ore, and without any design to cover up the quantity or,value of ore taken, and in the usual mode of handling and marketing such ore, they suffered it to mingle with other ore, or failed to keep it segregated, then they should ascertain the approximate value of the ore, as best they could, from all the facts before them.</p>

Motion to Attach for Contempt. This is a motion to attach the mayor, comptroller, treasurer, and common council of the city of Elizabeth, for contempt for failure to obey a peremptory writ of ■mandamus.

<p>1. Partne.rship — Actions a&ainst — Liability in Solido.</p> <p>In Louisiana, in a suit against a commercial partnership, where citation is issued, directed to and served on the firm, and an order is afterwards made lor citation to issue to the individual partners, and an answer is filed by the defendants, a judgment may be rendered in solido against the individual partners.</p> <p>2. Same — Service op Citation on Agent.</p> <p>Under Code Prac. La. art. 198, which requires citation in suits against a partnership to bo served on one of -the firm in person, or at their place of business, by delivery to their clerk or agent, service cannot be made upon an agent elsewhere than at the firm’s place of business.</p> <p>8. Judgment — Revival—Courts—Jurisdiction.</p> <p>Under Const. La. 1879, which abolished the several district courts in the parish of Orleans, created one civil district, court for said parish, and provided (article 301) that all causes ponding in such district courts should be transferred to said civil dist -ict court, the latter court, has jurisdiction to revive unsatisfied judgments rendered in said district courts, since a suit is “ pending ” until the judgment rendered therein lias been satisfied.</p> <p>4. Same — Citation—Curator ad Hoc.</p> <p>Under Rev. Civil Code La. art. 3547, which authorizes the revival of judgments upon issuance of citation, and provides that if the defendant be absent the court may appoint a curator ad hoc, upon whom the citation shall be served, a curator ad hoc may, by answer, acknowledge the service of citation for the revival oí a judgment.</p> <p>5. Same.</p> <p>Under said statute, the revival of a judgment without the issuance of a citation, or the acknowledgment of service by the curator ad hoc, is a nullity.</p>

On Motion for New Trial. See 34 Fed. Rep. 211. The petitioner brought suit in the United States circuit court, S. D. Alabama, against the United States for fees due him from the United States as one of the commissioners of that court.

<p>1. Jury — Jury Commissioner — Qualipication.</p> <p>21 U. S. St. at Large, 48, requiring the court to appoint a jury commissioner, who shall be a citizen of good standing, and shall reside in the district in which the court is held, and who shall be a well-known member of the principal political party in the district opposing that to which the clerk belongs, is directory merely, and not mandatory.</p> <p>2. Same — Selecting prom Part op District.</p> <p>Rev. St. TJ. S. ,§ 802, permitting jurors to be returned on an order of court from parts of a district, a plea that the jurors were drawn from an alleged division of the district, and not from the entire territory within the district, is bad, there being no injury .or prejudice averred.</p> <p>8. Same.</p> <p>A plea is also bad under this statute, which, in effect, set forth that the defendants are and were citizens of L. county, in said district; that the offense charged was committed, if at all, in said L. county; and that none of the names placed in the jury-box from which the grand jury was drawn were citizens of said L. county.</p> <p>4. Same — Selection with Regard to Political Appellations.</p> <p>Defendants’ second plea was to the effect that the jury commissioner and the clerk, in selecting names to be placed in the jury-box from which the grand jury which found the indictment against defendants was drawn, did not comply with the law, and select such names without regard to party affiliations, but did select such names with regard to the party affliliations of the persons selected. No injury or prejudice was averred. Held that, while the plea was defective in form and substance, the matters set forth were so pleaded as to put the court on inquiry, and the demurrer thereto would be overruled, and the district attorney ordered to traverse the same.</p>

<p>Habeas Corpus — Conviction before United States Commissioner.</p> <p>Upon an application lora writ of habeas corpus by one jailed, in default of bail, upon a conviction before a United States commissioner, under a warrant charging counterfeiting the coin of the United States, the court will not inquire into the merits of the decision of tho commissioner, but only as to whether an offense is charged, and whether the commissioner has power to inquire into and adjudge the complaint.</p>

<p>1. Patents for Inventions — Electric Lamps — Patentability.</p> <p>The claims oí letters patent No. 219,208, issued September 2,1879, to Charles P. Brush, for improvement in electric lamps, consisting of two or more pairs of carbons in combination with mechanism to separate such pairs successively and independently, so that the light will be established between but one pair at a time, while the other pairs are maintained in a separated relation, and so that when their members are in contact the current may pass freely through all said pairs alike, substantially as shown in the specifications, are valid, not being for mere functions or results, but being limited to the means described or its equivalent.</p> <p>2. Same.</p> <p>The claims of said patent for the lifter and clamps which move the carbons, “substantially as and for the purpose shown,” is for such lifter and clamps in combination with the other mechanism described in the specifications, and is valid.</p> <p>8. Same — Infringement.</p> <p>Said patent is infringed by a lamp so constructed as to cause two pairs of carbons to be successively separated in identically the same way as the Brush lamp, though the infringing device uses a hinge clamp, instead of a ring clamp, to hold the carbons.</p> <p>4. Same — Anticipation.</p> <p>Letters patent No. 147,827, issued February 24, 1874, to Matthias Day, Jr., for an electric lamp in which each carbon is split vertically for a slight distance from the outer end, but is so rigidly connected at the clamp end as to act solely as a pair of separate carbons, and not as two or more independent pairs of carbons, is not an anticipation of the invention described in said Brush patent.</p> <p>5. Same — General Specification — Disclaimer,</p> <p>Where a patentee describes certain mechanism in his specifications, and then declares that he does not limit himself to such mechanism, or its equivalent, but refers in his claim to the mechanism “substantially as shown” he need not disclaim the broad language of the specification in order to validate his patent, since the scope of the patent is measured by the terms of the claim, and the general statement in the specifications is mere surplusage.</p>

<p>1. Shipping—Damage to Cargo—Libel in Rem—Third Parties—Charterers—Fifty-Ninth Rule.</p> <p>In an action in rem against a chartered ship for negligent damage to cargo, the charterers may, on the claimants’ petition showing cause therefor, he made parties defendant, on the analogy of the case of The Hudson, 15 Fed. Rep. 162, and of rule 59 in admiralty.</p> <p>2. Same—Practice—New Remedies.</p> <p>It is the duty of courts of admiralty, under their inherent and statutory powers, to adapt their practice and proceedings to new emergencies, so as to secure, as far as possible, the speedy, complete, and convenient administration of iustice.</p>

<p>1. Towage — Stuaxdixg—Impbudext Stakt — Ixcompetext Helmsmax.</p> <p>The respondent hired the libelants’ scows to be used In moving the Roekaway life-saving station about two and a half miles to the eastward along the beach, [n coming out from the inlet into the open sea, the tug grounded on a falling tide, and could not be got off; and before the next tide the scows, with the house upon them, having been anchored in the inlet, were driven by a storm on the shore, and wore lost. The start was made about or. m., the water being smooth at the time; but the wind for some time previous had been to the north-east, and there were other indications of a coming storm. The tug, in coming out of the inlet, was in the immediate charge of a helmsman who was not acquainted with the handling of tugs, and had not attempted to steer her before that day. Held that, the navigation out of the inlet with such a tow being attended with'known difficulties, and with lia bility to stranding, it was negligence in the respondent’s agents to start on the eve oí an approaching storm, which would prevent extricating the tow in case of stranding; that the helmsman was incompetent at the time of grounding; and that for both reasons the respondent was answerable for the loss of the scows.</p> <p>2. Same — 'Warranty op Seawokthixess op Tow.</p> <p>In consequence of the pounding of one of the scows after they were driven ashore she sprang aleak, so as to sink in the sand, and not rise with the rising tide; thus preventing the possible extrication of the stranded boats. The scow was sufficient for navigation in ordinary weather, and for the purposes for which it was let. Held, that the letting imported no warranty of her sufficiency to withstand the stranding without leakage.</p>

<p>1. Towage — Negligence oe Tug — Presumption.</p> <p>Though a tug is not an insurer oí her tow, if the tow is run against a wharf in clear weather, negligence in the tug is legally presumed.</p> <p>2. Collision — With Pier, — Evidence—Credibility.</p> <p>The libelant’s coal-box was one of a tow of seven boats in charge of the tug S. J. W., bound around the Battery and up the East river. The tow was unwieldy, and moved through the water at the rate of only about one mile an hour, and was carried with the tide against the end of pier 45, about a half a mile above the Brooklyn bridge. The excuse of the tug was that a schooner sailing past them, on the right, prevented the tug from going as near the Brooklyn shore, a little below the bridge, as was necessary in order to avoid the effects of the cross-tide towards the New York shore. The pilot testified that the schooner, with a ferry-boat coming in the opposite direction a little later, threw him from four to six hundred feet t o the westward of the usual course, and that the subsequent collision was thereby unavoidable. Held, that the circumstances showed that the pilot’s estimate was a gross exaggeration, and that there would have been no difficulty in keeping the tow from pier 45, had the tug ported sufficiently in time. The estimates of witnesses, and statements as to the effects of tide, though uncontradicted, go for nothing, when contrary to the laws of nature and to well-known facts of navigation otherwise appearing in the testimony.</p>

<p>1. Marine Insurance — A ction on Policy — Parties.</p> <p>Upon a marine insurance policy issued to “A. 13., upon account of whom it may concern, in case of loss, to be paid to him or order, ” where the insurance was efr fectedi'or the benefit of the libelant, the owner at the time, held, that tho suit was rightly brought in the name of the libelant, who was the insured under the policy.</p> <p>3. Same — Pleading—Insurable Interest.</p> <p>The libel should show insurable interest in a vessel at the time the policy purports to take effect.</p> <p>3. Same — Seaworthiness.</p> <p>It being settled in this circuit that seaworthiness is presumed, a libel on a marine policy need not allege seaworthiness. What need not he proved need not be averred. This 1-ule promotes simplicity and certainty as to the real issue intended to be tried. The plea of unseaworthiness, if that issue is desired to be raised, oornes more properly from the defense.</p>

<p>In Equity. On motion to stay proceedings.</p> <p>Suit by John E. Brown and W. B. Carter against the Cranberry Iron <& Coal Company.</p>

<p>In Equity. Bill to foreclose.</p> <p>In the matter of the intervening petition of Thomas B. Cabeen, Robert J. Cabeen, and George Seaton.</p>

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

<p>1. Contracts — Public Policy.</p> <p>A declaration averred that W., being solvent, and in no expectation of insolvency, in order to secure an extension for payment of a debt, and to obtain credit in a further amount, gave plaintiff judgment notes for $10,000; that, by agreement of plaintiff and W., the notes were deposited for plaintiff’s benefit -with T.; that defendant, who was W.’s attorney, and knew his financial condition, and was present at the time as W.’s counsel, agreed that, “in case W. should become involved in financial troubles, or endeavor to secure other creditors, ” he would notify T., in order that he might cause judgment to be entered on the notes; that five months afterwards, by the advice of defendant, W. made an assignment under the laws of Illinois for the benefit of his creditors, under which assignment his creditors received only 95 per cent, of their claims; that for a month prior to the assignment defendant knew W. was in financial difficulties, but failed and refused to notify plaintiff or T., thus preventing judgment from being entered upon the notes. Held, that the declaration showed a right of action against defendant, and was not de-murrable on the ground that the agreement between plaintiff and defendant was contrary to public policy.</p> <p>2. Insolvency — Pbeeerences.</p> <p>The common-law right of an embarrassed or insolvent debtor to prefer one or more creditors to the exclusion of all others still exists in Illinois, except as restricted by the statute governing voluntary assignments.</p>

<p>Coiu>ora.tioks—Insolvency—Rights of Okkmtoks.</p> <p>Where an insolvent corporation reorganizes under-a new charter and a different name, its property is still liable for its debts, though transferred to the new corporation for a valuable consideration.</p>

<p>On Appeal from Clerk’s Taxation of Costs.</p>

<p>1. Insurance* — Contract to Insure.</p> <p>A promise to insure, made by one whose business is to insure, is performed by issuing a nolicy. A like nromise, make by one whose business is not to insure, is performed by the promisor procuring a policy in some responsible company to the full insurable value of the property.</p> <p>2. Same — Agreement by Carrier to Insure.</p> <p>Hence, where a transportation company agreed to carry a certain cargo, and to insure the same, it was held to have substantially satisfied its obligation by causing the cai’go to be insured to the full amount of the loss sustained.</p> <p>8. Same — Estoppel.</p> <p>Plaintiff intrusted certain cargoes of rails to the Erie Railroad, to carry to Buffalo, and forward thence to Duluth by water. Defendant contracted with the agent of the road at New York to carry them from Buffalo to Duluth, and to insure them. It procured certificates of insurance to be issued, and deposited them with the agent of the road at Buffalo, of whom it received the cargo, buthad no direct dealing with the plaintiff. Meld, that the receipt and retention of these certificates by the agent of the road, without objection, estopped the plaintiff from objecting to the form of the policies or the amount of the insurance.</p> <p> (Syllabus by the Court.) </p>

<p>Customs Duties—Classification—Skins Dressed.</p> <p>Skins dressed -with, the hair on, and sewed together in pieces 18 inches wide, and from .36 to 48 inches long, and used indifferently as rugs, mats, sleigh robes, and overcoat trimmings, are dutiable as “skins dressed and finished, ” under clause 461 of Heyl’s Arrangement of the Customs Act of 1883, and not as “rugs, ” under clause 378 of said Arrangement, which expressly refers to wool and woolen goods.</p>

At Law. Suit to recover duties alleged to have been illegally exacted by the defendant, collector of the port of New York.

<p>Patents por Inventions — Construction op Claim — Soldering Machines.</p> <p>Claim 1 of letters patent No. 109,577, granted to William B. Bishop, November 29, 1870, lor an improvement in machines for soldering can-caps, which describes “Tne ring or cup shaped soldering tool, ⅝ for soldering the caps upon cans, substantially as herein shown and described, ” must be limited to a machine arranged to work in the manner described in view of the prior English patents to Carson, Forbes, and Hebert for hand soldering tools, with the part corresponding to 0 “ring or cup-shaped. ”</p>

<p>In Equity.</p> <p>Bill by Elise Imhauser against Otto E. Hausburg, for infringement of letters patent No. 170,443, issued November 30, 1875, to William Im-hauser, for watchman’s time detector.</p>

<p>Ill Equity. On final hearing. Bill by Samual H. Berryman to restrain the infringement of patent No. 276,044.</p>

<p>In Equity.</p> <p>This was a bill in equity to recover for the infringement of letters patent No. 201,946, to De Witt C. Reed, for an improvement in harrows. His invention is described as consisting in a novel means for adjusting a spring tooth so as to give to its point a greater or.less depth of cut, by making that portion of the tooth adjacent to the frame curved, and resting on a curved seat, securing it thereto by a clip, or its equivalent. The only substantial defense in the case was non-infringement. The cause was submitted to the court upon pleadings and proofs.</p>

This was a common-law action for the infringement of letters patent No. 45,201, issued to one Wyekoff, November 22, 1864, for an improvement in gas and water pipes.

<p>Patents foe Inventions — Infringement—Rateroati Switches</p> <p>It having been heretofore held by the court (83 Fed. Rep. 499) that letters patent No. 117,198, granted to Thomas Newman, complainant’s assignor, July 18, 1871, for an improvement in switches for horse railroads, were valid, held, that the device used by defendants in this suit was an infringement of such patent, and that the new evidence adduced in this case called for no modification of the previous decree.</p>

In Admiralty. Action for damage by collision. The suit of Fabre against the Cu-nará Steam-Ship Company was to recover the value of the Iberia. The other suits were by insurers of cargo lost with the Iberia.

<p>•Iii Admiralty. Cross-libels for collision.</p>

<p>CoM-isiorr — Damages—Remote and Proximate Cause — TJnseawortht Boat.</p> <p>A canal-boat loaded with ice was caused to leak by tbe swells of the steamer New Y ork passing negligently. The boat could not be docked there for repairs with the cargo on board,-because not strong enough; and the cost of transferring the ice would equal or exceed its value. The canal-boat was therefore sent to New York without repair, a trip of 140 miles; but, being old and weak, she foundered -within 12 miles of the city, and boat and cargo were a total loss. A fit and seaworthy boat for such business would have made the trip without foundering or losing the ice, notwithstanding the leak. Held, that the loss of the ice by the foundering was not the proximate result of the injury done by the New York, but of the canal-boat’s previously unfit condition; and that the New York was responsible only for such loss and damage to the ice as would naturally result from such an injury to a seaworthy boat, such as increased melting or injury to the ice from the water, brought in contact with it by the leak; and that the libelant, having contributed to the injury by wrongfully filling in the channel, was entitled to half such damage only.</p>

<p>1. Seamen — Wages.</p> <p>Where a seaman, injured in a vessel’s service, at his own solicitation, and against the advice of the master, obtains his discharge in an American port, and receives his wages to date, and a certificate for admission to the marine hospital, he cannot afterwards maintain a claim for wages to the end of the voyage.</p> <p>2. Same — Expenses oe Medical Treatment.</p> <p>Having been admitted to a United States marine hospital, and obtained a discharge therefrom at his own request, the vessel is not liable for expenses thereafter incurred by him at a private hospital.</p>

<p>In Admiralty. Action for damage caused by the alleged negligent landing of a tow.</p>

<p>1. Maritime Liens — Running Account — Application op Payments.</p> <p>The special agents of a foreign vessel made advances for the vessel’s account on various charges which were liens; also other advances, to the owners, of moneys which were not liens, but were advanced upon the credit of the freight moneys which were to be collected by them, as shown by the correspondence between the parties. All the debits and credits were put in one running account. Meld, that the intention of the parties controls the application of payments; and that the intention here was that the freight moneys should be applied upon all lawful charges alike, and that such credits should accordingly be applied'by the court to the debits chronologically, and that an attempted application by the creditor to non-lien charges, while preparing for suit, was too late.</p> <p>S. Same.</p> <p>The vessel having been sold in prior proceedings, held, that the agents upon their libel in rem were entitled, as against the mortgagee, to claim out of the remnants and surplus such items of their unpaid account (after applying the credits chronologically) as were liens on the ship only, excluding advances to seamen made contrary to law, and their own commissions.</p>

<p>In Admiralty. On appeal from district court, 29 Fed. Rep. 223.</p> <p>Libel in personam by Patrick O’Rourke against Joshua S. Peck and others, for the sinking of libelant’s canal-boat. Respondents appeal from a decree for libelant.</p>

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

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

<p>In Admiralty. On appeal from district court. See ante, 289.</p>

At Law. On motion to set aside verdict, and for new trial. For report of charge on first trial, see 20 Fed. Rep. 482. On motion for new trial, see Id.' 494. For report of opinion reversing the judgment, and granting a new trial, see 8 Sup. Ct. Rep. 331. For report of charge on second trial, see 38 Fed. Rep. 650.