Volume 69 — Federal Reporter

<p>Appear—Assignments of Error—Waiver of Defects—Rehearing.</p> <p>Where counsel have discussed in their briefs a question as to the effect of amending the specifications of a patent in the patent office, under a general assignment that the court erred in holding the patent valid, without raising any objection in regard to the sufficiency of the assignment of errors, they cannot afterwards insist, on motion for rehearing, that the assignment was not sufficiently specific.</p>

This was a bill in equity by the National Bank of Commerce of Kansas City, Mo., against the Kildare Lumber Company (a corpora- tion of Texas) and W. R, Cainp, George T. Todd, die Atlanta Bank (a… Held: or claimed to hold, a claim amounting to about $30,000), W. B. Chew (who represented a national bank at Houston, Tex., which was also a creditor of the Jefferson Lumber Company to a large amount), and Elijah Robinson (attorney for the complainant herein).

<p>Mechanics’ Liens- -Railroad Contractors—Florida Statutes.</p> <p>The Florida statute of June 3, 1887, which gives a superior lien to any persons “who shall perform any labor upon or for the benefit of any railroad,” etc., is to be construed as extending its benefits to a railroad contractor who has furnished work and labor for construction, as well as to those actually performing labor.</p>

This -was a suit by the Farmers’ Loan & Trust Company against the Roekaway Valley Railroad Company and others for the foreclosure of a mortgage. W. T. Melick petitioned to have the decree of sale opened, and for leave to file an answer.

<p>1. Municipal Corporations—Limit oj.’ Indebtedness—Pennsylvania Constitution.</p> <p>Held, following tlie decision of the supremo court of Pennsylvania, that the language of article 9, § 8, of the constitution of that state, limiting the debt of cities to 7 per cent of the assessed valuation of taxable property therein, means the valuation fixed by the city authorities for city taxation, not that made by county officers for county purposes.</p> <p>2. Same—Special Elections—Pennsylvania Acts or June 9,1891, and June 10, 1893.</p> <p>Held, also following- the decision of the supreme court of Pennsylvania, that the act of the legislature of that state of June 9, 1891, regulating the maimer of increasing the indebtedness of municipalities, is not repealed by the act of June 10, 1893, known as ilie “Baker Ballot Law.”</p> <p>8. Equity Pleading—Impeaching Special Election.</p> <p>Allegations, in a bill seeking to impeach the result of a special election to authorize a municipal indebtedness, that, in many districts tickets in opposition ivere not furnished, or, if furnished, weie secreted or destroyed, and discrimination made between different loans proposed, by not furnishing tickets against loans to which there was opposition, are too indefinite to be a foundation for any relief, though ordinances relating to the election required the mayor to furnish ballots.</p> <p>4 Municipal Corporations—Street Improvements—Pennsylvania Statute.</p> <p>It is within the lawful power of a city, under the Pennsylvania statute of May 16, 1891, relating to the opening and improvement of streets, to provide funds to meet an estimated liability for the costs, expenses, and damages of opening a street; and it is not to be presumed that more of the fund raised will be used in making such improvements than will be lawfully applicable thereto.</p>

<p>1. Railroad Foreclosure—Receivership—Property not Covered by Mortgage.</p> <p>A court of equity has no power, upon a bill for the foreclosure of a railroad mortgage, to take into its custody or control, through a receiver or otherwise, property not covered by the mortgage, nor to make any order that will hinder or delay creditors in subjecting property not covered by the mortgage to the payment of their debts.</p> <p>3. Equity—Receivership—Hindering or Delaying Creditors.</p> <p>Certain stockholders, bondholders, and general creditors of the N. Ry. Co. filed a bill against that company, alleging that its earnings were inxuiicient to pay expenses and fixed charges; that it owed a large floating debt; that it was important to its creditors and the public that the unity of the line formed and controlled by the company should be preserved; that, unless the property of the company were taken into judicial custody, it would be broken up, and its value dissipated, by the enforcement of their remedies by individual creditors, and the forfeiture of leases by other companies; and thereupon prayed for the appointment of receivers to hold the; property of the company in order that it might be managed and disposed of to the best advantage, and that all the obligations of the company might be discharged. Upon consent of the company, receivers were appointed, and an order made that they should pay current expenses, sums due to other connecting roads, and all sums due for wages within seven, and supplies and materials within six, months. A little more than six months before the appointment of the receivers, one S. recovered a judgment against the company for necessary supplies furnished to it, the indebtedness having accrued some years earlier. S. intervened in the suit in which the receivers were appointed, asking leave to levy an execution on certain lands on which his judgment was a lien. Held, tnat the court had no power to hinder and delay creditors of the company by withdrawing its property indefinitely from the operation of their remedies, or by excluding from the benefit of the trust it had assumed any class of creditors or debts accruing before any particular time, and that leave should be given to S., if not promptly paid by the receivers, to levy an execution on the property subject to the lien of his judgment.</p>

States for the District of North Dakota. This was an intervening petition filed by Joseph Lamont in the consolidated cause of the Fanners’ Loan & Trust Company, P. P>. Winston, and others against; the .Northern Pacific Railroad Company, praying for the payment by the receivers of a judgment held by Jam as a preferential debt. Tlie circuit court granted the petition. The Farmers’ Loan & Trust Company and the railroad company appealed.

<p>In Equity. Bill by the United States of America against Jane L. Stanford, as executrix of the last will of Leland Stanford, deceased, to enforce against the estate decedent’s liability as stockholder in the Western Pacific, Central Pacific, and Union Pacific Railroad Companies, for default in payment of bonds issued by complainants to such companies.</p>

This was a suit by the United States against the Southern Pacific Railroad Company and others to determine the title to certain lands. The circuit court rendered a decree for the complainant 62 Fed. 531. Defendants appeal.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Mississippi.</p> <p>This was a suit by John M. Dennison, J. (I."Wilson, and Frank T. Redwood against the mayor and city council of Columbus, Miss., to recover upon interest coupons of certain bonds issued by defendant city to the Columbus, Fayet+e & Decatur Railroad Company. A demurrer to the declaration was overruled by the circuit court, and upon a trial a verdict was returned in favor of plaintiffs, and judgment was entered accordingly. From this judgment the defendant brings error. In overruling the demurrer to the declaration, the following opinion ivas delivered in the circuit court by Niles, District Judge:</p> <p>This is a suit on overdue coupons for interest on bonds issued by the defendant to the Columbus. Fayette & Decatur Railroad Company, and delivered to the Georgia Pacific Railway Company, into which the first company and several others were consolidated. The main points relied on as defenses are that the bonds were voted as a donation, when the act under which they were voted only authorized a subscription to the capital stock; and that the consolidated company was authorized to build a different railroad from that originally chartered. The act approved February 1, 1872 (see Acts 1872, p. 2!)7) gave the city authorities power to subscribe to aid in the construction of the Columbus, Fayette & Decatur Railroad Company, and to issue its bonds to the amount of said subscription. No provision is anywhere made for an exchange of bonds for stock, and stock is nowhere mentioned in the act. The act ratifying the consolidation (Acts 1882, p. 83(5, I 2) provides that “the donation of SflOO,000.00 in its bonds heretofore agreed to he made by the town of Columbus, to Hie Columbus, Fayette & Decatur Railroad Company, hut which have not yet been paid over, be and are hereby declared to be payable to the said Georgia Pacific Railway Company.” Tills is a legislative construction, at least, that a, donation was authorized, which in such cases is entitled to great respect, and will frequently amount to a, legisla Live ratification. Pompton Tp.' v. Cooper I ilion, etc., 101 TJ S. 190. In 1881 an act was passed amending the charier of the city of Columbus, in which it was authorized to levy and collect a special tax to pay the interest on these bonds, and to provide a sinking fund for the ultimate redemption of the principal The declaration shows that the interest has been paid for eleven years,—since 1882. Here is a ratification by the legislature in authorizing the bonds to be issued as a. donation, and taxation to pay them; a ratification by the city authorities, in issuing them as a doiiation, and levying the taxes; and a ratification by the people in the continued payment of the taxes. It is difficult to conceive a stronger case of ratification, if that were necessary. The bonds were voted as a donation by the constitutional majority of two-thirds of the qualified voters, as recited in the face of the bonds themselves, and, this only barrier against legislative power being removed, the legislature clearly had the right to ratify. Supervisors v. Brogden, 112 U. S. 201, 5 Sup. Ct. 125; Katzenberger v. Aberdeen, 121 U. S. ITS, 7 Sup. Ct. 947.</p> <p>It is next objected that by the consolidation a different road was authorized to be built, and that the consolidated company had authority to leave Columbus off its line entirely, and to build by way of Aberdeen. It is not alleged that the consolidated company was deprived of the right to build the road for which thé bonds were voted, ór that it actually did build by way of Aberdeen. The rule is that, if bonds are voted to a railroad company, which at that time Is authorized to consolidate with other railroads, then the bonds may properly be delivered to the consolidated company. This principle is announced, and the authorities reviewed, in Livingston Co. v. First Nat. Bank of Portsmouth, 128 U. S. 102, 9 Sup. Ct. 18. There was a general act for the creation of railroads passed by the legislature of Alabama on December 29, 18G8. See Acts Ala. 18G8, p. 462. By the twenty-first section of this act railroad companies were authorized to consolidate on certain conditions. By the twenty-third section all the property and choses in action of each constituent company were transferred to the consolidated company. By the Mississippi act this Colurn-. bus, Fayette & Decatur Railroad Company, which was incorporated under this general act for Alabama, was granted “all the privileges, rights, and immunities” conferred by the Alabama act. See Acts Miss. 1871, pp. 187, 188. Hence the companies were authorized to consolidate, and the bonds, or right to the bonds, which is a chose in action, was transferred to the consolidated company, unless this right was cut off by the allegation that the consolidated company had an option to build a different road by way of Aberdeen. The answer to this is that the city authorities were only required to issue the bonds “when the terms of subscription are complied with.” See Acts Miss. 1872, p. 298. On their faces the bonds are payable to the Columbus, Fayette & Decatur Railroad Company. They were authorized to be delivered to the Georgia Pacific Railway Company, the consolidated company, under the same limitations and restrictions that they were or would have become payable to the Columbus, Fayette & Decatur Railroad Company. See Acts Miss. 1S82, p. 83G. The city authorities of Columbus, Miss., were the tribunal to determine when these conditions were complied with, and issue and deliver the bonds. They did issue and deliver the bonds with proper recitals, and they are now estopped, as against innocent purchasers, from alleging that they acted wrongfully. Block v. Commissioners, 99 U. S. GSG; Commissioners v. January, 94 U. S. 202; Commissioners v. Clark, Id. 278; Brooklyn v. Insurance Co., 99 U. S. 3G2; Moran v. Commissioners, 2 Black, 722. For these reasons I think the demurrer to the declaration should be overruled, and the demurrers to the special pleas (from the third to the fifteenth, inclusive) should be sustained, and judgments can be entered accordingly.</p>

<p>In Error to the Circuit Court of the United States for the Southern District oí Florida.</p> <p>This was ail action by the Kimball Lumber Company, a corporation engaged in manufacturing lumber and timber at Appalachieola, Fla., against Crow, Rudolph & Co., lumber merchants of Liverpool, England, to recover damages for an alleged breach of a eontiaet Cor the sale and shipment o£ timber and lumber by complainant to defendants. In the circuit court there was a verdict for plaintiff in the sum of 814,728.24, upon which judgment was entered by the court. Defendant’s bring error.</p> <p>The contract sued on was executed May 20, 1889, and was signed on behalf of defendants by W. S. Keyser, their resident agent, at Pensacola. It provided for the sale and delivery by plaintiffs of eight cargoes of sawn timber, a cargo of from 300,000 to 400,000 feet of prime deals, a million to a million and a quarter of prime boards and choice dimension deals, and a million to a million and a quarter feet of hewn timber. The performance of the contract was to cover a period from November 1, 1889, to November 1, 1890, and the shipments were to be made on vessels from 400 to 800 tons, to be provided by defendants from time to time as business required, say about one vessel per month. For the details of this contract, reference was made to a previous contract entered into on the 3d of November, 1888, and which was still in course of execution. Three cargoes only were shipped under the contract of 1889; but, mutual recriminations having taken place,—defendants complaining of the grade and quality of the lumber furnished, and plaintiff of the delays and irregularity in sending vessels,—a new contract was, on December 30, 1889, executed, which contained various modifications of the terms of the original contract; but no ships wore ever sent by defendants to take cargoes under this contract, and no part of it was ever performed. Defendants set up this contract as a defense to tlxe action, claiming that it entirely superseded the original contract, and hence that no action could be maintained upon the latter. Plaintiff claimed, and gave evidence in support thereof, that the new contract was intended as an accord between the parties, and was such in fact, hut that, as there was no performance of it, there was no satisfaction, for which, reason 1Iie original agreement remained in force. Upon this question the court charged the jury as follows: “The suit here in this case is upon the contract of May 20, 1888, and not upon the centrad of December 30th. The defendants have contended that the contract of December 30th was valid and binding upon these plaintiffs, and therefore no tiling could be recovered upon this contract sued on. That is properly a question of law, because, if the contract of December is binding, then the plain! iff cannot recover in this case, but must bring another suit on that contract. The largo part of the legal contention, as made over this clause, is about that question, and I propose to draw the lino clearly and definitely in a legal way on that subject. I think it will be better for the jury, and I am sure, if the case goes to another court, it will be better for the counsel in the case, and for the respective parties. The contract of December 30, 1880, is not binding, it was on accord, and, if carried out, would have been in complete satisfaction, of the contract of May 20th. It never was carried out in any particular. No ship -was ever chartered or sent under that contract, and it fails for that reason, and the suit in this ease stands because of that fact in law. Your determination, as has been argued by the plaintiff, is all under the contract of May 20, 1889, as it stood and as it was made, embodying, as I say, some of the features of the contract of 1888. That being the case, and there being no evidence, in my judgment, other than that the contract of May 20, 1889, was broken by the defendants without any just cause, as has been shown in this case, the question, and the only question, for the jury to determine, is the amount of damages which the plaintiff shall recover in. this case, and it is the law that you shall assess such damages as they have suffered by the breach of that contract.” Various questions were raised by exceptions to the judge’s charge in relation to the measure of damages, but the one mainly argued in this court was the question as to the effect of the contract of December 30, 1889.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>This was a bill by Simon Block, an alien, against Pierre B. Dragon, Athenaise Dragon, Madeline Pons, and several others, citizens of Louisiana, for an accounting. All the defendants excepting Madeline Pons compromised with complainant and were dismissed from the cause, June 18, 1892. On December 31, 1894, a decree was entered against her and in favor of complainant for the sum of 8853.01, with interest and costs, and from this decree she has appealed. The facts from which the controversy arose were briefly as follows: In January, 1883, Pierre B. Dragon and Athenaise Dragon, being lessees of “Monsecour’s” plantation in the parish of Plaquemines, La., contracted with Simon Block for advances for the purpose of enabling them to work the plantation and produce a crop for the year 1883, and for security gave 'him a lien on all the products of the plantation, and agreed to consign the same to him at New Orleans for sale, allowing him commissions therefor. The clause of the contract in relation to the lien was as follows: “A special lien and mortgage, or privilege, is hereby granted and recognized for the full sum of fifteen thousand dollars on any and all crop or crops of rice, sugar, molasses, and other products that may be planted, grown, raised, and gathered, or made and manufactured during the year eighteen hundred and eighty-three on the hereinbefore mentioned and described plantation, tracts, and parcels of land, and this instrument is hereby directed to be recorded in order to preserve and make the same public so as to operate and bear upon tbe crops ol' the year eighteen hundred and-grown and produced on the aforesaid plantation." Prior to the making of this contract, one B. Saloy purchased the plantation from the lessor, and he became a parly to the contract, expressly agreeing that Ms claim as lessor for rent should be “subordinate and inferior in rank to the claims and privileges of said Block as the furnisher of supplies or for advances furnished under the contract,” and that said Block should be first reimbursed out of the crops of 1883 “in the full amount of his advances hereunder, without regard and in preference to demands of said Saloy for the rental of said plantation.” Under this contract, Block made advances exceeding in their total amount flic sum of $15,000. When the account was closed, in April, 1881, it was found 1hat a considerable sum was still due to Block from the lessees. Prior to that time, and on November 20, 1883, the said Saloy brought a suit in a slate court for rent of Uie plantation, amounting to $4,8Gu, and obtained the issuance of the writ of provisional seizure, under which lie caused a part of the crops to be seized. He afterwards gave a release bond and took full possession of the property.</p> <p>The prayer of the bill was that complainant might: be declared to liare a lion and privilege upon the property thus seized and hold by Saloy, it being alieged that this seizure was in violation of his contract to permit the complainant to have a first lien on the crop for his advances. Saloy, however, died before the suit was brought, leaving bis estate by will to bis wife as universal legatee, who, as alleged by the bill, accepted the same purely and simply, and was duly recognized, and was given possession by the proper state court:. 8-liortIy afterwards, she also died intestate, and the properly descended to the persons named as defendants in the bill, who were alleged to have accepted tills succession purely and simply and to have been put in possession of the property by the proper court, by reason whereof they became liable for all tin; debts due by the said Saloy, including complainant's demand. The cause was heard before a master, and, after numerous exceptions to his report were disposed of, a decree was rendered against Madeline Pons for her xiroportion 0f the amount found due on the accounting'. The main point made against the decree was that complainant liad made advances in excess of the $15,000 specified in the contract, and that the lessees had consigned to him, and he had sold, products of the plantation exceeding that stun; and it was contended that as soon as bis net sales amounted to $15,000 Saloy’s rights as landlord became thenceforth superior to tin; lien for advances, and that lie ilion had a lawful right to enforce his lien for rent by seizing ¡lie products of the plantation.</p>

Miller against the Houston City Street-Railway Company to recover damages for a refusal to transfer certain stock. Upon the first trial, before the court without a jury, judgment was rendered for the defendant, and, on error, a new trial was awarded. 5 C. C. A. 134, 55 Fed. 366. The case was again tried by the court without a jury and judgment given for the defendant. Plaintiff brings error.

<p>Contracts—Interpretation.</p> <p>'Die B. Go. and (lie L. Electric Light Co. entered Into a written agreement hy which certain differences were adjusted, and a stun was iixed as the amount due the former by Hie latter for machinery sold. It was also provided that, within 40 days, a test of such machinery should be made, and, according to the amount of saving shown over the machinery formerly used by the L. Go., the time of payment of the balance duo should bo iixed. The test was made more than 40 days later, in consequence of delays by the L. Co., and in a different way front that provided by the agreement, hut it was satisfactory to both parties, and the L. Co. took possession of ihe machinery, and used it, without complaint, anil without suggesting any other test, for a longer time than it would have been entitled to delay payment by any result of the test, field, that the B. Co. was entitl'd to a decree for the balance due.</p>

<p>In Error to tlie Circuit Court of tlie United States for tlie Western District of Texas.</p> <p>This was an action of trespass to try title under the Texas statute of July 12, 1891, and was brought by Theopliilus Porter, Nancy A. Porter, and Cornelia Porter, citizens of Michigan, against Charles H. Mayfield, Henry Hoecke, W. P. Finley, George C. Slioaf, and Mrs. F. R. Noble. Additional parties were brought in as defendants by amendment. At the trial the circuit court directed a verdict for defendants, and judgment was entered accordingly. The plaintiffs bring error.</p>

<p>Indian Territory — Laws in Force—Penalty eor not. Executing Process.</p> <p>Under the act of congress of May 2, 1890, c. .182, § 31 (26 Stat. 81, 93), adopting for the Indian Territory certain statutes of Arkansas, including chapter CO of the statutes of that state, relating to executions, section 3061, part of said chapter 60, and providing a penalty for the failure of an officer to whom an execution is delivered to execute or to return the writ, is an act of congress within the territory, of the same force and effect as if adopted by congress, without any reference to the Arkansas statutes, and is to be enforced by the United States court, as such.</p>

Separate suits were brought by O. F. Norwood and E. R. Norwood, the defendants -in error, against the Fireman’s Fund Insurance Company and the Norwich Union Fire Insurance Society, the plaintiffs in error, to recover alleged losses on policies of fire insurance on a stock of merchandise issued by these companies, respectively, to the defendants in error. By agreement of the liarties, the suits were consolidated and tried as one cause.

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p> <p>This was an action at law by Frank Y. Anderson and William J. Cameron, trustees, successors to John Swann and John A. Billups, trustees, against John Howard, to recover possession of certain parts of section 27, township 8 S., of range 10 E., in De Kalb county, Ala. In the circuit court a verdict was directed for defendant, and judgment entered accordingly. Plaintiffs bring error.</p> <p>The -following is part of an agreed statement of facts filed in the case:</p> <p>It is agreed, by and between the parties to the above cause, that the plaintiffs have succeeded to all the right and title -of the state of Alabama, and of the Wills Valley Railroad Company, and of the Alabama & Chattanooga Railroad Company, to all the land included in the grant of lands by the congress of the United States by act approved June 3, 1856 (11 Stat. 17), and renewed by act approved April 10, 1869 (16 Stat. 45); that all the terms and conditions of said acts of congress were fully complied with by the completion of the Alabama & Chattanooga Railroad, on May 17, 1871, from Wauliatchie, Tenn., to Meridian, Miss., the said Alabama & Chattanooga Railroad being a consolidation of the Wills Valley and the Northeast & Southwest Alabama Railroad Companies. Said consolidation was made by authority of the-legislature of Alabama, by act approved October C, 1868.</p> <p> </p> <p>It is further agreed that the map hereto attached, and marked “Exhibit A,” and which is made a part of this agreement, shows the relative position of the track of the Alabama & Chattanooga Railroad, as completed on May 17, 1871, and as it has ever since remained, to the land in dispute. That the land in dispute is within six miles of the line of the Alabama & Chattanooga Railroad (now the Alabama Great Southern Railroad) at the point where it crosses the line dividing the states of Alabama and Georgia, but is not at right angle with said railroad at any point of said line of railroad in Alabama; that said land is in Alabama, and within six miles of the track, and at right angle thereto, of the said Alabama & Chattanooga Railroad (now the Alabama Great Southern Railroad), at a point where said railroad is within the state of Georgia, between the Georgia and Alabama state line and Wauhatehie, Tenn.</p>

<p>In Error to the Circuit Court of the United States for the District of Montana.</p> <p>This was an action by Neptune Lynch, Sr., against the Northern Pacific Eailroad Company for personal injuries. Judgment was rendered for the defendant in the circuit court. Plaintiff brings error.</p>

<p>Railroad Accounts—Act ov June 19, 1878—To What Roads Applicable.</p> <p>The act of June 19, 1878 (1 Siipj). Rev. St. 191), requiring certain reports, prescribed by the auditor of railroad accounts, to bo made by railroads to which the United States have granted any loan of credit or subsidy, in bonds or lands, or which have received from the United States lauds, granted to them to aid in the construction of their roads, does not apply to the railroads which were incorporated by the several states, and received from them the grants of land made to such states to procure the construction of railroads.</p>

<p>Customs Duties—Classification—Leghorn Citron.</p> <p>“Leghorn citron” was not dutiable under paragraph 302 of the act of 1883, as a “comfit, sweetmeat, or fruit preserved in. sugar,” but was entitled to free entry as a dried fruit</p>

<p>1. Customs Duties—Classification—Jute Bagging.</p> <p>Jute bagging, which is commercially lit for bagging cotton, is dutiable under paragraph 3(>6 of the act of 1890, and not under paragraph 374, as a manufacture of jute not specially provided for.</p> <p>3. Samf.—“Suitable” DhfiNku.</p> <p>The test of the suitableness of an article for a certain purpose is not whether it is commonly used therefor, but, whether it xiossesses actual, practical commercial fitness for that xiurpose.</p>

<p>4 Appeal—Assignments of Error.</p> <p>Error is assignable upon an order or ruling,, but not upon the opinion of the court or the reasons given for the ruling. Caverly v. Deere, 13 C. C. A. 452, 66 Fed. 305, followed.</p> <p>2. Patents—Equity Jurisdiction—Discretion of Court.</p> <p>Patents which have expired can afford no basis for equitable relief in respect to infringement; and, in respect to a patent which expires just after filing of the bill, and before the return, day of the subpoena, it is within the discretion of the court to dismiss the bill for want of equity. 64' Fed. 581. affirmed.</p> <p>3. Same.</p> <p>Whore ten patents to the same person, all relating to one machine, were sued on, and four of them had expired before the bill was filed, and a fifth expired before the return day of the subpoena, and the others were found by the court to be invalid because for the same invention as that covered by the first five, held, that the bill was properly dismissed for want of equity. 64 Fed. 581, affirmed.</p> <p>4 Same—Flour-Purifying Machines.</p> <p>The Smith patents, Nos. 187,923,194,539, 208,936, 236,101, and 258,142, for a middlings-purifying and flour-dressing machine, are void, because granted to the same person for the same inventions covered by Nos. 133,898, 137,-495, 154,770, 158,992, and 164,050. 64 Fed. 581, affirmed.</p>

<p>Appeal from tbe District Court of tbe United States for tbe Eastern District of Louisiana.</p> <p>This was a libel by the Gulf Port Steamship Company, Limited, a corporation under the laws'of Louisiana, and doing business in New Orleans, against ' the steamship Empire, William Thomas & Co., of Liverpool, England, claimants, to recover damages for breach of a charter party. The breach alleged consisted in the failure of the steamship to take the full amount of 2,500 tons of cottonseed oil cake or meal, tendered by libelant, it being claimed by it that she was guarantied by the charter party under which she was laden to carry that quantity. A cross libel was filed by the claimants for freight alleged to be due, and for demurrage and other charges. The district court entered a decree dismissing both the libel and the cross libel. The libelant alone appeals.</p> <p>The charter party was executed under the following circumstances: On March 22, 1892, Ross, Howe & Merrow, ship brokers in. New Orleans, cabled to Simpson, Spence & Young, ship brokers in Liverpool, that they “wanted a steamer for not more than 2,500 tons oil cake, and, or meal, and, or flour, in sacks, 20 shillings.” Simpson, Spence & Young quoted this offer the next day, in Liverpool to all their correspondents, among them William Thomas & Co., owners of the Empire. William Thomas & Co. refused to accept 20 shillings a ton for a cargo of oil cake, on the ground that they did not think that the steamer would carry her dead weight of such cargo. They, however, made a counter proposition, which was cabled by Simpson, Spence & Young to Ross, Howe & Merrow. This offer was to charter for a lump sum, the ship to take “a full cargo of oil cake, meal, or flour * * * guarantied 2,500 tons d. w. c. [dead-weight cargo] ex-bunkers.” On the next day Ross, Howe & Merrow replied that they had “closed in accordance with telegrams exchanged.” The same day the Liverpool brokers, acting on the reply of Ross, Howe & Merrow that the latter would draw the charter “in accordance with telegrams exchanged,” cabled as follows: “We confirm charter. Send six copies of charter party at once.” The Liverpookbrokers then wrote the following letter to the owners of the steamship:</p> <p>“Liverpool, March 25, 1892.</p> <p>“Messrs. Wm. Thomas & Co., Liverpool, ‘Empire’—Dear Sirs: We have closed this steamer subject to your confirmation for the New Orleans freight at 2,600 pounds to Glasgow, Hull, Newcastle, Hamburg, Antwerp, Rotterdam, Amsterdam, or Bremen,—2,500 pounds if ordered to Plymouth, Avonmouth, Liverpool, or London, twelve weather working days for loading ex S. and H., free of dispatch money, 2y2 per cent, address, canceling nonreadiness 5th May, charterer’s stevedore to be employed as customary, at current rates, all other usual conditions of charter, steamer guarantying 2,500 tons dead-weight ex-bunkers. We strongly advise you to confirm, as we are quite certain this is the best business in the market. For grain, charterers now only offer to-day 39 c. f. o., with 25th April, canceling, and from the Northern ports the outside obtainable for April-May loading is 3-3 c. f. o. We have special order from Philadelphia to Copenhagen or Aarhuns at 3-6, option Stettin, 3-9.</p> <p>“Yours, faithfully, [Signed] Per pro Simpson, Spence & Young.</p> <p>“Cargo oil cake, and, or meal, and, or flour in sacks. J. T. G.</p> <p>“[Indorsed on face in corner free of cables.] J. T. GT</p> <p>On the same day the Liverpool brokers wrote again to the owners of the steamship the following letter:</p> <p>“March 25, 1892.</p> <p>“Messrs. Wm.'Thomas & Co., Liverpool—Dear Sirs: In accordance with</p> <p>your authority, we are now cabling our New Orleans friends concerning charter S. S. ‘Empire’ on terms of our letter to you this morning. We thank you for the authority, and will hand you copies of charter immediately they come to hand.</p> <p>“Yours, faithfully, Per pro Simpson, Spence & Young,</p> <p>“L T. Gibson.”</p> <p>The charter, however, as drawn in New Orleans by Ross, Howe & Merrow, instead of the guaranty of 2,500 tons dead weight, etc., read, “guarantied to carry not less than 2,500 tons (of 2,240 pounds) of cargo.” Without wailing for the arrival of the copies of the charier party, the ship was ordered to New Orleans, the owners delivering to her captain the first letter written to them on March 25, hy Simpson, Spence & Young, and which contained a statement of the terms which they had authorized to he incorporated in the charter party. On arrival at New Orleans, the captain gave written notice to Boss, Howe & Merrow that he was ready to receive cargo “under charter dated 25th March, 1892.” A copy of the charter party was handed to him in New Orleans, but lie testified that ho did not look at It, because he took It for granted that it was like Hie letter. It appears that the ship took all the cargo- which she could properly carry, hut that she had not sufficient space for the full 2,500 tons of light oil cake and meal tendered hy libelant. Copies of the charter party having been received at Liverpool by Simpéon, Spence & Young prior to April 14, 1892, they on that date wrote to Boss, Howe & Merrow a letter, containing the following: “ ‘Umpire’--Charters duly received, and we passed same on to owner. Wo are surprised that you haye made this charier out on the lump sum, ‘B’ form, which is entirely unusual, as it ought to have been made out on the usual oil-cake form of charter, you simply inserting the guaranty of 2,500 tons dead weight. Owner absolutely refuses to allow clause 7, and this must be erased. There are one or two other points in the charter which he objected to, but we have now got him to agree to there, and the charter is therefore all in order with the exception, of clause 7, which must be entirely erased.”</p> <p>Oíanse 7 was not in controversy in this case. In respect to this letter, Mr. John T. Gibson, manager of Simpson, Spence & Young, in his deposition, made the following- explanation: “On or about the 10th April I received copies of the charter party from Messrs. Boss, Howe & Merrow, and sent a copy on to Messrs. William Thomas & Go., and Mr. Jones, Messrs. William Tilomas & Co.’s clerk, subsequently came to see me about it He pointed out that in the guaranty as to carrying capacity the word ‘deadweight’ was omitted. It is quite possible tiiat I 1old him that it must have been an oversight on the part of Messrs. Boss, Howe & Merrow, as it was arranged in the cablegrams that that was the guaranty. I afterwards saw Mr. Thomas, but I do not recollect quite what passed between us, hut I think it very likely that I also told him that it must have been an oversight on the part of Messrs. Boss, Howe & Merrow. After those interviews, I wrote out to America to put the matter right, and a true copy of my letter is now produced and shown to me, marked ‘J. T. G. 5.’ I annex copy of ceiiain letters and cables now produced and shown to me, marked ‘J. T. G. 0,’ which are true copies of what passed subsequently between Messrs. Boss, Howe & Merrow and ourselves.”</p>

<p>1. Salvage Compensation—Extinguishing Fire i?t Chemicals.</p> <p>A cargo of sulphur having taken fire at the wharf, water was pumped in for several horns by tugs and by the city fire department, without apparent effect. The underwriters then employed a skilled chemist, who, with the master’s assent, took charge of the vessel, and, by generating Carbonic acid gas and discharging it into the hold, finally succeeded, with the aid of several chemical engines belonging to the fire department, in extinguishing the fire. At first there was probably some danger of an explosion, and the time enrployed was five or six days. The value of vessel and cargo as saved was $97,000. Belli, that an award of $10,000 to the chemist was excessive, and should be reduced, on appeal, to $0,000. 02 Fed. S06, reversed.</p> <p>2. Same—Services Rendered under Contract.,</p> <p>The fact that salvage services are rendered under a contract of employment by which the salvor will be compensated whether successful or not is a matter which should be considered in reduction of the award.</p>

<p>Salvage Compensation—Reduction on Appeal.</p> <p>A tug worth $30,000, with some risk and damage to herself from intense heat, drew away from a burning wharf a bark which had already caught fire in her masts and rigging. By means of her powerful steam pump, the tug, in about six hours', succeeded in subduing the flames. After an absence of some four hours, the fire having broken out again, she returned to the bark, and, by request, lay by her all night, extinguishing the flames, which continued to break out afresh under a strong wind. The estimates of various witnesses as to the value of the bark after the fire ranged from $1,500 to $10,000, but she had been insured for $23,000. The district court placed her value at $10,000, and, the cargo being worth about $10,000, awarded $5,000 as salvage. Held that, while the valuation of the vessel appeared high, yet, under all the circumstances, the award could not be considered so excessive as to warrant the interference of an appellate court.</p>

This was a libel by Baptiste Figgans against the steamboat Belle of the Coast to recover damages sustained by libelant, who was employed on board said boat, by reason of having his fingers crushed between the ends of two barrels while engaged in loading sugar at the landing at Pike’s Peak, on the Mississippi river. The district court dismissed the libel, and the libelant has appealed.

<p>Practice—Case Improperly Heard in Equity—Objection First Raised on Appeal.</p> <p>A case of a purely legal nature, involving no equitable feature and requiring no equitable relief, was brought in a state court, in the form of a bill in equity, under a local statute, and after removal to the federal court was conducted to its end by both parties under the forms of equity procedure, resulting in a decree dismissing (he bill. From this decree the complainant took an appeal, and, by a motion to dismiss such appeal, made after the time for bringing a writ of error had expired, the respondent for the first time raised the objection that the proceeding was one at law, which could only be reviewed by writ of error. Held, that the decree should be reversed and the cause remanded, with instructions to redocket the case as one at law, and require the parties to reframe their pleadings to conform to the procedure at law.</p>

<p>Public Lands—Swamp-Land Act—Estoppel against State.</p> <p>The state of Michigan filed a bill, to remove clouds upon the title to lands to which it claimed to be entitled, under the grant in the swamp-land act of September 28, 1850, by reason of such lands having been included in the original surveys of public lands in the state, which were ascertained to be fraudulent and erroneous, but which surveys, as claimed by the state, were adopted at the time of the grant, as the means of ascertaining the lands covered by it. It appeared that, in the course of the administration of the; grant, under the statutes of the state and the United States, and by tlie acts of the various officers of the state and general governments, the grant had been adjusted upon the general principle and purpose of reaching the real truth in regard to the character of the lands, and the lands, so ascertained to belong to the state, had been patented to it, largely upon the basis of the corrected surveys, excluding the lands now claimed, which were in fact not swamp lands, and that the particulars of such adjustment had been generally known, and had been set forth in the official reports of the officers of the state land office, and communicated to the legislature in messages of the governor, and that such adjustment had remained undisturbed for many years.. The lands held by the defendants in this suit had been included in a grant by the United States to the state, in aid of the construction of a railroad, and, after being certified to the state as passing by such grant, in lists which remained on file in the state land office for several years, were patented to the railroad company. Held, that the claim of the state was without equity, and that it could not be permitted, after so long a period of acquiescence, during which third parties had acquired rights in reliance upon the validity of its public action, to assert such claim, in disaffirmance of the acts of its officers, whether done in excess of their powers or not. Lumber Oo. v. Rust, 68 Fed. 155, approved.</p>

This was an action by Julia Craft, administratrix of Benjamin P. Craft, deceased, against the Northern Pacific Bailroad Company for causing the death of said Benjamin P. Craft. The plaintiff recovered a judgment in tbe circuit court. A motion for a new trial was denied (02 Fed. 735). Defendant brings error.

These were two actions by Henry O. Morris and John S. Dovev, respectively, against the Griffith & Wedge Company upon íavo promissory notes. The cases were tried by the court without a jury.

This was an action by Stephen A. Van Horne against the Cincinnati, Hamilton & Dayton Railroad Company for personal injuries. Plaintiff recovered judgment in the circuit court. Defendant brings error.

This was an action upon contract: by the Crefeld Mills against Wan on N. Goddard and Frederick N. Goddard. The jury gave a verdict for the plaintiff, and I he defendants moved for a new trial.

<p>1. Criminal Law—Selling Liquor without License—What are Liquors.</p> <p>The term “domestic distilled spirits,” as used in the law requiring retail liquor dealers to pay a special tax to the United States before engaging in the business, does not include patent or proprietary medicines, manufactured and sold, in good faith, for curative or health-imparting properties, although they may contain a large percentage of distilled spirits as one of their essential ingredients; nor does the fact that men with strong appetites for drink occasionally buy such preparations, and by the use of them become drunk, furnish any adequate reason for classifying them as distilled spirits.</p> <p>2. Same—Deceptive Names.</p> <p>The law, however, is not to be evaded by mere deceptive names, and if alcoholic beverages in which the essential ingredient is distilled spirits, disguised by aromatic or other drugs, are commonly bought and sold as and for intoxicating beverages, the same are not to be classed as patent or proprietary medicines, by whatever names they may be known, and the seller thereof is liable to the tax as a retail liquor dealer.</p>

<p>This was n bill in equity by the Utica Fire-Alarm Telegraph Company and others against the Municipal Fire & Police Telegraph Company and others for infringement of a patent relating to fire-alarm boxes.</p>

This was an action at law by Thaddeus Hyatt against Ernest L. Ransome and others for infringement of a patent for improvements in compositions for floors, roofs, pavements, etc. In the circuit court there was a verdict and judgment for plaintiff in a nominal sum, and defendants bring error.

This was a bill by the Acme Harvester Company against William M. Frobes and others for infringement of a patent relating to hay rakes.

This was a bill by the New Departure Bell Company against the Hardware Specialty Company and others for alleged infringement of two patents for improvements in bells.

This was a libel by the Western Assurance Company of Toronto against the steam tags Eagle and Thomas Purcell, to recover damages for loss occasioned to the cargo of the canal boat McWilliams, through a collision with the Eagle while in tow of the Thomas Purcell.

<p>Shipping—Damage to Cargo—Negligence in Discharging.</p> <p>A steamship held liable for damage where bags of filberts, in the course of discharging, were placed so near the coal bunkers that dust from the ' coal blew upon and through the bags.</p>

<p>This was a libel by Antonio Davi against the steamship Victoria to recover damages'for personal injuries.</p>

These were applications by the Tolleston Club of Chicago, Jamos Stinson, the Michigan Central Kailwav Company, and John (Junzenhauser for leave to file itt this court a transcript of certain proceedings had in the circuit court of Lake county, Ind., in relation to the establishment of a drain, and to docket the said proceeding herein as a removed cause.

Action by Patrick Mulcahey against the Lake Erie & Western Railroad Company. There was a verdict for plaintiff, and defendant moves for a new trial.

<p>This was a suit by William Ziegler against the Lake Street Elevated Railroad Company and others to enjoin the performance of certain contracts.</p>

Action by Louis Engler against the Western Union Telegraph Company for jpersonal injuries. There was a verdict for plaintiff, and defendant moves for a new trial.

<p>Tills was a suit by William Pennington, as trastee for Louise Condit Smith and Sallie Barnes Smith, against Emma Gondit Smith and the Fifth Avenue Bank oí New York, to impress a trust upon certain funds.! The cause was heard on the pleadings and x>rooi's.</p> <p>There is, practically, no dispute regarding the facts. George Oondit Smith was tho trustee of a fund of §13,356.87, the beneficiaries being his two infant daughters. This trust was created by the will of his first wife, Sallie L. B. Smith, who died in July, 1890. By the terms of the will tho testatrix, after making certain specific bequests, gave one equal undivided half part of the remaining property to her husband and the other half to her children. The children’s share, during their minority, was to be held by their father in trust. At; the time of her death Mrs. Smith was a resident of New Jersey. Her will was proved before the surrogate of Essex county in that state and letters testamentary were issued to the said George Oondit Smith. her husband. In July, 1892, Mr. Smith married the defendant Emma Oondit Smith. In January, 1893, the residence at East Orange, N. J., which was the property of the first Mrs. Smith, was duly sold to Thomas B. Orossley, who executed a purchase-money mortgage thereon for §17,500 to “George Oondit Smith, personally, and as special guardian of Louise Oondit Smith and Sallie Barnes Smith, infants.” .The infants’ share in said mortgage was the said sum of §13.356.87 which Hie trustee duly acknowledged to be a prior lien 'to the balance of §4,143.13 due to him as1 an individual. On the 20th of March, 1894, Orossley paid §5,000 on the mortgage by check payable to the order of Smith individually find received a receipt signed by Smith “personally and as guardian.” This check was sufficient to pay Smith’s interest in Hie mortgage in full and §850.80 of the infants’ interest. George Gondit Smith indorsed this cheek to the order of the defendant, Emma Oondit Smith, and it was by her deposited in the (fifth Avenue Bams and collected. On the 25th of September, 12 days before the death'of Mr. Smith, Orossley made another payment of §5,000, the cheek being made payable to “Gao. Oondit Smith, Guardian.” The check was indorsed by Mr. Smith as guardian to the order of the defendant Emma Oondit Smith and was by her deposited; as before, in the Eifth Avenue Bank. Orossley also paid the interest on the mortgage by checks which were indorsed by Smith as guardian and were in like maimer deposited by Mrs. Smith in the defendant bank. On the 7th of October, 1891, George Oondit Smith died leaving a last will and testament by which he gave all his property to his widow, the defendant Emma Gondit Smith, and appointed her guardian of his children and executrix of Ms will. On the 16th of the same month the complainant was appointed by the chancellor of New Jersey “trustee for Louise Oondit Smith and Sallie Barnes Smith, severally, in the room and stead of George Oondit Smith, deceased, late of East Orange, in 1ho state of New Jersey, with all the rights, powers, duties and iniviloges incident to the appointment.” Before entering upon his duties he was required to give bond to the chancellor in the sum of §00,000 as trustee for each of said infants. By an order, dated October 16, 18ÍM, the complainant was also appointed “special guardian in the place and stead of George- Gondit Smith, special guardian, deceased, for Louise Oondit Smith and Sallie Barnes Smith, severally, with all the rights, powers, duties and privileges incident to the appointment.” He was required to give a bond of $15,000 as guardian of each infant George' . Oondit Smith died insolvent. At the time the defendant, Mrs. Smith, received the checks in question she knew of the interest of the infants in. the New Jersey property. By stipulation made at the argument the bill was amended by inserting an allegation that the parties are citizens of different states and also that the complainant was on October 16, 1894, appointed special guardian of the said infants. The bank has not answered, but there is a stipulation that it will hold the moneys, mentioned in the bill, subject to the decree of the court.</p>

Suit by the Mercantile Trust Company against the St. Louis & San Francisco Railway Company for foreclosure of mortgage. John B. Ogden and others tiled intervening petitions. By an net of the general assembly of the state of Arkansas, approved April 4, 1887 (Sand. & H. Dig. §§ 6211-6217), the maximum passenger rates on railroads in that state over 75 miles in length was fixed at three cents per mile.

This was a suit by Frederick P. Olcott against Fred A. Rice, T. W. House, William 0. Oliver, Elvira Hutchins, J. W. Jones, M. W. Garnett, E. P. Hill, Presley K. Ewing, Henry Brashear, and William M. Rice to establish a trust in certain lands. The circuit court dismissed the hill. Complainant appealed.

<p>This was a suit by Ezra V. Snively against the Loomis Coal Company to foreclose a vendor’s lien. The Phoenix Powder Manufacturing Company intervened, seeking payment for certain supplies furnished.</p>

Bill of interpleader by William C. D. G-rannis against William 1. Quintard and Joseph M. Bailey, Jr. The latter defendant having died pending suit, his executors, Joseph M. Bailey and James H. Stearns, were substituted as parties defendant in his stead. There was an interlocutory decree allowing interpleader, and thereupon an issue was made up between the defendants.

<p>Bill or Lading—Deficiency in Cargo.</p> <p>Defendant's vessel was eliartered to caivy a cargo of grain in bulk from S. to B. Tlie grain was weighed into the vessel at S. from an elevator, under the supervision of a weiglnnastei- for the elevator, an assistant stab! w'eighmaster, and a tally keeper for the vessel; and defendant gave a bill of lading, in accordance with their count, for 81,000 bushels, such bill of lading providing: “All the deficiency in cargo to be paid for by the carrier, * * * and deducted from the freight, and any excess in cargo to be paid for to the carrier by the consignee.” Upon arrival at B., it was ascertained that only 79,498 bushels were on board, the difference being due to a mistake in the weighing at S. Held, in an action by the assignee of the consignor, that the carrier was liable for the shortage in the cargo, though the grain, had never actually been loaded on board the vessel.</p>

<p>Attorney and Client—Contract.</p> <p>Plaintiff, an attorney at law, who had formerly been retained by defendants and others to enforce payment of certain coupons on municipal bonds, and had lone so suceéssfully, wrote defendants, informing them that an officer of the city issuing the bonds had proposed to retain him to resist their final payment, recalling his former connection with defendants, and requesting defendants to confer with the bondholders, and notify plaintiff if they desired to retain, him. Defendants replied that they would see the bondholders as soon as they could, and learn their wishes, but that they entertained no doubt the bondholders would desire plaintiff’s services, and requested him to hold himself in readiness to represent them. Plaintiff replied that he had notified the city authorities that he declined representing them, because of defendants’ retainer. No reply was sent to this letter. Held, that the correspondence showed a contract of retainer between the parties.</p>

This suit was brought in the court below by the Kentucky Refining Company, a Kentucky corporation, against the Merchants’ & Planters’ Oil Company, a Texas corporation, domiciled at Austin, Tex. The suit was instituted May 1, 1893, to recover eight oil-tank cars, of the alleged value of $625 each, and of the total value oí $5,000, and for the rental of the cars at $40 per day each. Sequestration of the cars was prayed for, and writ executed May 4, 1893.

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

<p>1. Trial—Instructions—Requested Charoes.</p> <p>The court is not bound to give requested charges the substance of which has been accurately and soundly stated in the general charge.</p> <p>3. Same—Refusal to Give General Ciiaeoe.</p> <p>Refusal to give a general charge for defendant is not erroneous where there Is proof tending to support plaintiff’s case, although the preponderance of proof may appear to be against him.</p>

This was an action at law by Martha Groves and William J. Groves against George W. Sentell to recover $4,873, with interest at 8 per cent, from… Held: however, affirming the decree, that, in view of the specific nature .of the supreme court’s directions, the circuit court could do nothing bur enter the decree which had been entered, and that it must be presumed that the supreme court had passed upon all the issues, for which reason the circuit court had no power to order…

This was a bill by A. B. Header, trustee of the Blymyer Ice Machine Com. pany, a corporation of Ohio, against the Bridgeport Electric & Ice Company, an Alabama corporation, to compel defendant to give a mortgage, pursuant to tbe terms of a contract, for a balance due upon the purchase price of an ice machine sold to defendant by the Blymyer Ice Machine Company; and, in case such mortgage was not given, to declare and establish a lien and have the same foreclosed.

<p>1. Regulation on Interstate Commerce -Long and Short Haul.</p> <p>The prohibition against charging a greater compensation, in the aggregate, for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance, over the same line, in the same direction, the shorter being included in the longer distance, does not apply, except where' the charge for transportation is made under substantially sim- . ilar circumstances and conditions for the shorter as for the longer distance.</p> <p>2. Same.</p> <p>The courts are left to decide what are “substantially similar circumstances and conditions.” Neither the congress, in making the law, nor the courts, in construing it, can fail to note the element of competition as it enters into the industrial life of the people, and perhaps in no department is it more important than in the carrying trade of the country. It could not have teen the purpose of congress to ignore or to regard with disfavor the compering forces and interests, which, in many cases, result in so much benefit to so many classes of people.</p> <p>3. Same.</p> <p>In the presence of competing lines of transportation from and to distant points, the circumstances and conditions are not the same as in cases where there are no questions of competing lines, and no questions of reduced rates of transportation between different and distant points, to be considered.</p> <p>4. Same—“Basing Points” or “Trade Centers.”</p> <p>While there may be cases where “basing points” or “trade centers” are fixed and determined arbitrarily, for the purpose of building up one locality at the expense of another, in violation of the spirit and provisions of the act of congress, it is common knowledge that Montgomery, Ala., was a distributing point before the railroad system was known, and when there were no trunk lines of railroad such as are now competing for a share of her business.</p> <p>5. Same.</p> <p>Such basing points or trade centers as Montgomery, Ala., and Columbus, Ga., are necessarily determined by competition between lines engaged in, and seeking a share in, the. carrying trade of the country. Water transportation is doubtless a large factor in the determination of such basing ■ points. Other considerations may enter into the matter, but the real source of tt must chiefly be found in the competition between the great lines of transportation, reaching out, as they do, for a share in the commerce. of the country, and, as a general rule, cheapening the necessaries of life brought to every man’s door.</p> <p>6. Same—“Combination Rates.”</p> <p>•A “combination rate” (made by adding to a competitive through rate, charged between a point of shipment and a basing point, a noncompetitive local rate charged between such basing point and a local station beyond) is not violative of the act to regulate commerce. In this case, to compel a reduction of tlie local rate to the same rate per ton per mile as the through k te would not pay operating expenses, and would be ruinous to the Alabama Midland Railway Company.</p> <p>7. Same—“Ubdue or Unreasonable Preeekence or Advantage.”</p> <p>The words “undue or unreasonable preference or advantage,” contained in the third section of the act to regulate commerce, plainly imply that every preference or advantage is not condemned, but such, only, as are undue or unreasonable.</p>

<p>Cigarettes—License to Sell--Interstate Coaímerce—•Pone® Rbouuatio»'.</p> <p>Act W. Ya. B’ob. 21, 1895, amending and re-enacting Code, c. Ü2, § 06, so as to provide iliac a certain license feo shall l»e paid for selling cigarettes at retail, go far as it applies to eifjaroitra imported from another stale and sola by the importer in West Virginia in Hie original package, and to cigarettes manufactured in another suite and by the manufacturer sent into West Yirfi'inia in the original package, for sale by the agent of the manufacturer, and so sold in such package by such agent, is not an exorcise of the police power of the state, but a regulation of interstate commerce, and therefore void.</p>

This is an appeal by the importers from a decision of the board of United States general appraisers overruling a protest against the decision of the collector at Plattsburgh, N. Y., subjecting to duty certain importations of lumber popularly known as “red cedar.”

<p>Patents rob Inventions—Infringement—Electric Lights.</p> <p>Letters pntent No. 219,208, issued September 2, 1879, to Charles E. Brush, for an elec trie' light regulator, consisting of two or more pairs or sets of carbons in an electric lamp in combination with mechanism to separate such pairs dissimultaneously or successively, are not infringed by lamps made under patents No. 418,758, No. 502,535, and No. 502,538, issued to Charles E. Scribner, since such lamps do not contain mechanism constructed to cause the dissimultaneous initial separation of the carbons.</p>

<p>Infringement of Patents—Coal Screens and Chutes.</p> <p>The Roberts reissue, No. 7,341, for an improvement in coal screens and chutes, consisting principally in a reservoir between the receiving hopper and the delivery chute, held not infringed by an apparatus which has no reservoir., but uses a gate near the end of the chute by which the flow of the coal can be controlled. Black Diamond Coal Min. Co. v. Excelsior Coal Co., 15 Sup. Ct. 482, 156 U. S. 611, followed.</p>

<p>I. Patents—Infrts'oumk'xt Suits—Jurisdiction and Practice.</p> <p>The power oí the courts to declare, on demurrer to the bill, that a patent sued on is invalid on its face for want of novelty and utility, is well settled; but such power should not be exercised except in a very plain case, and where the conduct of the complainant shows that the suit _is brought to harass mere dealers, and not manufacturers,</p> <p>g. Same—Flexible Paper.</p> <p>The McLauehlin patent, No. 511,789, and the Scott patent, No. 210,108, relating to processes of manufacturing flexible paper, are void for want of novelty and invention.</p>

<p>1. Jurisdiction of Circuit Court of Appeals—Appeals from Preliminary Injunctions.</p> <p>On appeal from an order granting a preliminary injunction, the circuit court of appeals cannot, hy reason of any action of the circuit court, be enabled to finally determine the matters in controversy. Its power is limited to a consideration of the correctness of the order from the same standpoint as that occupied by the court below; and the order will not be disturbed unless the discretion of the circuit court was improvidently exercised. Blount v. Societe'Anonyme, etc., 3 C. C. A. 455, 53 Fed. 98, 6 U. S. App. 335, followed.</p> <p>2. Same—Adjudications in Other Circuits.</p> <p>On an appeal from an order granting a preliminary injunction in a pat 'ent case, a prior adjudication by the circuit court of another circuit su' taming the patent and finding infringement is entitled to the same co sideration as in the court below, and is sufficient ground for affirming tl. order. Blount v. Societe Anonyme, etc., 3 C. C. A. 455, 53 Fed. 9S, 6 U. S. App. 335; American Paper Pail & Box Co. v. National Folding Box & Paper Co., 2 C. C. A. 165, 51 Fed. 229, 1 U. S. App. 283; Electric Manuf’g Co. v. Edison Electric Light Co., 10 C. C. A. 106, 61 Fed. 834,—followed.</p> <p>3. Patents—Printing Presses.</p> <p>The Kidder patent, No. 291,521, for a printing machine, and the Stonemetz patent, No. 376,053, for a web printing machine (being an improvement on the Kidder machine), construed, on appeal from an order granting a preliminary injunction, and held valid and infringed—the former as to claims 1, 2, and 7, and the latter as to claim 12. Campbell Printing-Press & Manuf’g Co. v. Harden, 64 Fed. 782, followed.</p> <p>4. Same—Preliminary Injunction—Bond for Damages.</p> <p>Where complainant was not operating under the patent sued on, and an injunction would break up defendant’s business, and it also appearing that defendant had already given chattel mortgages on its property, to secure creditors, held, that an injunction would be granted unless, within 10 days from the going down of the mandate, defendant should give bond with sureties conditioned for. payment of all damages which might be awarded.</p>

<p>Final Hearing in Equity.</p> <p>This action is brought by the Thomson-HoustoD Electric Company against the Elmira & Horselieads Railway Company, a corporation operating an electric railway in the city of Elmira, N. Y., for the infringement of letters patent, No. 424,695, granted April 1, 1890, to Charles J. Yan Depoele for improvements in suspended switches and traveling contacts for electric railways. The original application was filed March 12, 1887. It was divided and the application for the patent in suit was filed October 22, 1888. The invention relates to mechanisms and combinations thereof by which an electric railway having branches and turnouts may be operated automatically without regard to the height of the conducting- wire, or its parallelism to the center of the rails. The specification says: “My present invention relates to electric railways of the class in which a suspended- conductor is used to convey the working-current, a. traveling contact carried by the car being employed for taking off the current for use in operating the motor by which the car is propelled. The return-circuit is preferably completed through the rails of the track. My invention consisis in certain devices and their relative arrangement by moans of which a contact device carried by a rod or pole extended from the car and pressed upwardly into contact with the conductor is switched from one line to another correspondingly with the vehicle. * ® * More particularly my invention consists in a track-switch for the vehicle, a conductor-switch for the contact device or ‘trolley,’ as it is termed, and the trolley device attached to the vehicle, those elements being so arranged relatively to one another that in- operation the vehicle reaches the track switch and is diverted laterally before the trolley reaches the conductor-switch, whereby the trolley, which partakes of the lateral movement of the vehicle, has imparted to it a lateral-moving- tendency before its switch is reached, and it therefore passes through the switch in a proper direction, corresponding to</p> <p>the movement of the vehicle. My invention also consists in various details of- construction - and arrangement, which will be hereinafter pointed out.” The inventor after describing the drawings continues as follows: “In order that the contact-wheel. E, shall be compelled to pass from one conductor to a branch or one attached thereto leading in a different direction, I provide the inverted open-bottom metallic boxes, I, which are formed with branching .compartments, and constructed in the form of switches’, conforming to„ the curves and angles of the track-switches by which the direction of the car is controlled. These boxes are in the form of open smooth curved passages and are free from obstructions within so that the contact-wheel, E, which is slightly depressed on meeting the end of the switch-box, may roll freely • therethrough and move, laterally therein in the desired direction without hindrance. * * * The electric switches, I, are to be placed directly over— that is to say, above—their cormterparts. The track switches and the contact-wheel, as, before stated, are to be located so that as the front portion of the car swings in the desired direction as the front wheels pass the track-switch the contact arm will be deflected and the direction of the wheel, E, correspondingly changed while still on the straight wire, so that on reaching the switch bc-x the wheel will be depressed and pass thereinto and naturally pass through and out of the proper compartment thereof. The switch boxes, I, being conr.eeted directly to the conductors, D, are similarly charged and when the wl eel, E, is passing therethrough the current passes through the box, I, and tl .ence into the contact-wheel, through its flanges, e, passing thence through the arm, F, or a separate conductor to the motor, 0. Since there are no moving to agues or springs or points to catch or impede the progress of the wheel when three or four grooves, as the case may be, exist in. one switch-box, the wheel will intersect the grooves and pass along in the desired direction and go through without any difficulty whatever, its direction being pre-. viously indicated by the movement of the front portion of the car. Thus it will be seen that by locating my traveling contact-wheel in the position shown or one equivalent thereto I obviate all the difficulties of switching from conductor to conductor and with the smallest possible amount of special construction. I believe myself to be the first to devise this arrangement of contact device and switches, whereby the lateral movement of the vehicle is first imparted to the trailing-contact arm and the contact-wheel is then flexibly, yet without interruption of contact, drawn into the switch and guided thereby into engagement with the desired branch conductor, and I intend herein to claim broadly, any relative arrangement of track-switch, conductor-switch, vehicle, and contact device by means of which the former switch will act in advance of the latter and the vehicle impart a lateral tendency-to the trailing contact by the time it engages with the conductor-switch. The contact-carrying arm described in the present application possesses substantial practical advantages ever any other means yet proposed for establishing moving contact between a vehicle and a stationary supply-conductor, in that by the use of a hinged flexibly-mounted arm much greater freedom of movement is compatible with the maintenance of a positive mechanical connection and electrical contact between the vehicle and supply conductors.”</p> <p>The patent may be divided as follows: First, the contact device, commonly known as the “trolley;” second, the support therefor; and, third, the overhead switching devices. The contact device belongs to the class known as “under-running” contacts. It consists of a grooved wheel mounted upon a pivoted support on the roof of the car having a sufficient capacity of vertical and lateral automatic adjustability and capable of being detached and lowered by an attendant on the car platform. This support is a pole or arm mounted on I,he roof of the car and pivoted and swiveled so as to be capable of swinging both vertically and horizontally. Attached to the short arm of this pole is a weighted spring which operates to maintain normal contact between the grooved wheel and the suspended conductor. The overhead switching devices are placed at points on the line of the road where branches and turnouts occur, and where the overhead trolley wires are required to branch correspondingly with the tracks. The object is to transfer the trolley from the main wire to the branch wire and vice versa without interrupting the contact. The switching device as shown in the patent consists of a Y-shaped plate of sheet metal, with depending side flanges. This plate is seemed to the underside of the trolley wire at the point where it branches, the narrow end being turned in the direction of the main wire and the other end being connected with both the main and branch wire. The narrow end is wide enough to permit of the easy movement of the trolley-wheel through it while Hie other end is wide enough to permit the wheel to move out in the direction of either the main or the branch wire. The switch device is placed at the junction of the main and branch wire above the corresponding switch on the track and the wheel is to be so supported on the roof of the car that it will not reach the switch box until at least the forward wheels of the car have passed the junction of the main and branch track. Thus the switch box will guide the wheel automatically upon dial one of the trolley wires which corresponds with the track upon which the car has been directed.</p> <p>The patent contains 33 claims, all of which are said to be involved, except those relating to the fender for the trolley wheel. These so-called “fender claims,” numbered 18, 28, 29 and 80, were withdrawn at the argument. The other claims may be divided into groups as follows:</p> <p>“Claims relating to the construction and attachment of the conductor switch.</p> <p>“(1) The combination, with crossing or branching overhead wires, of a plate along- the toy of which said wires pass, and deflecting-ribs at the lower side of said plate at its extremities. (2) The combination, with an overhead conductor arranged to receive a traveling underneath contact, of a switching device secured to and depending from the conductor. (3) The combination, with an overhead wire for receiving an underneath contact, of a switcli-plate attached to tlio wire in about the same horizontal plane as the wire. (9) In an electric railway, a switching device for suspended conductors, comprising two or more branching compartments or ways corresponding to the direction of the track, and of the main and branch conductors, and secured to the said suspended conductors, substantially as described. (10) In an electric railway, a switching device for suspended conductors, consisting of an open-bottom box formed with two or more branching compartments corresponding to the direction of the track and arranged to be secured to the conductor, substantially as described. (It) The combination, with an overhead line-wire, of a grooved contact device pressed against the wire and receiving 1'lie wire between the flanges of the groove, and a guiding switch-plate connected to the wire against which the said flanges bear in passing from one line to another. (12) In an electric railway having an electric conductor suspended above the track, a switching device supported by the conductor and formed with flownwardlyopen compartments or ways corresponding with the direction of the track, said ways being substantially flat at tlieir upper sides to form paths for the flanges of the contact-trolleys, substantially as described. (13) In an electric railway, a switch for suspended conductors, consisting of a box formed with branching compartments corresponding with the branches of the conductor, and of the track-switches and secured to the said suspended conductors, substantially as described. (14) In an electric railway, a switch for suspended conductors, consisting of a box formed with brandling compartments corresponding with the branches of the conductor, and of the track-switches, and secured to and depending from the said suspended conductor, substantially as described. (19) In an electric railway, the combination, with branching overhead conduciors, of an upwardly-pressed contact-arm carrying a grooved wheel embracing the conductor, and a switcli-plato at 1he branching point adapted to receive the tips of the wheel flanges, and provided with depending ribs, between which the wheel is free to move laterally to engage with one of the branch conductors. (28) The combination, with branching overhead conductors, _ of a vehicle having a laterally-swinging contact-arm piessod upward to engage the conductors, and a switch-plate at the branching point having depending sides, but open at its extremities, the interior width of the plate between the sides being greater than the thickness of the contact-wheel, whereby the wheel is free to move laterally with relation to the main conductors and engage one of the branching conductors.</p> <p>“Claims relating to the centralizing spring.</p> <p>“(21) In an electric railway, the combination, with main and branch overhead conductors, of a vehicle, an intermediate contact-arm thereon movable laterally with respect thereto, a spring tending to return the arm to its normal central position, a guiding-switch at the branching point of the .conductor, and a track-switch for the vehicle located so as to operate in advance of the conductor-switch, whereby the lateral tendency of tlio contact device at the branching point is imparted to it by the vehicle, while its outer extremity is flexibly guided by the overhead switch from main to branch conductor. (2-3) In an electric railway, the combination, with branching line-conductors, of a track-switch, a vehicle, an intermediate contact-arm swinging laterally with respect to the •"■ehicle, but provided with a spring tending to restore it to its normal central position, and a lateral defleeting-switch at the branching point of the conductors, whereby the extremity of the contact-arm may be flexibly guided from main to branch conductor. (31) In an electric railway, the combination, with an overhead conductor and a vehicle, of an intermediate contact device consisting of a trailing arm having a grooved contact-wheel at its outer end and moving laterally relatively to the vehicle, but provided with a spring tending- to retain it in its normal central position. (32) In an electric railway, tile combination, with an overhead conductor and a vehicle, of a trailing contact-arm guided at its outer end by the overhead conductor, and movable laterally relatively to the vehicle, but having a normal centralizing tendency by moans of a spring or weight. (33) In an electric railway, the combination, with an overhead conductor and a vehicle, of an intermediate contact device consisting of an upwardly-pressed trailing arm having a grooved contact-wheel at its outer end by which it is guided by the conductor, the said arm being free to swing laterally relatively to the vehicle, but tending to remain in its normal central position by means of a spring or weight. (34) The combination, with a vehicle and an overhead conductor, of a trailing contact-arm guided normally by the conductor, but having a spring-connection, with the vehicle tending constantly to maintain it in a definite position, while at the same time it is free to swing laterally with respect to the vehicle against the pressure of the said spring. (35) In an electric railway, the combination, with an overhead conductor and'a vehicle, of an intermediate contact device consisting of a rearwardly-extending arm guided at its outer extremity by engagement with the conductor and movable laterally relatively to the vehicle, but having a spring or weight tending to restore it to its normal central position.</p> <p>“Claims relxting to the weighted tension spring.</p> <p>“(15) In an electric railway, the combination of a ear, a conductor suspended above the line of travel of the car, a contact-carrying arm pivotally supported on top of the car and provided at its outer end with a contact-roller engaging the under side of the suspended conductor, and a weighted spring at or near the inner end of the arm for maintaining said upward contact, substantially as described, (16) In an electric railway, the combination of a car, provided with a pivoted arrx, as F, having a contact at its outer extremity, a tension-spring, as G, attached at its inner extremity, and a vertically-moving weight connected to said spi-ing for holding the same in operative relation to the arm throughout its entire range of movement, substantially as described. (17) In an electric railway, the combination of the car having suitably-pivoted arm, F, carrying a contact-wheel at its outer extremity, a spring, G, secured to its lower extremity, and a connection extending from said spring and provided with a weight at its lower end, substantially as described.</p> <p>“Claims relating to the directive action of the track switch, or the combination of the conductor switch and trolley, with the track switch.</p> <p>“(4) The combination of a track having switches, an overhead conductor above the track and having switches, and a car on the track provided with a contact-carrying arm arranged to engage the conductor at a point in rear of the front wheels of the car. (5) In an electric railway, the combination of a track having suitable switches, an electric conductor suspended above said track and having switches located above the track-switches, and a car on said track provided with an upwardly-extending arm carrying a contact-wheel arranged to engage the suspended conductor at a point in rear of the front wheels of the car, substantially as described. (6) In an electric railway, the •combination of an electrically-propelled car, a supply-conductor suspended over the line of travel of the car, a swinging arm mounted upon the car and carrying a contact device at its free end, said contact arranged to bear against said ■conductor, suitable switching devices upon the track traversed by the wheels of the car, and corresponding switches on the suspended conductors located above those on the track and arranged to engage the contact devices, substantially as described. (7) In an electric railway, the combination of a track having suitable switches, an electric conductor suspended above said track and having switches located above the track-switches, a car on said track provided with a swinging arm carrying a contact-wheel arranged to engage the suspended conductor, and switches at a point in rear of the front wheels of Hie car, whereby the contact-wheel is directed'through the proper part of the suspended switch, substantially as described. (8) In an electric railway, the combination of a switch or turn-out on the track and a corresponding one on the overhead line, the same being so arranged relatively that the car will reach the switch or turn-out before the trolley does, substantially as described. (20) In an electric railway, the combination, with an overhead switch-plate having depending ribs, but open at its extremities, of main and branch conductors extending from its two extremities, respectively, a vehicle, an upwardlyrpressed contact-arm attached to the vehicle and tending to move laterally therewith, and a track-switch for the vehicle located so as to operate in advance of the conductor-switch. (22) In an electric railway, the combination, with main and branch conductors, oí a vehicle, a contact-arm thereon having- vertical and lateral spring-pressure, a switch-plate for the conductors, and a track-switch for the vehicle located so as to operate in advance of the conductor-switch, whereby the lateral tendency of the contact device at the bi anching point is imparted to it by the' vehicle, while its outer extremity is flexibly guided by the overhead switch from main to branch conductor. (25) In a branching electric railway, the combination of a track-switch, an overhead conductor-switch, and a vehicle having a rearwardly-extending contact-arm whereby the track-switch will operate in advance of the conductor-switch. (26) In a branching electric railway, the combination, with a vehicle, of a track-switch, an overhead conductor-switch, and a contact-arm extending upward ■from the vehicle to the conductor, and so located relatively to the length of the vehicle and the two switches that the lateral movement of the vehicle will give a corresponding movement of the contact device on the conductor-switch. (27) In a branching electric railway, the combination, with a vehicle, of a track-switch, a contact device consisting of a trailing spring-pressed arm having a grooved contact-piece embracing the conductor and guided thereby, the fluid arm being jointed to the car and tending to move laterally therewith, and an over-head couductorswiteh adapted to engage the contact-piece and whereby the extremity of the arm is flexibly guided from main to branch conductor.”</p> <p>The parties do not agree as to the grouping of some of these claims, but it is thought that the above arrangement is as convenient as any.</p> <p>The defenses are anticipation, lack of patentability, noninfringement, and as to a part of the defendant’s ears, estoppel because of an alleged license.</p>

<p>This was a suit by the Carter-Grume Company and others against George F. Watson and others for infringement, of a patent for a counter check hook. Complainants moved for a preliminary injunction.</p>

<p>1. Patents foe Inventions—Infringement—Gratn Separators.</p> <p>The first claim of letters patent No. 343,324, issued June 8, 1886, to Christian K aspar, for an improvement in grain separators, consisting of a case formed with enlargement near its top, and deflector, in combination with inclosed screens, forming a zigzag grain channel fixed rigidly in the sides of the case, with an adjustable grate located in the enlargement to regulate the speed of the grain, and a gate operating between the grate and the deflector, is not infringed by a device having, a fixed grate instead of an adjuslable one.</p> <p>2. Same.</p> <p>The third claim of said patent for an inclined grate comprising longitudinal bars angular in cross section, and set at an angle in the plane of the grate surface, is not infringed by a device having round bars, not set at an angle.</p>

<p>This was a suit in equity by Bass, Ratcliff & Gretton, Limited, against Isaac Guggenheim or and Albert Weil, trading as Guggenheim er, Weil & Co., for infringement of a trade-mark.</p>

<p>Admtrai/ty Jurisdiction---Mariners’ Wages—Voyage not Performed.</p> <p>VVliero river pilots were employed, at a specified rate, to go on a particular voyage on the next-rise in the river, and, though the rise came, the voyage was not performed, held, that they could not maintain a libel in rein for wages, it appearing that they never performed any labor under the contract and never went on board, but only reported to the captain’s office on shore, where they were told that the trip would not be made.</p>

This is a petition by the Chattanooga Terminal Railway Company against S. M. Felton, receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company, for a prohibitory injunction against the use and. occupancy of certain switches, and for a mandatory injunction requiring the removal of such switches.

<p>This was an action at law by Augustin Daly against William A. Brady to recover for alleged infringements of a copyright.</p>

<p>This was a bill in equity by Adelaide H. Osgood against the A. S. Aloe Instrument Company for infringement of a copyright. Complainant excepts to- certain parts of the answer.</p>

This was a petition filed by Franklin Harris in the consolidated causes brought, respectively, by Elias Summerfield and the Central Trust Company of New York against the Chattanooga Southern Railroad Company, praying payment of the sum of $600 for services rendered, and asking that the claim be decreed a prior lien to that of the mortgage bonds, and be directed to be paid either out of the net earnings of the receivership, or out of the proceeds of the sale.

<p>1. Practice—Nonsuit at Suggestion or Court.</p> <p>A judgment of nonsuit, taken in deference to the opinion of the court upon a question of law which disposes of the case, is subject to review on writ of error.</p> <p>2. IGv'dknce—Boundaries.</p> <p>In an action of ejectment declarations of a chaiD carrier as to the location of certain lines in the survey in which iie took part, which lines, without regard to the location of others, necessarily include the land in controversy, are sufficient to require the submission of the question of . boundary to the jury.</p> <p>3. Same—Possession ov Land.</p> <p>In an action of ejectment, evidence of a declaration of one of the defendants, made on the premises, that they had dug a mining shaft and cut timber to build a fence and cabin on the xu-einises, to establish their possession, with evidence that the fence and cabin remained on the land and had been kept up by the defendants, who liad also employed an agent to soil the land, is sufficient to require the submission of the question of possession to the jury.</p> <p>4. Same—Proceedings in Suit—'Recitals tn Decree.</p> <p>The recitals in a decree duly entered in a foreclosure suit are sufficient prima facie evidence of the previous proceedings therein, although the original papers showing such proceedings are missing.</p>

Two separate aelions of replevin, instituted by McJMlweo & Carney, as plaintiffs, to recover the possession of a large quantity of lumber from the Metropolitan Lumber Company, were by agreement consolidated and tried together. The judgment was against the plaintiffs and for the defendant, in the sum of $29,001.05, the value of the lumber taken from the possession of the defendant by the writ of replevin. The plaintiffs have sued out this writ, of error.

<p>In Error to the District Court of the United States for the District of Kentucky.</p> <p>This was a proceeding by the United States and W. M. Smith, attorney, against the High Bridge Lumber Company for the condemnation of certain lands. Judgment was entered in the district court awarding the defendant $4,750. Defendant brings error. Affirmed.</p> <p>This was ‘an action by the United States for the condemnation of 10,232 acres of land the property of the plaintiff in error, and necessary to the erection and maintenance of a lock and dam for the improvement of the Kentucky river. The proceeding was by petition, filed in the district court of the United States for the district of Kentucky. The suit was begun and prosecuted under and by virtue of an act of congress which authorizes the secretary of war to cause proceedings to be instituted, in the name of the United States, and in the United States circuit or district court of the district wherein such real estate is located, “for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers and harbors for which provision has been made by law; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted.” That act, by section 2, provides that.: “The practice, pleadings, forms and modes of proceedings in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the states within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding.” Act Aug. 1, 1888 (2 Supp. Rev. St. 601). Kentucky has no statute providing for the condemnation of private property for any other than railway construction, and the only procedure in suits of this kind is that prescribed for the condemnation of lands for railroad purposes. Barb. & G. St. Ky. § 835 et seq.</p> <p>The practice pursued in this case was that prescribed in the section above cited. Upon the filing of the petition describing the property sought to be condemned, the purposes to which it was to be put, and the authority for the application, a,n order was made requiring the defendant to appear and show cause why commissioners should not be appointed to assess the value of the land desired and the damages sustained by the owner. Upon appearance, and after argument, three commissioners were axipointed. These commissioners, by the order of appointment, were directed to go upon the land and assess the value and damages as therein directed, and report their finding in detail,— “that is, they will say what is the actual present cash value of the land condemned; then they will report the amount of damages, if any, that may result to (he adjacent lands of said owners, and they will report in full in what said damages consist; then they win report the amount in value of the benefits that may result to the land, and in what said benefits consist. But they will not consider any damages that may result to adjacent properly of defendant toy reason of any overflow, or any other damages that may hereafter result toy the construction or operation of said lock and dam, such damages not toeing considered in those proceedings.”</p> <p>The defendant, the High Bridge Lumber Company, was a corporation of the state of Kentucky, owning and operating a large sawmill upon the bank of the Kentucky river. To the order of the court instructing the commissioners as io 1ho measure of valúa!ion, the defendant then and (hero objected and excepten. The commissioners thus appointed filed a report in these words:</p> <p>“The undersigned, commissioners appointed by the district court of the United States, district of Kentucky, as shown by copy of the order of court herewith attached and marked Exhibit D, after being duly sworn, as shown by Exhibits A, B, and G, hereto attached, have valued the land, containing 10,232 acres more or less, lying in Jessamine county, state of Kentucky, at thirty-five hundred dollars (§3,500). The commissioners find that this land is used occasionally for storing logs along the water front, and that the company has been renting the biddings located thereon to its employes for the sum of ono hundred and seventy-five dollars ($175) per annum. This earning power and the occasional use of the land for storing logs, together with the value of the spring to the company, was the basis for the above finding. The adjacent land of the defendant lying down the river and west of the laud condemned, is damaged to the extent of seven hundred and fitly dollars (§730). The taking and cutting this part of the land from that of tire main property of the defendant prevents the advantageous use of the same as heretofore. This land was valued on the basis of $1,000, based on its earning power for Hie purpose for which it was used, and the commissioners consider that it would he damaged 75 per cent. The land adjacent to the land condemned and east of it up the river and on which the mill and lumber yard are located, (he commissioners find: First. One hundred dollars (§100) for a fence necessary to the defendant to separate its property from that condemned. Second. 'The commissioners find four hundred dollars (§400) the cost necessary to level the ground for lumber storage purposes. Third. The commissioners further find fifteen hundred dollars (§1,500) for the extra expense the defendant would have to incur toy reason of the extra hazard in the way of fire risk during the construction of the lock and dam. This was based on an advance of about one per cent, on the present rate of insurance. The property on hand was valued at §50,000, making it necessary for the defendant'to pay out for such increased risk §500 per annum, and for three years (which time it is estimated it will take to completo the lock and dam) they would have to incur an expense of (§1,500) fifteen hundred dollars. The commissioners find that no benefit will result to the land. The commissioners have not considered any damages that may hereafter result by reason of any overflow, or any other damages that may hereafter result by the construction or operation of said lock or dam. The land sought to be condemned in this action is the property of Hie High Bridge Lumber Company, a corporation, • and its principal place of business is at High Bridge, Jessamine county, Kentucky.</p> <p>“O. C. Mengel, Jr.,</p> <p>“L. H. Willis,</p> <p>“W. W. Stephenson,</p> <p>“Commissioners.”</p> <p>Exceptions to this report were filed by the plaintiff in error, in words and figures as follows:</p> <p>“(1) The commissioners erred in not allowing the High Bridge Lumber Company damages for the depreciation, by the lock and dam number 7, of its plaid situated upon the eastern end of its property adjoining ilie 10,232 acres of land sought to bo condemned herein; that said plant will he diminished in value by reason of the building of the lock and dam number 7 at the at which the same has been located, being about 400 feet down the river from the.lumber yard of the High Bridge Lumbe: Company, with the lock on the Jessamine county side of the river, on which side defendant’s property is .situated, to the extent of 25 per cent, of its value,—that is to say,_ in the sum'of at least $10,000. (2) The commissioners erred in not considering any damages that may hereafter result to defendant by reason of overflow of the lands of the High Bridge Lumber Company in consequence of the building of 1he dam aforesaid. (3) The commissioners erred in not considering the damages that will hereafter result to the traffic and business of defendant, High Bridge Lumber Company, by the construction of said lock and dam. (4) The report of the commissioners is incorrect, incomplete, defective, and erroneous, because the court erred in instructing the said commissioners that they should not consider any damages that may result to adjacent property of defendant, High Bridge Lumber Company, by reason of any overflow or any other damages that may hereafter result by the construction or operation of said lock and dam number 7, and the court erred in adjudging that such damages are not considered in these proceedings. (5) The said report of the said commissioners is defective and incomplete, because the said commissioners failed to make any inquiry as to the location of the gateway of the dam, and to ascertain on which side of the river the gateway of the dam—that is to say, the lock pit—is to be situated. That the location of said gateway of the dam or lock pit is a material and important point in this proceeding, and the location of the same on the Jessamine county side of the river has been determined upon by the engineers of the United States in charge of said work, and that fact could have been ascertained by the said commissioners by application to said officers. The damages resulting to the High Bridge Lumber Company from the location and erection of said gateway of the dam, or lock pit as aforesaid, could have been ascertained by the said commissioners. It was the duty of the said commissioners, under the instructions of the court, to report the damages that will result to the business and property of the defendant by reason of the location and erection of said gateway or lock pit as aforesaid, and the consequent changing of the trafile of the Kentucky river at that point. That the whole business of the High Bridge Lumber Company will be seriously affected thereby, and great damage will result to it in the operation of its business, from the fact that it will not be able to supply its mill with log's without great cost and inconvenience, and consequent loss and damage. That the business of said mill from the river will be changed to such an extent that it will be impracticable for the High Bridge Lumber Company to bring its logs down the river to the mill, except at great expense, and by the construction of a boom, and the employment of 'a large force of mor, on heavy wages, and the profits of its business would be thereby greatly diminished, and the value of its plant and business impaired, to tlie extent aforesaid. (61 The lands of defendant will be overflowed by tlie damming of the Kentucky river, as aforesaid, and its property and plant damaged in a large sum, to wit, in the sum of $2.000. The defendant will be compelled to change and reconstruct part of its mill plant, and be forced to cut down trees and clear its land on the said river, in order to get logs to its mill, and to maintain its landing for its supply of logs for its business, and the commissioners erred in not allowing defendant • damages for such necessary changes of its plant and manner of doing business, and such overflow of its lands. (7) The boiler and a large an<j indispensable portion of the machinery of the High Bridge Lumber Company is situated in a cellar .under the mill, and the overflow of the water which will result from the construction of the dam, and the operation thereof, will submerge the said boiler and machinery, and ruin the same, and stop the operations cf said mill, to the damage and injury of the said High Bridge Lumber Company in a great sum of money, to wit, $-; and the commissioners erred in not assessing and allowing to said lumber company damages for such overflow and destruction and damage of said boiler and other machinery.”</p> <p>The United States excepted to so much of the report as awarded to the plaintiff in error the sum of $1,500 for increased cost of fire insurance, «loomed a result of increased danger by fire during construction of tlie look and dam. All the exceptions filed, by plaintiff in error were overruled. The excel)lion taken by the government was sustained. Tlie report thus corrected was confirmed, and judgment awarded accordingly. The action of the court in overruling- the exceptions of the plainüff in error, and its action in sus1 «lining the exception filed by the defendant in error, is the subject of the ansig'innent of errors filed by the plaintiff in error.</p>

This was an application in behalf of the United States for a review of the decision of the board of general appraisers reversing the action of the collector of the port of New York as to the rate of duty on certain merchandise claimed by H. 'Wolff & Co.

<p>Assignment for Benefit of Creditors—Validity.</p>

This was an application by John Wanamaker, importer of certain merchandise, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of Philadelphia in respect to the dutiable value of such merchandise. The imports consisted of certain dress goods, and the appraiser made “an addition to the entered value of the invoice” by disallowing a commission of 2-J- per cent, claimed as a discount for cash paid on the purchase.

<p>Petition oí W. I. Hough for writ of habeas corpus.</p>

<p>This was a suit in equity by the American Pneumatic Tool Company against Robert Fisher and others for infringement of a patent for a pneumatic drilling tool.</p>

Tills was a bill by the American Coda-Fountain Company against Robert II. Held: in one court of competent jurisdiction, to constituí e a valid defense, should not be expunged from the pleadings in another court;, at the threshold of tho litigation, as being a defense which can in no event become material.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>These were suits in equity by the Bonsack Machine Company against Henry C. Elliott and by the Bonsack Machine Company and the American Tobacco Company against the National Cigarette Company and others, for infringement of four patents for cigarette machines. In the circuit court, certain claims of each patent sued on were sustain ed, .and found to be infringed, and a de.cree was entered for complainants accordingly. 63 Fed. 835. Defendants appeal.</p>

This was a bill by Stephen A. Ginna and Richard A. Donaldson against the; Mersereau Manufacturing Company for alleged infringement of a patent relating to machines for manufacturing tin cans.

This was a bill filed, under Rev. St. § 4918, by the Palmer Pneumatic Tire Company against Henry A. Lozier, to procure an adjudication determining the rights of the parties under certain interfering patents for inventions.

This was a libel iu rem by the Leathern & Smith Towing & Wrecking Company against the steamer Arthur Orr to recover damages resulting from a collision.

This was a petition of intervention filed bj Lane Mitchell in the ease of the Central Trust Company of New York against the East Tennessee, Virginia <fc Georgia Kailway Company, whereby he seeks to recover from Henry Fink, receiver of said company, damages for injuries received while in the employment of said receiver. Verdict for intervener.

This was a petition of intervention filed by William Mitchell in the case of the Central Trust Company of New York against the East Tennessee, Virginia & Georgia Railway Company, whereby he seeks to recover from the receiver of the defendant railway company damages for personal injuries sustained while in the employment of such receiver.

This was a petition of intervention filed by Smith Bennett in the case of the Baltimore Trust & Guaranty Company against the Atlanta Traction Company to recover from the receiver of the latter company damages for personal injuries sustained while in the receiver’s employment.

<p>1. Injunction—Jurisdiction—Restraining Levy of Tax.</p> <p>Injunction will lie to restrain the levy of a tax, where the complainant is a common carrier, and the tax is made a lien on its real estate, though its personal property is first to be resorted to by the tax collector, and the remedy at law, by payment and action to recover bach, is not as efficient as the remedy by injunction.</p> <p>2. Interstate Commerce—Raii/road Companies—License Tax.</p> <p>Act N. C. March 13, 1895, § 42, subd. 6, authorizing a city to levy, on every railroad company doing business or having an office in the city, a license tax, not to exceed 1 per cent, of the gross receipts of its business, is invalid, in the case of a railroad whose business extends to points out of the state, as a regulation of interstate commerce, and therefore a tax levied under it is invalid, though it is limited to business of the railroad done within the state.</p>

<p>1. Admiralty Pleading—Evidence—Variance.</p> <p>Proof, in a collision case, that the cables of a river steamboat which went adrift were not bent to her anchors, held proper to be considered, although the fact was not averred in the libel; it appearing that there was no surprise, and that the attention of counsel had in fact been called to the variance before the hearing.</p> <p>2. Collision—Drifting Steamer- -Negligence.</p> <p>That the cables of a river steamboat moored to a wharf, which broke loose, went adrift, and collided with coal barges, were not bent to her anchors, held no proof of negligence.</p> <p>3. Same—Drifting Steamer and Wharf—Negligent Mooring.</p> <p>Where a wharf and river steamboat moored thereto went adrift, and collided with coal barges, held, that the question of the steamer’s liability was one of negligence in respect to the fastenings, and that such negligence would consist in a failure to adopt all precautions suggested by skill, experience, and careful, prudent, and intelligent forethought.</p> <p>4. Same—Negligence of Master.</p> <p>Where a liver steamboat went adrift on a dark night at a place where there was great danger of striking bridge piers, held, that it was not negligence or bad seamanship for the captain, before going on deck, to first see to extinguishing lamps and stoves, for the purpose of preventing the breaking out of fires in case of collision. '</p>

<p>Appeals from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p>

<p>Appeal from the Circuit Court of the United Stales for the Eastern Division of the Northern District of Ohio.</p> <p>This was an appeal from a decree in a suit in equity by the Ney Manufacturing Company to restrain Valentine Ney from infringing letters patent” No. 287,772, issued on the 30th day of October, 1883, to the complainant, as the assignee of one Jacob Ney, for an improvement in hay-elevator tracks. By his answer the defendant attacked the validity of iho patent, as being for a device which did not involve invention, and which had been anticipated by a number-of patents. Ho averred (hat Jacob Ney was not the original inventor of the device, but that the same had been used long before he discovered it. He further averred that the machine alleged to be an infringement, which lie was manufacturing, was constructed in accordance with two letters patent (Nos. 395,714 and 4(57,387) issued to Jacob Ney and the defendant, and (hat it did not infringe complainant’s patent. Complainant’s device consists of two parallel rails of angle iron, which are spliced so that the joints on one side of the track are oppdsite the solid portions of the opposite rails. The vertical flanges of the angle-iron rails are held at the desired distance apart, and parallel to each other, by spliced blocks and ferrules, and held together by suitable clamping bolts or rivets. The (rack is suspended and held in the proper position in the bam by means of hooks secured to the rafters or ridgepole of the building. The bases of these hooks are T-shaped, and embrace the downward projecting portions of (ho angle irons, the shank of the hook passing up between the angle irons. The traveling wheels of the carriage of the hay elevator run upon the horizontal flanges of the angle irons. The claims alleged to be infringed were as follows: (1) “A track for hay elevators, composed of two parallel pieces, A, each constructed with horizontal and vertical flanges, with the vertical flanges united together, substantially as described.” (3) “In a hay elevator, the combination of the parallel pieces, A, each having horizontal and vertical flanges, the suspending blocks, D, passing between the vertical flanges and having T-shaped ends, on which the parallel pieces are supported, and devices for spacing and holding the said pieces in proper parallel position, substantially as described.” (4) “The combination in a hay elevator of two parallel pieces, A, each having horizontal and vertical flanges, with the suspending hooks, I), passing between the vertical flanges, and having T-shaped lower ends, upon which the parallel pieces are supported, substantially as described.” The defendant’s track is formed of two curved iron pieces, which are fastened together by clamps embracing their vertical portions, and leaving the upper curved portion free to form a tread or way for the trolley wheels. The clamp which secures these pieces together consists of a bar placed between them, with side pieces upon the outside of the vertical portion, of the track iron, and a bolt passing through below the track irons to draw the three pieces together, and thus clamp the track iron. The upper part of the bar is formed into a loop to suspend the track. The two outer clamping pieces have shoulders on them for the edges of the track irons to bear against, and thus gauge their position; and the central bar also has a shoulder which the two outer pieces bear against, so as to take the strain off the bolt. There is one clamp shown, in which the upper or loop portion of the hanger bar is cut off, leaving it a mere filling block. Complainant averred in its bill, and introduced evidence tending to prove facts which it relied upon as estopping defendant from asserting the invalidity of its patent; but, as will be seen from the conclusion reached, the facts, are not here material. The defendant introduced evidence to show that a wooden hay track, constructed in every respect with reference to spacing block hooks with T-shaped ends and broken splice, had been in use in two barns since 1878 and 1881/</p>

This was a bill filed under Rev. St. § 4915, by the Standard Cartridge Company and Charles S. Hisey against the Peters Cartridge Company to establish a right to a patent for an alleged invention relating to cartridge-loading machines.

<p>Tbis was a bill by the Consolidated Brake-Shoe Company and another against the Chicago, Peoria & St. Louis Railway Company and others for alleged infringement of a patent for a shoe for car brakes. Decree for complainants, except as against defendants William S. Hook and C. A. Henderson, as to whom the bill is dismissed.</p>

<p>General Average-Negligent Stranding—Limitation of Liability—Cargo Intf.rests Unaffected—Contribution by Specie Saved.</p> <p>The. steamer City of P. having been negligently stranded, and the steamer thereafter voluntarily flooded to prevent total loss from pounding before relief could be had; and the cargo being thereby damaged, but vessel and cargo ultimately saved, and the whole value of the vessel and the freight pending having been afterwards divided among the damage claimants upon a decree in proceedings to limit the owner’s liability; and thereafter a general average adjustment being made as between the cargo interests, and libels thereafter filed upon the average bonds given on the delivery of the cargo: Held: (1) That'the flooding was a general average act. (2) That neither the decree and distribution in the proceeding to limit liability, nor the exclusion of the vessel from participation in the general average, were any bar to the general average adjustment as between the cargo interests; and that due account having been taken in the average adjustment, of the decree and distribution, so as to equalize’ the cargo interests pro rata, the adjustment should be sustained. (3) That as the general average act was for the benefit of the whole adventure, including the specie on board, the specie must contribute in general average, although it was transshipped a week after the flooding, the transshipment being to another vessel of the same carrier, by which the specie was duly delivered upon the giving of an average bond, and the voyage not being broken up, nor any separation of interests intended by the transshipment.</p>

<p>Removal or Causes—Suits against Receivers ok Federal Courts.</p> <p>A suit against a receiver appointed by a federal court for a cause arising out of liis management of the property committed to his charge is one arising under the laws of the United States, and may be removed from a state to a federal court, without regard to the citizenshij) of the parties or the nature of the controversy.</p>

<p>Assumpsit by the Wheeler Bliss Manufacturing Company against Thomas Pickham. Plaintiff obtained a verdict. Defendant moves for a new trial.</p>

This was a petition by the Hall & Stillson Company, a corporation, for an order authorizing the sheriff of San Bernardino county, state of California, to levy an execution upon the property of the Vanderbilt Mining & Milling Company, said prpperty being in the hands of a receiver appointed by the United States circuit court for the Southern district of California.

This was a motion by Charles Moran and others, complainants in an action against J. 0. Ilagerman, administrator, and others, wherein an affirmative judgment was given for defendants, to quash executions issued on that judgment. Motion granted.

<p>Bill by the Louisville, New Albany & Chicago Railroad Company against the Ohio Valley Improvement & Contract Company and others for an injunction, and to cancel a guaranty on certain bonds.</p>

This was a bill by the First National Bank of Montpelier against the Bioux City Terminal Railroad & Warehouse Company, wherein the Trust Company of North America, as intervener, filed a bill to foreclose a mortgage securing bonds of tbe terminal company. Tbe cause was submitted on the pleadings and proofs.

This was a creditors’ bill filed by complainants, Von Auw and others, against the Chicago Toy & Fancy Goods Company and others. Defendants demur to the bill for want of jurisdiction and on the ground of multifariousness.

<p>Cross appeals from the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee.</p>

This was an action brought in a. court of the state of Iowa, by tin: First National Bank of Bioux City against Frank H. Peavoy to enforce an alleged liability for unpaid portions of capital stock of the Bioux City - Street-Railway Company. The case was removed to this court by the defendant, and lik'd on the law docket.

<p>This was an action at law by Frederick N. Pauly, receiver of tbe California National Bank of San Diego, against J. E. O’Brien on a promissory note made by tbe latter to tbe bank.</p>

<p>Municipal Bonds—Searcy County v. Thompson, 13 O. C. A. 849, 66 Fed. 92, Followed.</p>

<p>This was a bill for the foreclosure of a mortgage brought by the Northwestern Mutual Life Insurance Company against Thomas B. Quinn, Mary Quinn, Herman N. Williams, Elizabeth Williams, and John Dennery, Heard on the petition of Charles L. Fitch, clerk of the court, for an allowance of the statutory percentage on the amount bid at the foreclosure sale.</p>

<p>This was an application by Joim Wanamaker and others, importers of certain merchandise, for a review of the decision of the board of general appraisers affirming the decision of the collector of the port of Philadelphia as to the rate of duty upon the said merchandise.</p> <p>Among the imports in question were certain “men’s leather gloves, prick-seam and embroidered.” These were assessed by the appraiser at a cumulative duty of $3.50 and $2 per dozen and 50 per cent, ad valorem, under the tariff act of October 1, 1890. The importer claimed by his protest that they were dutiable only at $1 per dozen and 50 per cent, ad valorem. The appraiser’s decision was affirmed by the collector and the board of United States general appraisers. Part of the merchandise consisted of “wool knit hats,” which were invoiced as “red' fez caps.” These were appraised as wearing apparel by the appraiser, and his decision was affirmed by the collector and the board of general appraisers.</p>

This was an application by Jlenrv Zimmern & Co. for a review of the decision of the board of United States general appraisers affirming the decision of the collector for the port of New York in respect to the classification for duly of certain merchandise imported by them. The merchandise in question consisted of vest chains, which are silk guards or chains used for watches and eyeglasses.

<p>Patents for Inventions—Novelty—Angle Splice for Railway Joint.</p> <p>Letters patent No. 228,347, issued June 1, 1880, to James Hawks, for “angle' splice for railway joint,” consisting of “a splice made angular in cross section, and having its base flange constructed with a bend whereby the base flange of the splice is adapted to fit upon the bases of two abutting rails of unequal height,” are not void on their face, for want of patentable invention and novelty, although they inferentially admit that angle splices are not new for that purpose, and only claim them when bent as described, and although they state that “these joints have usually been formed by fish plates, the ends of which were arranged at different heights, corresponding with the position of the rails.”</p>

<p>This was a libel by James McBrier, John Thompson, and E. 1). Carter, owners of the steamboat Nyanza, to enforce an alleged lien for freight and demurrage. The Pioneer Fuel Company, consignee of the cargo, has interposed certain exceptions to the libel.</p>

<p>This action was brought by the Switzerland Marine insurance Company to recover losses sustained by its assured through jettison to and damage of cargo occasioned by a leak in the steamer Flamborough.</p> <p>The Flamborough had taken cargo at New York for transportation to West Indian ports and when two days out encountered bad weather, and a few hours later began to leak. Thereupon some goods were jettisoned, but the leak continuing the steamer returned to New York. She was then docked for examination and it was found that 17 of her plates were worn out and that the leak had occurred through one of the plates wasting. The steamer was 27 years old and had been purchased from her former owners five months previous to the voyage. Her new owners were not familiar with shipping and at the time of purchase caused' the steamer to be examined by an inspector on their behalf. After purchasing, they placed her under the management of an experienced agent in New York and did not themselves take part in such management. The steamer was not docked at the time of purchase, nor at any time subsequent thereto before the voyage upon which the damage arose. The condition of the plates was such that an examination upon a dock, or a careful examination while the vessel was afloat would have disclosed their weakness.</p>

This was a libel by Rosario Baceus against the steamship Manlianset (Francis Duck, claimant), impleaded with Charles Hogan and others, respondents. The libel was for injuries sustained by a stevedore’s laborer, occasioned by the mate of the steamship falling down on him from an orlop deck beam. There was no flooring on the orlop beams, which were about 10 inches wide.

<p>This was a libel by Joseph Ullmann- and others against the steamship Flintshire to recover damage to a consignment of dog-skins on a voyage from China to New York.</p>

<p>This was a libel by the Bpreckels Sugar-Refining Company against the British steamship Glenmavis to recover for damage to cargo.</p>

<p>This is a libel by the Royal West India Company against the Pacific Mail steamer City of Para to recover a reward for salvage service. Decree for libelant.</p> <p>This libel is brought to recover a reward for sdlvago service rendered by the libelant’s Dutch steel steamship Prins Willem IV., Herman Sluiter, master, lo the Pacific Mail steamship City of Para, .Tames B. Lockwood, master, In March, 1895. On Friday morning, the 22d of that month, the latter steamer was seen to he in a helpless condition, flying a signal of distress, in the Atlantic Ocean, in 74° 21' W. longitude, and 32° 04' N. latitude, which is a point some 400 miles due east of the poit of Savannah, Ga. The Prins Willem was running on schedule time, was bound to and due to arrive at the port of New York on the 23d, and to leave there for Amsterdam on the 30th of March. She was a regular passenger steamer, and had 24 passengers on hoard at the lime. The values which she carried were as follows: Of the ship, $100,000; of cargo, $224,000; and of freight money (apportioning $1,000 to the West indies for Hampton Roads), say $1,250; these values aggregating $325,250. Her gross tonnage was 1,724 tons; her length, 281 feet; beam, 3(5; and depth in water, 24% feet. Her full rate of speed is 14 knots an hour. The City of Para was bound south. The two steamers were far out to the oast of the course of vessels coming tip from Cuba and ports of the mainland for New York and to the north of Hampton Roads. The Para’s gross tonnage was 3,582; her length, 345 feet; beam, 38%; and depth in water, 29 feet. She was running as a mail and passenger steamer on scheduled time, and had on hoard about 40 passengers. Her value was $197,000, her cargo was worth $11(5,000, and her freight money $22,000; the aggregate value of the property saved being $335,000. The Willem promptly bore down towards the Para, upon observing her condition and seeing her signal. She was found to ha ve lost the blades of her propeller, which was entirely useless. Her sailing apparatus, 1 hough good of its kind, was such that she could have made hut little headway by using them, though they were useful to her for steadying purposes. She was deeply laden with a full cargo of merchandise and a large supply of coal. Before the morning of the 22d there had been gales of wind and high seas. On the. morning of Friday, when the two vessels first saw each other, Ihe wind had blown a gale, and the sea had run high. On this Friday morning there was still a large swell of the sea, which continued, though abating gradually, during the first two days and nights of the towing. There were also cross swells of sea. This condition of the water made the towing of so heavy and massive a ship as the Para an arduous labor, attended constantly by more or less risk of accident. As soon as practicable after the Willem had borne down to the Para, on Friday morning, the 22d of March, hawsers wore rigged and made fast to the two vessels, and the towing commenced. The towing line consisted first of the Para’s anchor chain, 30 fathoms long; next of a new Manilla hawser, belonging to the Para, 90 feet long; and last of a new wire hawser, belonging to the Willem, 100 to 120 feet long. The sea was not so rough as to prevent the use of a yawl boat back and forth between the two ships in rigging hawsers. There was necessarily a groat strain upon the hawser line during the whole time of this towing, in consequence of the great weight of the' Para and roughness of the sea. On two occasions the hawser line broke, and delay was incurred in refitting it. The Para’s master requested at first to be towed back to New York, but it was soon agreed that she should be taken into Hampton Roads. The towing was off the dangerous coast of the Carolinas, passing Capes Lookout, Pear, and Hatteras, and near to and abreast of Currituck Sound, 16 miles out. The tawing was done with care and skill on the part of the Willem, her master and engineer. Most of the labor connected with the hawsers was done by the crew of the Para, in consequence of their being more numerous, and less occupied otherwise than the crew of the Willem, and were directly and deeply interested in the success of the salving operations. The towing lasted until the afternoon of Monday, the 25th of March, when the two ships, having passed safely into Hampton Roads, came to anchor there at about 5 o’clock p. m. No other steamer had been met or sighted during the trip. The engines of the Willem were kept at their fullest speed throughout the towing service. The distance traversed was 825 miles. The Willem lost 3% days by -deviating from her course, but she was able, nevertheless, to leave New York on her outward voyage on the 30th of March, her scheduled time. At the conclusion of the towing, by some inadvertence, the wire hawser slipped from the Willem, but was caught and secured by the Para. It was returned to the owners of the Willem in New York, and it is conceded at the trial that it was injured by the service it had performed to the amount of $240. The actual expenses and outlay of the Willem in and about the towing amounted to the sum of $1,314, and are not contested.</p>

Quo warranto by tbe slate of Illinois on tbe relation of Reuben Wilkinson against Orrin F. Place to determine defendant’s title to the office of president of the Crowned King Mining Company, a corporation organized and existing under and by virtue of tbe lav/s of the state of Illinois.

This was a bill by Alfred W. La Chapelle against Capt. John W. Bubb, United States army, as Indian agent of the Colville Indian Agency, in the state of Washington, and certain Indian defendants, for an injunction to restrain said Indian agent from forcibly ousting the complainant from certain lands, which be claims as a settler under the homestead laws.

This was a foreclosure bill brought, by the Pennsylvania Company for Insurance on Lives and Granting Annuities against the Philadelphia & Heading Railroad Company and others. Defendants demur to the bill.

<p>Foreclosure or Mortgages—Appointment or Receivers—Rents and Profits.</p> <p>Under a statute declaring that a mortgage of real property shall not be deemed a conveyance so as to enable the mortgagee to recover possession without foreclosure and sale (Gen. Laws Or. 1845-64, p. 228, § 323), the mortgagee has no right to take the rents, profits, and crops before he has secured possession by actual foreclosure and sale according to law; and it is not in the power of the parties, even by express stipulation, to give him such right. Therefore, a provision in a mortgage of farm lands that, in case foreclosure proceedings are instituted, a receiver may be appointed to take the rents, profits, and crops, and apply them on the debt, in no wise enlarges the mortgagee’s rights. In a proper case, the court will appoint a receiver without any such stipulation; and, in any other case, it will not appoint one, whatever the parties may have agreed.</p>

<p>This was a suit by Herman Shainwald, as assignee in bankruptcy of the firm of Schoenfeld, Cohen & Co., and of Louis S. Schoenfeld, Simon Cohen, and Isaac Newman, individually, against Harris Lewis, to revive and continue in force two decrees rendered in favor of the same plaintiff against the same defendant on November 5, 1880, and on June 14, 1890, respectively. The defendant demurred to the bill, and excepted to certain parts of it.</p>

This was an action by William J. Brodrick, as receiver of the First National Rank of Ban Bernardino, against Joseph Brown. The case was heard by tin* court without a jury.

<p>This was a suit in ejectment brought by Barber and others against the Pittsburgh, Ft. Wayne & Chicago Railway Company and others to recover possession of certain lots in the city of Pittsburgh, Pa.</p>

This was an action by A. Howard Ritter, executor of the estate of William M. Runk, deceased, to recover upon policies of life insurance. The deceased carried policies -aggregating §75,000, and the defense to the action was suicide.

<p>Contracts —Illegality—Collusive Bidding.</p> <p>A secret contract, between persons proposing- to bid upon the construetion of a public work, by which Ihcir bids are to be put in, apparently in competilion, but really in concert., with the intention of securing as high a price as possible, and dividing Hie profits, is illegal, and contrary to public policy, and will not.be enforced, though one of the parties to it hits secured "the contract for the public work, and has executed the same, ami received the profits.</p>

<p>Landlord and Tenant—Defective Premises—Injury to Tenant’s Child.</p> <p>A landlord letting- a Louse with a warranty of the safety and sufficiency of the ceiling is liable (not'on the warranty itself, but on the ground of negligence) Cor an injury to the tenant’s infant child, resulting from the fall of the ceiling upon it. ’</p>

<p>Guaranty—Notification of Acceptance—Interpretation of Letter.</p> <p>N., an Iowa merchant, having been refused credit by complainants in Chicago, procured from defendant a letter addressed to them, and offering to guaranty payment of such purchases as N. might make for his fall and winter trade. On the strength of this letter, plaintiffs sold N. goods, and, on the same day, wrote to defendant, acknowledging the receipt of his letter “guarantying whatever N. may purchase of us for his fall and winter stock,” and saying, “His purchases up to this time amount to $3,390.50, which we are getting ready for shipment.” Held that, .in view of the situation of the parties, this letter was a valid notice of acceptance of the offer of guaranty, so as to make the guarantor liable for the amount of the purchases.</p>

<p>1. Railroad Companies—Liability for Negligence—Injuries to Persons on Track.</p> <p>The only duty which a railroad company owes to those who, without its knowledge or consent, enter upon its track, not at a crossing or other public place, is not wantonly and unnecessarily to inflict injury upon them after its employes have discovered them. It owes them no duty to keep a lookout for them before they are discovered.</p> <p>2. Same —-License to Use Track.</p> <p>The continued use by strangers of a railroad track for their own purposes, without any express license or invitation, and without any notice or knowledge thereof by the railroad company, can raise no implied license in respect to such use, and would impose upon the company no duty of active vigilance to the persons engaged therein.</p> <p>o. Negligence—Unforeseen Injuries.</p> <p>Injuries which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence, or which are not the natural consequences thereof, and would not have resulted from it but for the imposition of a new and independent cause, are not actionable.</p> <p>4 Same—Contributory Negligence.</p> <p>One who is injured in a dangerous place, where he has voluntarily placed himself with knowledge that he would inevitably be injured there unless he speedily removed himself, necessarily contributes to an injury which results before he removes himself.</p> <p>5. Railroad Companies—Injuries to Persons on Track.</p> <p>A railroad spur track ran between two sheds owned by a lumber company, and when the track was not in use the lumber company’s employes were accustomed, without the consent or knowledge of the railroad company, to transfer lumber from one shed to the other by means of a movable tramway which they placed, across the track from one platform to the other. When an engine came in upon this track the employés of the lumber company would jump quickly to the ground, and push the tramway back under one of the platforms. Deceased was engaged with others in thus transferring lumber, when a switch engine came in from the main track, leaving the switch open. The tramway had been placed across the track, in- an opening in a line of box ears standing thereon. On seeing the switch- engine, deceased and three others started to remove the tramway, when' a freight train, moving rapidly upon the main track, ran into the switch, shoved the cars along, and crushed the workmen between them. The latter had left no one in a position to see the train or give notice of the danger, and they were not seen by those upon the train. Held, that ix was error to charge that under these circumstances the want of notice, either of deceased’s position, or of this accustomed use of the track, was no defense to the action, and that there was no evidence of contributory negligence.</p> <p>6. Conduct op Trial—Unwarrantable Arguments and Comments.</p> <p>While considerable latitude may be allowed to counsel in their criticism of the testimony, they ought not to indulge in extended discussion of questions not presented by the evidence, for the purpose of exciting passion and prejudice on the part of the jury, or in gross misstatements of the evidence, or in clearly erroneous declarations of the law, when it has been announced by the court.</p>

<p>Railroad Companies—Liability for Negligence—Injuries to Persons on Track.</p>

<p>Railroad Companies—Liability por Negligence—Injuries to Persons on Track.</p>

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

<p>Railroad Companies—Liability for Negligence—Injuries to Persons on Track.</p>

This was an action brought by the receiver of. the Linn County National Bank, in the name of the bank, against John A. Crawford upon a note for the sum of $10,000. Heard on a motion by defendant for a new trial.

<p>1. Constitution at, Law — Admission on Status — Concurrent Jurisdiction over Kivek.</p> <p>The assumption by the state of Oregon, in its constitution, of concurrent jurisdiction on the Columbia river, and tlie provision, in the act of congress admitting the state into the .Union, expressly confirming such • jurisdiction, are effective to establish it between Oregon and Washington, notwithstanding the failure of Washington, upon becoming a state, to assent Thereto, and the omission of her enabling aid to provide for it. The provision by congress for concurrent jurisdiction in such case, the common boundary of the two states being the middle channel of the river, is not a limitation upon tlie sovereignty of tlie states, nor the exercise of jurisdiction within them, nor an impairment of the equality of footing with the other siates upon which they are entitled ,to admission into the Union.</p> <p>2. Same—“Concurrent” Jurisdiction Defined.</p> <p>The word “concurrent,” when applied to the jurisdiction of Oregon to enact penal laws for tlie Columbia river, can only mean the power to enact such criminal statutes as are agreed to or acquiesced in by the state of Washington, or as are already in force within its jurisdiction.</p> <p>3. Same—Fishing Bights.</p> <p>The slates of Oregon and Washington own the bed of the Columbia river upon tlieir respective sides to tlie middle channel, and the citizens of each within such boundary have a common right of fishing, so long as the navigation of the river is not obstructed. This right is not a mere privilege or immunity of citizenship, but a right of citizenship and property combined, which each state may make exclusive in its citizens, and which is not subject to control or regulation by tlie other, unless there is mutual agreement to that end.</p>

This was an action of trespass by Samuel O. Clark against the Canadian Pacific Railway Company for personal injuries. After a verdict for the plaintiff, the defendant moved for a new trial.

<p>Appeals from tbe Circuit Court of tbe United States for tbe Eastern Division of tbe Southern District of Obio.</p> <p>These suits were brought to enjoin the assessment of taxes against the Adams Express Company for the years 1893 and 1894, and the American Express Company and the United States Express Company for the year 1894. The defendants are Bbenezer W. Poe, auditor of the state of Ohio, John K. Richards, attorney general of the state of Ohio, and William T. Cope, treasurer of the state of Ohio, and compose a board of tax appraisers for the assessment of telegraph, telephone, and exxn-ess conxpanies, under an act of the Ohio legislature passed April 27, 1893, and known as the “Nichols Law.” To the several bills demurrers were filed,, which, on full argument, were finally sustained, and the hills dismissed. The complainants have severally perfected appeals and assigned errors. The ground upon which the suits all proceed is, in substance, that the assessments complained of, and the scheme of laxaüon embodied in the Nichols law, under which the assessments were made, are void as in contravention—First, of the constitution of Ohio, which provides that all property shall be taxed according to its true value in money by a, uniform rule, and that the property of corporations shall be taxed “the same as the property of individuals” (Const. Ohio, art. 12, § 2, and art. 13, § 4); second, “of the constitution of the United States, because the effect of the rule of valuation prescribed by the sinfute and adopted in (hose particular a osossments is, not 1o coniine the tax to the property of the companies within Hie state of Ohio, but to tax something else, which is not within the state of Ohio, and therefore to take, the property of ¡he companies without duo jirocess of law, and that the scheme, as a sjiecial one applied to these special agencies of interstate commerce, imposes an illegal burden upon that commerce”; third, complainants also- contend that, if the Ohio statute be valid under both the constitution of Ohio and of the United ¡hates, the assessments are nevertheless void, because the assessments made were arbitrary and illegal, in that the assessors did not follow the statute or pursue any definite mode of valuation. Upon a first hearing before Circuit Judge Taft, the demurrers of the defendants were overruled, and defendants required' to answer. The ground upon which Judge Taft proceeded was—First, jurisdiction in equity was predicated upon the ground that a multiplicity; of suits would result unless the defendants should be restrained from certifying their assessments to the auditors of 87 comities, within each of which the defendants had property; second, that the Nichols law, under which the assessments had been made, was void as in conflict with the constitution of the state of Ohio. The opinion of the court upon these questions is reported in 61 I?ed. 449. Before answers were filed, a suit involving the constitutionality of this legislation was decided by the supreme court of Ohio, and the validity of the law under the Ohio constitution sustained. State v. Jones, 37 N. Ifl. 945. Upon the filing of this opinion by the Ohio court, Judge Taft granted a rehearing, and sustained the demurrers of defendants, upon the ground that the decision of the supreme court of Ohio as to the construction of the Nichols law and its validity under the constitution of Ohio was conclusive upon the courts of the United States. A .very convincing opinion upon this aspect of the question was filed, and is reported in 64 ITcd. 9. A further argument was heard before Judge Taft upon the question as to whether the state board of assessors had enforced the Nichols law according to the construction placed thereon by the supreme court of Ohio. Upon the latter hearing it was agreed that the bills of the several complainants should be treated as amended by 1he incorporation therein of the facts which had been made to appear by the two affidavits of the defendant Poe as to the manner in which the amount of the several assessments had been reached. The learned circuit judge, upon the bills as thus amended, was of opinion that the board of assessors had kept “well within the law” as construed by the Ohio court. He therefore sustained the demurrers and dismissed the several bills.</p>

<p>Constitutional Law—Taxation or Telegraph Companies—Saneord t. Poe, 69 Fed. 546, Followed.</p>

<p>1. Practice—Time for Presenting Bill of Exceptions'—Rules of Court.</p> <p>Rules of court prescribing the time within which bills of exceptions must be presented or settled are rules of procedure, which may be dispensed with, in the discretion of the trial judge, provided the exceptions themselves are seasonably taken, and the bill of exceptions is presented at the same term at which the judgment is rendered; and the pendency of a motion for a new trial is good ground for the exercise of such discretion in permitting a bill of exceptions to be presented after the time limited by rule. t</p> <p>2. Negligence—Sufficiency of Evidence.</p> <p>The administratrix of one J., a locomotive engineer in the employ of the S. Ry. Co., sued that company for damages for the death of J.; alleging that it knowingly permitted defects to exist in the engine operated by J., by which he was thrown from the engine and mortally injured. Tt appeared upon the trial that J., at the time of his death, was running an engine with which he had been long familiar, and which was old and nearly worn out, and, in consequence, a “hard-miming” engine, liable to jar and sway; that, while running at a speed of about 18 miles an hour, one of the injector valves stuck, and J. wont out on the running hoard to close it; that such a difficulty with the valve was liable to occur on either a new or old engine, and that the course taken by J. to remedy it was the usual and proper one; that J. did close the valve, and started to return to the cab, and, while returning, fell from.’ the engine; that no special jar or jolt was noticed by either of three other men on the engine, sufficient to have thrown J. off if he was holding by the hand rail. Held, that the evidence was insufficient to establish negligence in the railway company.</p> <p>8. Same—Risks oe Employment.</p> <p>Held further, that the risk attendant upon going out upon the running board to remedy the sticking of the valve which was liable to occur was one of the risks of his employment assumed by J. '</p>

This was a libel by Climace Calderon against the Atlas Steamship Company, Limited, to recover damages for nondelivery of cargo. The district court rendered a decree in favor of libelant for $2,900, with interest and costs. 64 Fed. 874. Libelant appeals.

<p>Res Judicata—Action to Recover Real Property—Subsequently Acquired Title.</p> <p>In an action to recover real property, brought under the Code of North Dakota, which has abolished the fictions of the old action of ejectment, the judgment is a bar to a subsequent action only when, the titles and defenses are the same, and is therefore not a bar where the defense is founded on a title acquired .subsequent to the judgment, and which was not and could not have been set up in the earlier action.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p>

This was an indictment against John Wilson, James Lotan, and Seid Back for a violation of Rev. St. § 5440. After a verdict of guilty, the defendants moved for a new trial.

<p>Criminal Law—Indictment—Rev. St. § 5470.</p> <p>An indictment wliicli charges that the defendant did aid in buying, receiving, and selling a draft, “knowing that said draft had been stolen and embezzled,” is insufficient, under Rev. St. § 5470, whicfi imposes a penalty for aiding in buying or receiving articles of value stolen or embezzled from the m<\il, since it fails to allege any 'offense; the acts of stealing and embezzling being distinct, and inconsistent with each other.</p>

This was a bill in equity by James D. Leatherbee and others against M. W. Brown for alleged infringement of a patent. Complainants moved to strike from the files a plea filed by the defendant.

This was a bill by the Heaton Peninsular Button-Fastener Company against Schloehtmeyer, for infringement of two patents for improvements in button-fastening staples.

<p>This was a suit in equity by William J. Matheson against John Campbell for infringement of a patent for a color compound produced from coal-tar products.</p>

<p>This was a suit in equity by the Imperial Chemical Manufacturing-Company against Joachim Btein and others for injunction and accounting for alleged infringement of a patent relating to tlie dyeing of hair.</p>

<p>This was a bill by Herman Strater against George 0. Keyes and others for infringement of two patents relating to drains for draft apparatus.</p>

<p>This was a bill by the Osgood Dredge Company against the Metropolitan Dredging Company for infringement of a patent.</p>

<p>Patents—Invention—Valve-Reseating Tool.</p> <p>The Wright patent, No. 400,989, for improvements in valve-reseating tools, in which the only change from previous devices was in substituting for a disk-shaped file, with a continuous cut ling surface, a file having a broken or interrupted surface, which enables it to clear itself of the filings, so as to prevent clogging or “chattering,” is void for want of invention.</p>

<p>1. Patehts—Wt vra-Ron Mills.</p> <p>The Roberts patent, No. 392,365, for a mill for rolling wire rods, held void as to claims 1, 2, and 3 for want of novelty and invention; but held valid and infringed as to claim 4, which is for a combination of the rolls with an inclined mill floor and guides arranged therein for carrying the loop of the wire by tlie combined force of gravity and the propelling power of the rolls; and held, farther, that claim 6, for tlie combination of a plate fender with the rolls, must be restricted to the specific form of eons traction shown, and, being so restricted, was not infringed by defendants.</p> <p>2. Sank -Issuance of Patent—Fa use Oath—Burden of Proof.</p> <p>Where it is sought to invalidate a patent on the ground of the falsity of the inventor’s oath, the burden is upon the party attacking it to show the actual previous existence of the invention sought to be patented, and ¡hat the applicant knew of it at the time.</p>

<p>Suit by Alphonzo B. Bowers against the San Francisco Bridge Company.</p>

This was a suit in equity by the Edison Electric Light Company and Edison General Electric Company against the Waring Electric Company and others for infringement of the so-called “incandescent lamí)” or “filament” patent, No. 228,898, issued January 27, 1880, to Thomas A. Edison. The circuit court granted a motion for a preliminary injunction. See 59 Fed. 358, where the opinion by SHIP-MAN, Circuit Judge, is reported in full.

This was a libel in personam by Charles Hermann against the Port Blakely Mill Company, a corporation, to recover damages for personal injuries alleged to have been sustained while employed by defendant on the American vessel Kate Davenport. Defendant excepts to the libel.

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

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

<p>Appeal from 1lie Circuit Court of tlie United States Cor tlie Southern District of New York.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Northern Division of the District of Washington.</p>

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

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

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

<p>This was a bill by the Home & Foreign Investment & Agency Company, Limited, against Lavender R. Ray, to foreclose a mortgage securing a bond with interest coupons.</p>

In tlie matter of the exceptions of Charles W. Simmons and others to the report of the ¡special master. Reference was made to II. Held: “Upon the sale of a railroad on foreclosure, it is error to direct payment of claims for supplies furnished prior to the receivership out of the purchase money, where no provision was made for such payment when the receiver was appointed.” This decision is in conflict with several others on the same subject in the federal…

This was a bill by the 'Western Union Telegraph Company and others against the American Bell Telephone Company for discovery and accounting in respect to certain rentals upon patented devices, alleged to be due under a contract. The case was heard in the circuit court upon coinplainanis’ motion to dismiss the cause without prejudice, which was granted. 50 Fed. 662. Defendant appeals.

<p>Eminent Domain—Laws N. Y. 1875, on. 181.</p> <p>The New York statute (Laws 1875, e. 181) permitting villages to construct systems of waterworks provides (section 22) tkat whenever “any - corporation shall have been organized * * for the purpose of supplying the inhabitants of any village with water and it shall become or. be deemed necessary * * * that the rights * * * and properties of such corporation shall be required for any of the purposes of this act, the commissioners * * * shall * * * make * * * a thorough examination of the * * * properties owned or held by such corporations, * * * and if such commissioners shall determine that said * * * properties are necessary * * * they shall have the right” to acquire the same by condemnation. Held, that such statute does not make it mandatory upon the water commissioners of a village to acquire, either by purchase or condemnation, the rights or property of a private corporation organized to supply the village with water, and 'which has constructed a system of pipes, and acquired from the village authorities a franchise to lay and maintain the same, without any exclusive right.</p>

The intervener, E. C. Wyche, filed his intervention in the above-stated equity cause, claiming damages for personal injuries received ■by him while in the service of the receivers. The intervention was referred to William E. Ellis, Esq., as special master, and his report is as follows: By virtue of an order of reference from the circuit court of the United.

This was a suit by William T. Walters and others against the Western & Atlantic Railroad Company. J. S. McLendon filed an intervening petition, asking the allowance of a claim against the assets of the corporation, which petition was referred to a special master.

<p>Mortgages—-Interest Coupons—Presentation bob Payment.</p> <p>Interest coupons attached to a note were by their terms payable at a bank in Richmond, Ind. The debtor resided in Atlanta. Ga.. and had no funds in the Indiana bank. A coupon, without being first, sent to the Indiana bank, was left with a bank in Atlanta for collection, and due notice was promptly given to the debtor, who had paid a previous coupon in Atlanta without objection. Held, that the failure to present the coupon for payment at the place specified was no defense to a foreclosure of the mortgage for the interest.</p>

This was a petition of intervention filed by G. H. Miller & Son against the receivers of the Savannah & Western Railroad Company to recover damages alleged to have resulted from delay in delivering a shipment of fruit trees.

, Bill in equity to have certain personal property of Harris Lewis declared and adjudged to be trust funds in the hands of said Lewis, as trustee for the benefit of the complainant, as assignee of the bankrupt firm of Schoenfeld, Cohen & Co., and of the creditors thereof; such trust funds to be applied in payment and satisfaction of the decree of this court, rendered on November 5, 1880, in the case of Shainwald v. Lewis, No. 221 in equity (6 Fed. 753), as the same was…

<p>1. Practice—Substituted Service.</p> <p>A party to a suit which, as to him, is an original proceeding, cannot b« brought before the court, in a jurisdiction foreign to his residence, by substituted service of process upon a law linn reí allied by him to represent him in case it should be necessary for him to appear voluntarily, but who are not his general agents or representatives.</p> <p>Su Practice.</p> <p>Substituted service cannot be made upon a law Arm retained to represent a nonresident party, but who are not his general agents or representatives.</p>

This was a bill in equity by Herman Shainwald, as assignee in bankruptcy of the firm of Sehoenfeld, Cohen & Co., and of the individual members thereof, against D. S. Davids, I. J. Lewis, and various other defendants, including the Home Insurance Company, a corporation organized under the laws of the state of New York. See 69 Fed. 687, 701. The Home Insurance Company moves to dismiss the bill, as against it, for want of jurisdiction.

<p>Tbis was a petition filed by Julius L. Brown, in tbe case of W. T. Walters and others against the Western & Atlantic Railroad Company, to recover his compensation as counsel for the receivers of the defendant company. Heard on exceptions by the petitioner to the report of a special master.</p>

<p>This was a petition for a writ of habeas corpus.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a Mil by the Westinghouse Air-Brake Company against the New' York Air-Brake Company and others for infringement of letters patent Nos. 360,070 and 376,837, granted to George Westinghouse, Jr., March 29,1887, and January 24, 1888, respectively, for improvements in air-brake mechanism. The circuit court granted a preliminary injunction to restrain infringement of claims 1, 2, and 4 of the former patent, and claim I of the latter. The opinion of Judge Lacombe in the court below is reported in 65 Fed. 99. Defendant appealed from the interlocutory order so granted.</p>

This was a bill by Daniel M. Kennedy against the Solar Refining Company and Standard Oil Company for alleged infringement of a patent for the process of desulphurizing and purifying petroleum oils.

This was a bill by tbe Obio Rake Company against the Dayton Farm Implement Company for alleged infringement of two patents relating to disk harrows.

This was a suit by Conrad Muller against the Lodge & Davis Machine Tool Company for infringement of a patent for a tool holder , for lathes.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>-This was a suit in equity by the California Fig Syrup Company against Kate Gardner Putnam and others to restrain the infringement of a trade-mark. The circuit court dismissed the bill for want of equity (G6 Fed. 750), and the complainant appeals.</p>

<p>Towage—Loss op Coal Baiige—Evidence.</p>

<p>1. Maritime Liens—Seamen’s Wages—Vessel in Hands of Receiver.</p> <p>A seaman may acquire a lien for wages by reason of services rendered while employed by a receiver who has charge of the vessel, and is employing it in navigation under the orders of the court.</p> <p>8. Same—Lien in Favor op Master—State Statutes.</p> <p>Where the state statute gives a lien for wages without excepting masters from its benefits, the federal courts will uphold the lien in the case of a master employed upon a vessel engaged in plying between points on a river at which are stationed agents clothed with authority to conduct the vessel’s business, thus leaving the master merely the ordinary duties of navigation; for in such case the reason for the admiralty rule giving the master no lien does not exist.</p> <p>S. Bake—State Statutes—Limitations.</p> <p>Where a' state statute creates a lien which the federal courts will enforce, but provides that the same shall be barred within one year, this limitation, being a part of the remedy, is ineffectual and void, since the state courts can have no jurisdiction in such cases.</p> <p>4. Same—Assignability.</p> <p>A lien for seamen’s wages will be enforced in the hands of an assignee thereof when there is no reason to question the fairness of the assignment. The New Idea, 60 Fed. 294, followed.</p>

This was a libel in'personam by Louis Bolden, a citizen of the United States, against A. Jensen and I. M. McLean, the master1 and owner of the Chilean ship Atacama, to recover damages for personal injury and cruelty inflicted on the libelant while serving on board said vessel as a seaman. Pursuant to admiralty rule 2, promulgated by the supreme court, a simple warrant of arrest was issued, and the defendants were taken into custody, and admitted to bail.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by William Bun-ill and others, owners of the bark Kate Burrill, against William H. Crossman and others, to recover demurrage under a charter* party. Libelants appeal.</p>

<p>Federar Courts—Jobisdigtion-—Divkuse Citizenship-Corporation or Several States.</p> <p>A corporation formed by the consolidation of corporations of three different states, pursuant to (lie laws thereof, is, within each of such states, a corporation of that state; and the federal courts there held have no jurisdiction of a suit against it by a citizen of the state, on the ground of diverse citizenship.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p>

<p>Equity Practice—Reopening Cash kkfore Master.</p> <p>After a master in chancery had prepared a draft of his report, and submitted it to the parties, to afford them an opportunity to except before . him prior to its filing, one of the parties petitioned the master to reopen the case, and give him an opportunity to put in certain material testimony which he had inadvertently omitted to offer, which petition was granted. Held, that the action of the master in reopening the case would not be disturbed by the court, it not appearing that he had abused his discretion.</p>

<p>1. Insurance—Representations op Agent.</p> <p>When a policy of insurance describes the class of risks thereby insured, and the assured has a fair opportunity to read the instrument, the company issuing the' same will not be bound by representations made by its agent, in good faith and without any intent to deceive or to defraud, that the policy covers certain risks that are not in fact within its provisions. In construing the provisions of a written agreement, and in determining its legal effect, the parties thereto act at arm’s length, if the agreement is couched in plain language, and no fraud or deceit is practiced.</p> <p>2. Reformation of Contract—Mistake.</p> <p>The T. Ins. Co. issued an accident policy to one H., by. the terms of which death resulting from intentional injuries inflicted by another person was excepted from its benefits. After H. had been killed by an assassin, the beneficiary in the policy brought suit to have it reformed by striking out the exception. Upon the trial, the subagent of the insurance company who solicited the insurance testified that, when he issued the policy, he knew that H. was engaged in a dangerous business, and was likely to he assassinated, and wanted the policy to protect liis family in that event, and that he told II. the policy issued to him would cover the case of his being assassinated. It appeared, however, from the cross-examination of the same witness, that he did not intend to make, on behalf of the company, any different contract from that contained in its usual form of policy, and that his representations to H. were due to ignorance of the terms of the policy or misunderstanding of their effect. Held, that the evidence was insufficient to justify the reformation of the contract.</p>

<p>1. Practice—Findings of Fact— Opinion of Court.</p> <p>A statement of the grounds of decision in an opinion of the court upon deciding a ease submitted without the intervention of a jury is not equivalent to a special finding of fact.</p> <p>3. Evidence—Several Issues.</p> <p>Where there are several issues of fact in a ease, a party cannot be xirecluded from giving evidence material upon any one of them because the decision upon another may be such as to xireclude him from relying upon the facts which such evidence tends to prove.</p> <p>3. Same—Trial without Jury—Harmless Error.</p> <p>Where a ease has been tried by the court without a jury, it is immaterial to consider whether there was error in the admission of evidence bearing solely upon a point which is shown by the oxfinion of the court not to have entered into the decision of the case.</p> <p>4. Municipal Corporations—Refunding Bonds.</p> <p>The power conferred on cities of the first, second, and third class to refund their indebtedness, by. the act of March 8, 1S79 (Lavrs Kan. 1879, c. 50,. § 1), is a power which can only be exercised by means of an ordinance duly enacted. Purchasers of refunding bonds issued by such cities under said act must ascertain whether an ordinance authorizing the issuance of such bonds has been enacted, and cannot rely upon a recital contained therein that they have been legally issued, when no ordinance was in fact adopted. National Bank of Commerce v. Town of Granada, 54 Fed. 100,10 U. S. App. 692, and.4 C. C. A. 225.</p>

<p>In Error to tbe Circuit Court of the United States for the Northern District of Iowa.</p> <p>This was a suit by John Robson, the defendant in error, against the Mississippi River Logging Company, the plaintiff in error, to recover damages for a breach of a written contract between said parties, that was entered into on August 23, 1882. A jury having been waived, the'case comes before this court for review on a special finding of facts made by the Honorable O. P. Shiras, before whom the case was tried. The several special findings that are most material to the discussion of the several errors that have been assigned are as follows;</p> <p>“(2) I find that, for a number of years prior to 18S2, the defendant company was engaged in the business of running and driving logs and timber down the Flambeau and Chippewa rivers, in the state of Wisconsin, to the Mississippi river, including in such business logs and-timber owned by the defendant and logs and timber owned by third parties.</p> <p>“(3) I find that, prior to 1882, the general mode in which the said business was carried on was as follows: The logs and timber were placed by the owners thereof on the banks or in the water of the said Flambeau and Chippewa rivers and the tributaries thereof. The driving of the logs down the rivers was performed by the defendant corporation or by the Chippewa Lumber & Boom Company, which latter company was under the control and management of the defendant. When the logs reached Beef Slough boom, which was situated on the lower part of the Chippewa river, they were taken possession of by the Beef Slough Boom Company, and were run into the boom managed by said company, and the logs belonging to the different owners were separated from the common mass, and run into pockets. Having been thus assorted, they were then brailed and formed into rafts in proper condition to be taken in tow by the raft boats, which conveyed them to their several points of destination upon the Mississippi river.</p> <p>“(4) I find that for a number of years prior to the year 18S2 the plaintiff, John Robson, had been engaged in the lumber business upon the Mississippi river; that he had a sawmill at Lansing, upon that river, and that he brought the logs sawed at the mill from the lands tributary to the Flambeau and Chippewa rivers in Wisconsin; that he owned a quantity of timber lands tributary to these streams, from which he annually cut a number of logs, and that he also bought logs from other persons, or bought the right to cut logs from lands owned by other persons and tributary to the streams above named; that, for a number of years prior to 1882, all the logs cut or bought by the plaintiff in the regions tributary to the Flambeau and Chippewa rivers were driven for him by the defendant company or by the Chippewa Lumber & Boom Company.</p> <p>“(5) I find that certain differences and disputes in regard to the handling of said logs, and the prices to ho paid therefor by plaintiff, having arisen thereupon on the 23d day of August, 1882, tho plaintiff and defendant entered into a contract in writing, of the following tenor and effect.</p> <p>“ ‘Articles of agreement made and entered into this 23d day of August, 1882, by and between the Mississippi Iiiver Logging Company, a corporation organized under the laws of Iowa, party of the first part, and John Robson, parly of the second part, witnesseth: Whereas, the party of the second part owns a largo quantity of pine lands tributary to the Chippewa and Flambeau rivers and their branches in Wisconsin, and now has a largo quantity of saw logs and timber in said streams, and expects to cut annually hereafter, and deliver in said streams, a large quantity of sa,w logs and timber to be driven to market down said stream, to tho Mississippi river; and whereas, the said party of the first part is engaged in the business of driving logs down-said streams to Beef Slough, for other parties; and whereas, differences having-arisen between the party of the second part and the Chippewa Lumber & Boom Company (which is controlled by the party of the first part) in respect to tho running and driving of logs: Now, therefore, for the purpose of settling all said differences and providing for the future, it is mutually agreed as follows: First. Said party of the first part, in consideration of the premises and of the promises of the said party of the second part, hereinafter mentioned, agrees to take possession and control of all logs and timber which the party of the second part shall deliver in said Chippewa river at or below the east and west forks thereof, and ail that shall he delivered in said Flambeau river at or below the north and south forks of said stream, and to drive the same, at its own cost, charges, and expense, down' said streams to and into Beef Slough boom, not exceeding an average of twenty-five millions of feet annually; said logs to be driven each season with all reasonable dispatch, and with as much care and facility as it shall drive its own logs. Tho logs of the party of tho second part now in said streams are to he driven by said first party under this agreement. Any charges to be paid the Chippewa Lumber and Boom Company, or any other company, person, or persons, on account of said logs or any of tho same, between tlie aforesaid forks of said streams and said Beef Slougli boom, are to bo paid by the said party of the first part. Second. And the said party of the first part, in consideration of the promises, further undertakes and agrees that tho charges of the said Beef Slough Boom Company shall not exceed sixty cents per thousand "foot for booming, assorting, and delivering in pockets and watching tho said logs of the said party of the second part at all the mills on the Chippewa river. Third. And the party of the first part, in consideration of tho promises, further undertakes and agrees to brail and deliver to the said second party, in a, proper and usual manner, his said logs ready to be taken in tow by boat after the same are turned out into pockets by said Beef Slough Boom Company, and to do the same with all reasonable dispatch. Fourth. And the said party of the second part, in considera tion of the premises, promises and agrees to pay to the said party, annually, at ihe close of each season’s business, for taking the care, control, and delivering said logs into Beef Slougli boom, as agreed as aforesaid, the sum of two hundred and fifty dollars; and, for fox-ailing and delivering said logs ready for the towboat, twenty-five cents per thousand feet. And said party of the second part also further agrees to return to the said party of the first part ihe hrailing lines used in brailing said logs, unless the same shall have been three times so used. Fifth. In case the said party of tho second part associates any person or persons with him as partner ox- partners in such lumbering- business, this agreement is to stand, apply, and operate in respect to such partnership. But no logs are to be handled by said party of the first part under this agreement except such as shall be owned by said party of the second part, or by him and others as partners. The cost of scaling; the said logs as the same are turned into said Beef Slough boom is to bo paid equally by the parties hereto.</p> <p>“ ‘Witness our hands and seals, this 23d day of August, 1882.</p> <p>“ ‘Mississippi River Logging Co.</p> <p>“ "F. Weyerhauser, Ft.</p> <p>“ ‘John Robson.’</p> <p>“(G) I find that after the date of this contract, and up to April 4, 1889, both parties recognized their contract to be in full force, and the defendant company took charge of and handled all logs delivered to it by plaintiff in accordance with its provisions.</p> <p>“(7) I find that on April 4, 1889, the defendant company notified the plaintiff, by a letter addressed to him, and received in due course of mail, that it would no longer be bound by said contract, the said letter reading as follows:</p> <p>“ ‘Chippewa Falls, Wis., April 4th, 1889.</p> <p>. “ ‘Mr. John Robson, Winona, Minn.—Dear Sir: You will please to take notice that the Mississippi River Dogging Company elects to, and docs hereby, terminate the contract made with you for driving your logs oh the Chippewa and Flambeau rivers in the state of Wiscousin, and for fitting said logs at Reof Slough for transportation down the Mississippi, being the contract bearing date August 23d, 18S2, all the provisions of which are hereby terminated, and will not be hereafter considered binding between the parties. If you do not receive your logs at Beef Slough when delivered in the pockets, and fit them for transportation, it will be taken for granted that you elect to have this company act for you in that regard, charging therefor same as for like services done for others.</p> <p>“ ‘Yours respectfully, . Mississippi River Logging Co.</p> <p>“ ‘By F. Weyerhauser, Brest.’</p> <p>“(8) I find that since said 4th day of April, 1889, and as a consequence of the refusal of the defendant comijany to further handle, drive, or care for the logs owned by the plaintiff for the prices named in the contract, the plaintiff has been compelled to pay larger sums for the performance of the work necessary therefor, such additional payments amounting to 38% cents per thousand feet, subject to reduction of the $250 per year, the contract price for driving; and I further find that plaintiff paid the sum of $350.27 as an extra charge for brailing in 1889, in addition to the total of 38% cents increase.</p> <p>“(9) I further find that at the date of the contract in question, to wit, August 23, 1882, the plaintiff had upon the banks or in the waters of the Flam-beau and Chippewa rivers, below the forks thereof, logs and timber to the amount of 14,901,430 feet according to bank scale.</p> <p>“(10) I find that since the said 23d day of August, 18S2, the plaintiff has cut from the lands by Mm owned at the date of the contract, and placed in the waters of the Chippewa and Flambeau rivers, as provided in said contract, timber to the amount of 97,848,024 feet at bank scale, and that there was in April, 1889, standing uncut upon the said lands the further amount of 3,809,000 feet of pine timber at bank scale, and 724,000 feet of hemlock timber.”</p> <p>“(13) I find that in 1884 an extraordinary flood occurred in the Chippewa river, which brought about a change in the channel of the river, near the entrance to Beef Slough, and resulted in the filling up thereof. The defendant company made all reasonable efforts and expenditures to keep open said slough and the entrance thereto, but without avail; and finally, in 1889, Beef Slough was wholly abandoned, and since then it has not been used in connection with the logging business on the Chippewa river.</p> <p>“(14) I find that, when it became apparent that Beef Slough was becoming unfit for booming purposes, a company was organized, under the laws of the state of Minnesota, for the purpose of creating and managing a boom at West Newton Slough, on the west bank of the Mississippi river; and booming facilities costing in excess of $100,000 were there created, ana tue logs coming down the Chippewa river have since then been run into and handled in West Newtan Slough, instead of Beef Slough.</p> <p>“(15) I find that the relations existing between the West Newton Boom Company and the defendant company are substantially the same as those existing between, the defendant company and the Beef Slough Company.</p> <p>“(16) I find that, by the use of the facilities created at West Newton Slough, the logs driven down the Chippewa river can be boomed, brailed, formed into rafts, and be delivered to towboats for transportation down the Mississippi river, but the expense thereof is somewhat in excess of what the same work cost at Beef Slough.</p> <p>“(17) I find that the defendant failed to handle, as it was required to do under the contract, the sum of.42,238,799 feet of pine timber; and that the additional cost for handling the same, which plaintiff has been compelled to pay or will be compelled to pay, equals the sum of $15,611.00 over and above the cost at contract rates. Shiras, District Judge.”</p> <p>In view of the foregoing findings, the circuit court decided that the plaintiff below was entitled to recover. 61 B'ed. 893.</p>

<p>In Error to the Circuit Court of the United States for the North- ' ern District of Iowa.</p> <p>This was a suit which was brought by the defendant in error, the Sioux National Bank of Sioux Oity, Iowa, against the Cudahy Packing Company, the plaintiff in error, to recover an amount of money which the bank had expended in taking up and paying certain pig tickets that had been issued by the Cudahy Packing Company in payment for hogs by it purchased. For some months prior to April 22, 1893, an arrangement had existed between the Union Loan & Trust Company of Sioux City, Iowa, and the Cudahy Packing-Company, by virtue of which the trust company was under an obligation to pay such checks or pig tickets (so termed) as the packing company issued for hogs purchased at the stock yards in Sioux City, Iowa. At the close of each day’s business the packing company gave to the trust company a voucher for the total amount of pig tickets issued by the former company during the day, which voucher contained the statement, printed across its face, that “when approved, dated, and signed, this voucher becomes a draft on the Cudahy Packing Company of South Omaha, Nebraska, payable through the Union Stock Yards National Bank of South Omaha, or the Bankers’ National Bank of Chicago, for - dollars.” On Monday, April. 24. 1893, the trust company found itself insolvent, and without means to pay pig tickets to the amount of 813,509.52 that had been issued by the packing' company the previous .Saturday, and would probably be presented to the trust company for payment during the day.' It accordingly took the voucher, *or $13,509.52, that it had received from the packing- company for Saturday’s purchases, to the Sioux National Bank, with which it kept an account, and proposed to assign the voucher to ihc hank, to obtain the money wherewith to pay the outstanding pig tickets, on account of which the voucher had been executed and delivered. The bank assented to the proposition, took an assignment of the voucher, as if it wore a draft, and subsequently paid checks drawn on it by the trust company in settlement of pig tickets to the amount of $11,513.62. The Cudahy Packing Company refused to pay the voucher when, it was presented to it for payment, claiming that it had funds on, deposit with the trust company, when the voucher was assigned to the plaintiff hank, sufficient to meet all outstanding pig tickets hy it issued on Saturday, April 22, 1893. The hank thereupon sued the packing company on the voucher, claiming in its complaint that il was, in legal effect, a draft or bill of exchange that had been accepted- by the packing company prior to the purchase of the same by the hank. It subsequently, hy leave of court, amended its complaint by adding thereto a count for money had'and received by the packing company from the bank, to the amount it had expended in paying outstanding pig tickets, to wit, for the sum of 811,513.62. There was a trial before a referee appointed by the court, which resulted in a judgment against the packing company for $12,535. 63 Fed. 805. The present writ of error was brought by the packing company to obtain a reversal of the judgment.</p>

<p>1. Circuit Court of Appeals—• Jurisdiction •—Writ of Error to Supreme Court Pending.</p> <p>Tbe fact that a writ of error has been sued out of the supremo court to review a .'judgment, of the circuit court for want of jurisdiction does not prevent Uie circuit court of appeals from entertaining a writ of error to review an order, made after the judgment was entered, which denies a new trial claimed under a statute of a state which gives a defeated party a right to a second trial in an action of ejectment.</p> <p>2. Pn u-tíck —Hum of Exception!:.</p> <p>Tiie fact that a bill of exceptions, rllowing'the proceedings upon a motion for such a new trial, after judgment, was certified after the issue of a writ of error from the supreme conn 1o review the judgment. Is not a fatal objection to such bill.</p> <p>3. Costs—As Condition of New Thru.—Colorado Statute.</p> <p>Code Civ. Proc. Colo. 1887, § 272, provides that the defeated party in an action to recover land may, at any time before the first day of the term succeeding that at width judgment is rendered against him, pay all costs recovered by such judgment, and thereupon have a new trial of the cíase. Another statute (1 Mills’ Ann. St. 1891, § 677) provides that, a successful plaintiii shall recover against (lie defendant his costs to be taxed. Held, that the provision of section 677 entiiles the successful party to all costs of the action, including those of a prior mistrial as well as those of the final trial, and a defeated party seeking a new trial under section 272 of the Code must first pay all costs of the prevailing party at a mistrial, as well as his other costs.</p> <p>4. Same—Prior Erroneous Decision—Rule oe Property and Practice.</p> <p>A party who, after a mistrial, had been defeated on the second trial m an action in the circuit court of the United States in Colorado to recover .lands, paid the costs of the second trial, and in due time' applied for a new trial under Code Civ. Proc. Colo. § 272. Some years before, another judge, sitting- in the same court, had decided that it was unnecessary, in such a case, to pay the costs of the mistrial. The judge to whom the application for new trial was made in this case denied it, after holding it under advisement beyond the time for paying the costs, on the ground that the costs of the new 'trial should have been paid. Held that, as the former decision, though erroneous, might well be regarded as a rule of property and practice, in reliance upon which the applicant had omitted to pay the costs in time, the order denying the new trial should be reversed, and a new trial granted, upon condition of the applicant’s paying the costs within 60 days. Thayer, Circuit Judge, dissenting.</p>

<p>V Negligence—Evidence—Presumption of Care.</p> <p>Libelant, an inspector of grain, while in the discharge of his official duty of inspecting a vessel preparatory to shipping a cargo of grain, fell down a hatchway in the lower deck of the vessel, and was injured. He testified that he followed the directions of the captain of the vessel in going to the place where the accident occurred, and that the lower deck was only lighted by two candles at a considerable distance from the hatchway into which he fell, and which was invisible in the darkness, though he was exercising great care. The captain and crew of the vessel testified, that the deck was well lighted by numerous lanterns and candles, some of them placed immediately around the hatchway. Held that, upon this conflict of evidence, a finding in favor of libelant by the district judge, who saw and heard the witnesses, supported by the presumption against a reckless disregard of his own safety on libelant’s part, would not be disturbed on appeal.</p> <p>2. Admiralty Practice—Time for Appeal.</p> <p>Under section 11 of the act of congress of March 3, 1891 (26 Stat. 829),. an appeal to the circuit court of appeáls in an admiralty proceeding may be taken at any time within six months after the entry of the order, judgment, or decree sought to be reviewed.</p>

<p>1. Evidence—Certificate of Protest—Minnesota Statute.</p> <p>In accordance with the provisions of the Minnesota statute (Gen. St. 1878, c. 2G, § 8; Gen. St. 1894, § 2275) making the certificate of protest of a bill or note of any notary public of that or another state evidence of the facts therein certified, such a certificate is competent evidence, in a federal court sitting in Minnesota, of the presentment, demand, dishonor, or notice of dishonor of a note drawn in Minnesota, and payable and protested in Connecticut.</p> <p>2. Bills and Notes—Notice of Dishonor.</p> <p>It is not essential that a notice of dishonor or of xirotest of a note should state in so many words that the holder looks to the indorser for payment, but a notice from which that fact may be reasonably inferred is sufficient. A copy of the note and of the protest sent to the indorser constitutes such a notice.</p> <p>3. Same—Protest by Officer of Bank.</p> <p>Since the removal of the disqualification of interested witnesses, a notary who is an officer of a bank may legally protest paper belonging to it.</p> <p>4. Evidence—Admission by Agent.</p> <p>A letter written in the ordinary course of business by a clerk in the office of one sought to be charged as indorser of a note, acknowledging the receipt of notice of the protest thereof, is competent evidence of the sending of the notice.</p> <p>5. Measure of Damages—Exchange of Collateral.</p> <p>Where the holder of an indorsed note has exchanged collateral, held to secure such note, without the indorser’s consent, the measure of the indorser’s damage is the difference between the value of the collateral originally held and that for which it is exchanged, at the time of the exchange.</p> <p>6. Evidence—Value of Corporate Stock.</p> <p>Upon the question of the value of stock in a corporation which has been placed in the hands of a receiver, under a statute of the state creating it, in proceedings for its dissolution as insolvent, the opinions of competent witnesses as to the value of the stock are admissible, as is also evidence of the amount and value of the assets and liabilities of the corporation at different times between the appointment of the receiver and the sale of the assets in accordance with the statutory requirements.</p> <p>7. Same.</p> <p>Upon the same question it is also admissible to prove the amounts realized at the sales made of the property of the corporation by the receiver, under the order of the court, in the regular course of the insolvency proceedings, though taking place at a time remote from that to which the inquiry as to the value of the stock relates.</p> <p>8. Same—Competency of Expert.</p> <p>A witness ought not tó be permitted to give an opinion as to the value of an article when it docs not axipear that he has acquired any correct information from which to form an opinion, or that he has forrnéd any opinion whatever.</p> <p>9. Principal and Surety—Delay of Creditor.</p> <p>A surety is not discharged by mere delay of the creditor in enforcing his remedy against the principal until it has become barred by the statute of limitations, when no agreement to extend the timo of payment has been made, and 1he surety has liad the right, at any time, either to pay the debt and enforce repayment from the principal, or to compel the principal himself to pay the debt.</p>

<p>1. Contributory Negligence.</p> <p>On a clear winter night plaintiff was driving, at a gentle trot, along a highway, which ran parallel with defendant’s railroad track, and about 12 feet therefrom, on an open prairie, across which an approaching train could he seen at a distance óf a mile or more. Plaintiff knew that a train was soon to approach from behind him on the railroad, and that his horse, though gentle, would require some care in management when the train passed 'him; but, though so muffled in a coat to protect him from the cold that he could not hear easily, he did not look for the train, and when it approached him his team collided with it, his horse was killed, and his wagon broken. Held, that it was not error to direct a verdict for the defendant on the ground of plaintiff’s contributory negligence.</p> <p>2. Railroad Companies — Duty to Give Signals at Crossings — North Dakota Statute.</p> <p>Held, further, that the defendant railroad company was not required by the North Dakota statute (Comp. Laws 1887, § 8010), requiring a bell to be rung or whistle sounded when any railroad shall cross “any other road or street,” to give these signals at a private crossing, built to give access from a slaughterhouse to the highway, hut not itself oil any highway, though on a section line, which might, under a statute, be opened as a road by the board of supervisors.</p> <p>3. Same.</p> <p>A statute which requires railroad companies to give a warning signal of the approach of trains to their crossings of a road or street imposes no duty to give such warning to those who have not lately used, who are not using, and who do not intend to use, the crossing; and such parties cannot recover of the railroad companies for a failure to give the warning.</p> <p>4. Same—Fencing Track.</p> <p>Where there is no statute requiring railroad tracks to he fenced, it is not error, in an action against a railroad company for damages arising from a collision, to exclude evidence that the track was unfenced.</p> <p>5. Evidence—Cross-Examination.</p> <p>When a witness has testified on direct examination ihat he knows wno put in a railroad crossing, and when it was put in, it is proper, in cross-examination, to ask him how it came to be put in.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>This was an action by T. Knut Anderson against Matthew 0. Burke ami John Burke for personal injuries. The plaintiff recovered judgment in the circuit court. Defendants bring error. Affirmed.</p> <p>This action is founded upon alleged negligence of the defendants, who are the plaintiffs in error, whereby the plaintiff below sustained serious personal Injuries from an explosion of dynamite or some other explosive material, alleged to have been left in the ground by the defendants after blasting operations, and at a place where they set the defendant at work without warning oi' knowledge of the danger; the explosion resulting, as inferred, by a blow struck with the pick used by the plaintiff, in oxeara ting, under the direction of the defendants. Matthew 0. Burke was a contractor, engaged in making the roadbed for a railroad near West .Duluth, Minn., in the winter of 1893. His eodefendant, John Burke, had sole charge of the work for him, or, as stated in their joint answer, “was general manager and superintendent of said work, and had charge of said work under asid for” Matthew 0. Burke. The plaintiff was “a common laboring man,” 39 years of age, and had commenced work for the defendants, as such, only three days before the accident. The ground was frozen, and It was found necessary to use explosives in breaking it up preparatory to the work of excavation. Holes were drilled down to the pi-oposed line of grade, charged with either dynamite oi1 black powder, or both, and fired by a fuse or by a battery according to circumstances. The, plaintiff was employed in digging, and had no part in or connection with the blasting, and it appears that he had never before worked where dynamite ■was used, and had no acquaintance with its use. The blasting operations were conducted by John Burke, assisted by a man called the “Frenchman”; and, on the afternoon before the accident, they had blasted in advance of the workmen at the place "where the injury oceui'rcd. On the following morning, February 17th, the plaintiff was sent by John Burke, with other laborers, and without any warning or knowledge of danger, to excavate the ground as it was loft, alter blasting, the plaintiff working with a pick. Within a few moments after commencing work, and while striking with his pick into the bank, an explosion, occurred, of dynamite or some explosive which had been left in the ground, and the plaintiff was seriously injured in his eyes, face, and amis.</p> <p>The i>laintiff asserts negligence 031 the part of the defendants (1) 111 failure to cause the explosion or withdrawal of (lie entire charge used in the blasting before commencing the woj'k of picking and digging; (2) in failure to examine sufficiently the blasting" holes after the explosion, before ordering the commencement of work; (3) in ordering and placing the plaintiff to pick in the bottom of the unexploded hole, without warning him of the danger to be apprehended in tlie work. On the part of the defendant it is claimed that the injury to the plaintiff was the result of unavoidable accident, and 3iot due to negligence of any person; that, after the holes wore drilled, (hey were all “squibbed” by exploding1 a small charge of dynamite ac the bottom, to make a clunnber for the blasting charge, then loaded with dynamite and black powder, connected with the battery, and fired; that the axutoarance of the ground indica iod chat (.here was complete discharge of the explosives, but “in fact a part oí a stick of dynamite, for some reason, failed to explode, and was among the dirt”'into which the plaintiff struck his x>ick. Instructions were requested in behalf of the defendant Matthew 0. Burke (1) directing verdict in his favor, upon the theory that no negligence was shown against him; (2) directing that he is not liable “for anything that the defendant John Burke did or failed to do in connection with the work of charging or unloading or scraping the same out, if the jury find the holes in question were scraped out as claimed by plaintiff.” Error is assigned upon the refusal of the court to so instruct, and also upon the following portion of the instructions given to the jury: “If the accident came to the plaintiff, and he sustained this substantial damage, which he has testified to, through the fault of John Burke in the management of that work, without fault on the part of the plaintiff, then I have no reason to doubt that not only John Burke would be liable, but that his codefendaut, Matthew Burke, would also be liable.” A verdict was rendered in favor of the plaintiff for $4,000. Sundry errors are assigned upon rulings admitting testimony in behalf of the plaintiff tending to show (1) attempt and failure to fire the other holes with .a battery; (2) that the battery had missed fire before the accident; (3) that sticks of unexploded dynamite had been left by their blasting operations previous to the occasion in controversy; (4) that in the blasting in question it was attempted to fire with a battery, but the two lower holes did not explode; (5) that the battery had missed fire on previous occasions. Error is further assigned upon a ruling which excluded the defendant John Burke from answering whether or not, from what he knew of the explosion and the appearance of the ground, “he had then, or has now any doubt but that all those holes exploded.”</p>

<p>In Error to tbe District Court of tbe United States for tbe District of Kansas.</p> <p>This case arose out of the following circumstances: On April 30, 1890, the United States, through Major O. W. Foster, chief quartermaster for the department of Missouri, advertised for proposals to furnish hay and straw for certain military posts; among others, for Ft. Riley, Kan. The advertisement notified bidders that proposals for the delivery of 5,000,000 pounds of hay and 1.000. 000 pounds of straw at Ft. Riley, Kan., would be received at the oflice of the chief quartermaster at St. Louis, Mo., and at the oflice of the post quartermaster at Ft. Riley, “until 12 o’clock noon, central standard time, May 31st, 1890,- and then opened.” A circular issued in connection with the advertisement contained, among other things, the following notice, addressed to bidders: “Deliveries to commence July 1, 1890, if required;, be continued at such times and in such quantities as may be required; and be completed, if required, by October 15, 1890; otherwise, to be completed by June 30, 1891. * * * The proposals must be made in triplicate, * * * and will not be entertained unless accompanied by a guaranty having justification in amount of not less than 10 per centum of the total consideration of the proposal, executed strictly in accordance with instructions printed upon the back of the form, that the bidder will not withdraw his proposal within sixty days succeeding the 31st day of May,' 1890, and that, if the proposal be accepted in whole or in part, he will enter into a contract and bond agreeably to the terms of his proposal within ten days after the day on which he is notified of such acceptance and award, and that, in ease of his failure to enter into such contract and give bond within said time, he will pay to the United States the difference in money between the amount of his bid and the amount for which the proper officer of the United States may contract with another party to furnish said supplies. * * *” The plaintiffs in error Peter Haldane and W. D. Moore filed a proposal on May 30, 189’0, to furnish and stack at Ft. Riley 5.000. 000 pounds of hay, at 15^/10o cents per hundredweight. The other plaintiffs in error, George A. Taylor and L. R. White, signed the proposal as guarantors. Other proposals to furnish hay at Ft. Riley were made by Thomas Dixon, O. J. Cook, and O. M. Dysche, respectively. All of the proposals so made were duly opened on May 31, 1890. Subsequently, on June 10, 1890, C. M. Dysche was duly notified that his bid to furnish and deliver 5.000. 000 pounds of hay at Ft. Riley had been accepted, and that a contract and bond would be forwarded to him for execution as soon as possible. Dysche, it seems, on July 21, 1890, finally refused to enter into a contract with the government to furnish hay at Ft. Riley in accordance with his proposal; whereupon the chief quartermaster, as it is claimed, duly notified Peter Haldane and W. D. Moore that their proposal of May 30th to deliver 5.000. 000 pounds of hay at Ft. Riley was accepted by the government. On or about July 22, 1890, the chief quartermaster also transmitted to them, by mail, a contract, to be by them executed in accordance with their proposal. The contract so tendered contained, among other things, the following clause: “Deliveries on thi^ contract, if required, shall commence on the first day of August, 1890; provided that the agreement is approved, by the quartermaster general, U. S. army; otherwise, not until such approval is obtained.” Haldane and Moore claimed that they received no notice, personal or otherwise, o£ the acceptance by the government of their proposal until July 31, 1890, more than 60 days subsequent to May 31, 1890, and for that reason, and other reasons as well, they declined to sign, the contract or deliver the hay. For their refusal to execute said contract, and to deliver the hay according to their proposal of May 30, 1890, the United States brought an action against them in the district court of the United States JL'or the district of Kansas, and recovered a .judgment against them and their guarantors in the sum of $3,572.28. To reverse that judgment, the defendants below sued out the present writ of error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This was an action by Mrs. D. L. Needham and T. B. T. Williams,, a minor, by his next friend, said Mrs. Needham, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the death of D. L. Needham. Judgments recovered by the plaintiff on two successive trials were reversed on error. 3 C. C. A. 129, 52 Fed. 371, and 11 C. C. A. 56, 63 Fed. 107. On the third trial, plaintiffs again recovered judgment. Defendant brings error. Affirmed.</p>

<p>1. Patents—What Constitutes Invention—Mechanical Skill.</p> <p>Where a. guide bar is adapted, to slide laterally upon a rod or shaft, and to carry with it a circular saw, also movable upon its shaft, it requires only mechanical skill to apply the lover, which actuates the guide bar, between the points of resistance, so as to obviate a tendency to bind when it is applied only at one end. Nor does it require invention, to construct in two .pieces a guide bar formerly made of a single piece, where the latter form Is inconvenient or unserviceable.</p> <p>2. 8amk—Gang Edgers.</p> <p>The Armstrong patent, No. 115,617, for improvements in gang edgers, held void as to claims 1 and 3, 1‘or want of invention over the Parish patent No. 369,025. (</p>

This was a bill by the Union Switch & Signal Company against the Philadelphia Reading Railroad Company and its receivers for alleged infringement of five patents relating to apparatus for electric railway signaling. A demurrer to the bill on the ground of multifariousness was heretofore sustained by the court. 68 Fed. 913. Thereafter an amendment was allowed, and the order sustaining the demurrer was vacated, and an order entered overruling the same.

This was a suit in equity by the Sawyer Spindle Company and others against Taylor and others for infringement of a patent relating to spinning machines.

<p>Patents—Invention — Construction of Claims — Infringem bnt — Tubular Lanterns.</p>

<p>Office and Officer—Shipping Commissioners’ Expenditures—Liability of United States.</p> <p>Reasonable expenses of a shipping commissioner for necessaries incident to the discharge of his duties, including office rent, storage of deceased seamen’s effects, cost of removal from one office to another, stationery, telephone charges, ore., constitute valid charges against the United State», in addition to his salary.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This was a libel by Peter Nelson, a seaman, against the steamship Manhanset (Thomas L. Evans, claimant), to recover damages for personal injuries. The district court entered a decree for libelant for $1,750 and costs. 53 Fed. 843. The claimant appealed.</p>

<p>Appeal from the District Court of the United States for the Southern District,of New York.</p> <p>This was a libel by Grace Howard Potter and others agáinst the steamship Majestic (the Oceanic Steam Navigation Company, claimant), to recover damages for injury to their luggage while being carried as passengers from Liverpool to New York. The district court entered a decree for libelants. 56 Fed. 244. The claimant appealed to this court, which on March 12, 1894, rendered a decision modifying the decree of the district court so as to limit the recovery in favor of each libelant to the sum of $43.67, with interest. See 9 O. 0. A. 161, 60 Fed. 624, where the facts are fully stated. The libel-ants moved for a reargument, but the same was denied. They thereupon filed the present petition, asking the court to certify the cause to the supreme court of the United States for a decision, upon certain questions of law. The points upon which a decision was desired were stated as follows by the petitioners:</p> <p>“Tlie following points, wlaicli petitioners believe bave never yet been determined by any of the courts of the United States, except this court, were discussed by petitioners in their brief, and argued by counsel, and were decided adversely to petitioners: First: (1) That appellant, as appeared from the uneontradicted facts in the case, had issued to petitioners alternative labels for their baggage, directing certain places in the ship, where the baggage, at petitioners’ election, might be stowed, • and requested petitioners to attach the label selected by them to their baggage upon tlie voyage in question. (2) That the issue of the aforesaid label under the conditions aforesaid, and the subsequent attaching of the same to the baggage, as appears from the uncontradicted facts in the case, constituted a part of the contract for passage between the parties, and that the ship became obligated .to carry the baggage on such voyage, in the particular part of the ship designated by the label selected. (3) That the petitioners’ baggage, as appears by the uneontradicted facts in the case, on the voyage in question, had been delivered in London to a railway company, as agent of appellant, and by it checked to New York, and marked before delivery to the railway company by petitioners with the label issued by appellant directing it to be stored in the ‘hold,’ and by the railroad company delivered in good order to the ship, and that the hold proper of the ship contained no portholes. (4) That appellant, as appeared from the uneontradicted facts in the case, failed to stow the said baggage in the hold proper, but stowed it in what is known as ‘Orlop No. 3,’ a different part of the ship, containing portholes, one of which became broken by an unanticipated peril of the sea, -whereby the said package became damaged. (5) That the appellant, by storing the baggage elsewhere than directed by the label selected, deviated from the contract, and thereby became an insurer of the baggage against all loss and damage, even as against unavoidable accident and perils of the sea. * * * Second: (1) That appellant, as appeared from the uneontradicted facts in the case, was guilty of negligence in stowing and caring for said baggage on the voyage aforesaid, and in failing to Inspect it and protect it from injury by the breaking of said porthole, especially as appellant, although labeled for the ‘hold’ with appellant's own label, had placed ¡lie said baggage in orlop No. 3, and not in the ‘hold’ proper, where there were portholes, and had failed to inspect said portholes, one of which poi tholes had become broken by an unanticipated peril of the sea. (2) That the stipulation in the contract ticket, even if accepted by libelants, did not, so far as it purported to limit or relieve the appellant’s liability, operate in law to relieve appellant from its own negligence in stowage or to limit its liability in case of such negligence, and that, so far as it might be held to so limit or relieve the liability of appellant, it was contrary to public policy and void. * w <! A» petitioner-,) are informed and believe, the questions governing the liability of steamship carriers at sea for injury to baggage by negligent stowage and other causes arising under tickets and baggage labels of the character issued to th© petitioners in this case are wholly novel, and have never been passed upon by any of the courts of the United States in admiralty, except in this case, and it is important, for the protection of all persons' traveling on the sea under contract tickets of such character issued by British steamship companies operating steamers to and from various ports in the United States, that the supreme court of the United States should finally, and after careful consideration, decide all questions affecting and concerning tickets of such character, especially as the decisions of the slate courts in such cases are by no means uniform. * * * ‘Wherefore petitioners respectfully pray that this court may certify the following specific questions of law, and each of the same, to the supreme court of the United Sf&tes for its consideration thereupon, upon the entire record in the ease: (I) Whether the issue of the alternative labels to the petitioners, and the use of the same by them, at request of appellant, consriutto a part of the contract between the ship and passenger. (2) If so, v\ hotter the ship did not, upon failure to stow the baggage marked with the label selected, in the place indicated by it, so deviate from the contract as to become an insurer of the safety of the baggage, against all injury and damage from any cause whatsoever. (3) Whether the ship was not guilty of negligence in stowing and caring for the baggage in question, on the undisputed liieis in the case, and particularly In view of the manner in which the baggage had boon labeled and the character of the place in which it was directed by the label to be stowed. (Í) If so, whether the stipulation in the contract ticket, in so far as the same sought to relieve Hie claimant ii-orn or limit its liability for damage caused by its own negligence in stowage, is not contrary to public policy and void under the general maritime law, the law of the United States, and the law of England; and, if valid, whether the same, on its face, is applicable to the present case, in view of the uucontradicted facts in the case.”</p>

<p>Appeal from tlie District Court of the United States for the Southern District of New' York.</p> <p>This was a libel by Philip Reddy against the steam tug Transfer No. 8 (the New York, New Haven & Hartford Railroad Company, claimant), and the steam tug New York Central Lighterage Company No. 2, to recover damages fór a collision whereby libelant’s canal boat was sunk. In the district court a decree was entered for libel-ant against Transfer No. 8, and exempting No. 2. 58 Fed. 670. The claimant of No. 8 appeals.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>This was a libel by the Western Assurance Company of Toronto against the steamer A. B. Valentine, the Cornell Steamboat Company, claimant, to recover damages sustained by a canal boat by reason of a collision with the Valentine. In the district court the libel was dismissed. 55 Fed. 350. Libelant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by Thomas Williams, master of the steamship North Erin, against the steam tug Sammie, George E. Bush and others, claimants, to recover damages alleged to have been sustained by the steamship in consequence of a collision with a tow in charge of the Sammie. The district court rendered a decree for libelant in the sum of.$500, wi tli costs, and the claimants appeal.</p> <p>At tlie time of the alleged collision, the North Erin was lying in a slip on the south side of the Pennsylvania Railroad pier at Jersey City. The steamship Pennsylvania was lying in the same slip on the lower side. The tug came down tlie river with the lighter Hoboken in tow, on two short hawsers, bound for the Pennsylvania. The tide was ebb, and as she rounded to and entered the slip, between the North Erin and Pennsylvania, the Hoboken (as claimed by tlie libelants) struck the North Erin’s port quarter, knocking in a plate and doing some other damage. It was denied in behalf of the tug that any collision occurred. The evidence in behalf of the libelant consisted substantially of the testimony of several persons on board the North Erin that they felt a shock; that some of them at once went on deck, and saw the lighter then lying close under the steamer’s counter. Nobody was on deck at the time of the collision. On the examination of tlie chief oilicer of the North Erin, he was allowed, without objection, to testify that he went on board the lighter Hoboken, saw the captain, and invited Mm to come on board tlie North Erin, and survey the damage done; that lie accordingly came aboard, saw the crack in the plate, and said: “I did not think that I struck her so hard.” At this point objection was made to the conversation as hearsay. The evidence in behalf of the Sammie consisted of the testimony of several of her crew to the effect that 'they were watching and saw no collision, the engineer stating that the lighter was 10 or 15 feet away from the steamer all the time.</p> <p>The decision given in the court below by BROWN, District Judge, was as follows:</p> <p>“I credit the testimony of the steamer’s witnesses, fortified by circumstances, rather than the tug’s negative testimony, unsustained by any possible explanation of the breaking of the plate by any other cause than the lighter in tow of the tug. This decision is reached without reference to the statements of the master of the lighter Hoboken, which I regard as hearsay and irrelevant.”</p>

<p>Collision—Steam Vessels Crossing—Contrary Signals—Change op Course.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This was a petition by Michael Moran, part owner of the steam tug M. Moran, for limitation of liability in respect to the death of two pilot's who were crushed between the tug and a ship which she had towed out to sea, it being alleged in the petition that Dora Culliman, administratrix of the estate of one of the deceased, had commenced an action in the supreme court of the state of New Y ork to recover damages against the libelant and petitioner under the New York statute. The district court entered a decree against the petitioner in the sum of $5,000 upon the claim of the said administratrix. 53 Fed. 845.</p>

This was an action by L. W. and E. D. Springer against Howes & Sheets and others, commenced in a court of the state of North Carolina. The defendants filed a petition and bond for removal to the United States circuit court, and filed a transcript of the record in that court.

<p>1. Jurisdiction of Circuit Court of Appeals—Constitutional Questions.</p> <p>The mere fact that the validity of a state law under the constitution of the United States is drawn in question will not, of itself, deprive the circuit court of appeals of jurisdiction to decide other questions involved in the case, although the judiciary act of March 3, 1891, provides, in section 5, for direct appeals from the circuit to the supreme court, when constitutional questions are involved. And, if it appears that the case may he disposed of upon grounds independent of the constitutional question, the court will take jurisdiction, and dispose of it accordingly. Held, therefore, that where, on appeal from an interlocutory injunction, it appeared that, while the bill challenged the constitutionality of a state law, the further question was also raised whether the case was one of equitable cognizance, the court would take jurisdiction, andt being of opinion that the case was not of equity cognizance, would dissolve the injunction, and order the bill dismissed.</p> <p>'2. Equity Jurisdiction — Enjoining Political Officer — Registration of Electors.</p> <p>A court of equity has no jurisdiction, upon a bill asking relief in behalf of plaintiff and all other citizens similarly situated, to enjoin a county supervisor of registration from performing the duties prescribed by the state registration laws, on the ground that such laws are unconstitutional, and operate to deprive plaintiff and others of their right to vote.</p>

<p>Constitutional Law—Amendments 14 and 15—Jurisdiction ov Federal Courts.</p> <p>The equity jurisdiction of the federal courts cannot take cognizance of a suit by a colored person, on behalf of himself and others similarly situated, against the officers of the state of which he and such others are citizens, to restrain such officers from acting under a statute of that state, claimed to violate Amend. Const. S. arts. 14, 15, by abridging or denying his right to vote, since he has an adequate remedy at law.</p>

<p>ISquity—Jurisdiction—Adequate Remedy at Law.</p> <p>Complainant, the holder of a judgment against a drainage district of Illinois, recovered upon its bonds and coupons, brought suit against the district and the commissioners and treasurer thereof, alleging that the commissioners liad collected assessments, and failed to apply them on complainant’s judgment; that they liad received in payment of assessments coupons cut from bonds held by parties who had consented to a compromise agreement, and bought below par; and that the commissioners wore chargeable with considerable sums collected,—this allegation being based on the theory that coupons received for taxes were to ho treated as cash. The hill prayed that the commissioners be held personally responsible for taxes discharged under their direction, and enjoined from receiving anything but money for taxes. Held, that the bill should be dismissed, since, if there was any personal liability of Hie commissioners, there was an adequate remedy at tew, and that, for the failure to collect the taxes in money, the remedy was mandamus.</p>

Tbis was an application by the Northern Pacific Railroad Company for the removal of the receivers of its property, on the ground of mismanagement and fraud.

This was a suit by the United States against the Flournoy LiveStock & Real-Estate Company and others to restrain the defendants from leasing and occupying certain Indian lands.

This was a suit by Robert Pilgrim and others against William H. Beck, United States Indian agent at the Winnebago Indian reservation, and others, to restrain him from removing complainants from certain lands.

<p>1. Public Lands—Exclusion from Grant.</p> <p>It is not necessary, in order to exclude lands from the operation of a grant by congress in aid of a railroad company, that, title to such lands should have passed to another company, but it is sufficient if such lands have been in any way segregated from the public domain, so as to indicate an intention to exclude them from the grant.</p> <p>2. Same.</p> <p>By an act of July 2, 1864, congress granted lands to the N. P. R. Co., in aid of the construction of a line whose general location was defined in the act. In 1865 the N. P. Co, filed a map of general location, which was rejected by the land office because wrongly supposed to be not sufficiently definite; and in 1870 the company filed another map, which was accepted, and the lands indicated by it withdrawn from entry. Held that, by the grant to the N. P. Co., the land within the limits where its road, as defined by the act and by the maps, might possibly be definitely located, was so far segregated from the public domain as to be excluded from a subsequent grant to another company. Carr v. Quigley, 13 Sup. Ct. 961, 149 U. S. 652, distinguished.</p>

These were three actions at law by Edward M. Lang and others against Clinton L. Baxter and others to recover damages for alleged infringement of patents. Upon trial by the court without a jury,, judgment was rendered for the defendants. 68 Fed. 827. Plaintiffs now make; an application to the court to make additional findings of fact.

<p>1. Monopolies and Trusts—Monopoly by State.</p> <p>The act of July 2, 1890 (26 Stat. 209, c. 647), to protect trade and commerce against unlawful restraints and monopolies, is not applicable to the case of a state which, by its laws, assumes an entire monopoly of the traffic in intoxicating liquors (Act S. C. Jan. 2, 1895). A state is neither a “person” nor a “corporation,” within the meaning of the act of congress.</p> <p>2. Same—Necessary Parties—Jurisdiction oe Federal Courts.</p> <p>Where a person brings an action under section 7 of the anti-trust law of July 2, 1890, against the officials of a state, to recover damages for acts done under authority of a state statute, which gives the state an entire monopoly of the traffic in intoxicating liquors (Act S. C. Jan. 2, 1805), the state itself is a necessary party thereto, and consequently the federal courts would have no jurisdiction of the action.</p>

<p>1. Principal and Agent—Authority to Sign Notes.</p> <p>The G. Co., a manufacturing and trading corporation located in Ohio, had a branch in Missouri, which was conducted by one D., as general agent and manager, and at which a large business was carried on, in the purchase and working up of raw material, and the sale of the finished product over a large territory. D was left in full control of all departments of this business conducted in Missouri, and managed all its affairs, financial and other, with the knowledge and consent of the' officers of the G. Co., and generally without directions or oversight by them. He reported to the G. Co. from time to time, and some of his reports showed entries of “bills payable.” Upon the trial of an action against the G. Co. upon notes signed in its name by D., as treasurer, the president of the G. Co. testified that he knew that D. was signing all the bills payable made by the Missouri concern for goods purchased; that he supposed it was the natural order of things for D. to procure the discount of bills receivable by indorsing them as treasurer of the G. Co.; and that, if money were required in an emergency, he supposed D. would be expected to make and procure the discount of the company’s notes. Held, that D., being left in the absolute control and management of th,e whole business of the G. Co. in Missouri, to act on his discretion, had authority to do whatever a reasonably prudent merchant or manufacturer would do, and, accordingly, to sign promissory notes in the name of the G. Co. Per Caldwell and Thayer, Circuit Judges. Sanborn, Circuit Judge, dissenting.</p> <p>2. Same.</p> <p>Held, that the course of the business, the reports of D. showing notes made by him, and the testimony of the president of the G. Co. were sufficient evidence to authorize a finding that D. was impliedly authorized to sign notes, though, merely as general manager of the business, he would not have such authority. Per Sanborn, Circuit Judge.</p>

<p>1. Negligence—Question for .Tciiy.</p> <p>In an action for personal injuries, it appeared that plaintiff, one E'., was employed by the II. Mining Co., as engineer, to operate the engine which drove shafting in a tunnel in the mine, and to see that the bearings of the shafting were properly oiled. The shaft ran in a narrow and dark tunnel, supported on timbers which were placed at such a height as to make it necessary to stoop under them to reach the several bearings; and it was formed of two pieces, which were coupled together, at a distance of about 12 indies from one of the supporting Umbers, by nuts and bolts which projected from the shaft. If. was examining the bearing of the shaft while it was revolving rapidly, and, when in the act of rising to an upright position, after stooping under the supporting Umber, was caught by the projecting bolts, whirled round the shaft, and seriously injured. There was some evidence that F. was not required to pass through the tunnel, or examine the bearings, while the machinery was in motion; that he might have reached the point to which he was going by a safer route; and that he was careless in rising from under the timber near the coupling;. But there was also evidence that If. was required to examine the bearings, and that he went to the place by the usual way. Held, that the questions of the negligence of the mining company, and Hie contributory negligence of If., were Cor the jury, and that it was not error to refuse 1o instruct the jury that the latter was, and the former was not, established.</p> <p>2. Master and Servant—Risks of Employment.</p> <p>It also appeared that one T. ivas the foreman of the II. mine, which was owned by a corporation having large interests in sundry places under the general charge oí a superintendent; that T. had power to hire and discharge men, direct their work, and generally to control all The ordinary daily operations at the mine, and on one occasion, upon complaint of If., had promised to remove a dangerous obstruction in the tunnel, and had afterwards caused it to be removed. There was evidence that F. had complained to T. of the danger from the projecting bolts on the revolving shaft, and that T. had promised, a few days before tlio accident, to have the, coupling covered with a box, for protection. Held, that it was within the apparent scope of T.’s authority to promise to make 1 lie .coupling safe, and that P. did not, by continuing in the company’s employment in reliance on such promise, assume the risks arising from the dangerous position of the coupling.</p> <p>3. Same—Duty to Furnish Saee Appliances.</p> <p>Held, further, that the rule that a master is not bound to replace an appliance, such as is in common use, because it is possible to get a better one, did not apply to relieve the H. Co. from the duty of protecting the exposed coupling by putting a suitable guard around it.</p> <p>4. Evidence—Cross-Examination.</p> <p>P. having been asked, on cross-examination, whether he had been told by his counsel that his whole case depended on his swearing that he had complained to T., and having answered “No,” was asked whether he did not know that his whole case depended on his so swearing. The court excluded the question. Held no error.</p>

<p>In Error to tbe Circuit Court of tbe Uuited States for tbe Eastern. District of Missouri.</p>

This was an action by Hattie Frost, as administratrix of the estate of James W. Frost, again*: the Oregon Short Line & Utah Northern Thúlv» ay Company to recover damages for the death of the intestate. Plain ¡iff recovered a verdict. Defendant moved for a new trial.

. The township of West Plains, in the county of Meade, state of Kansas, the plaintiff in error, brings this writ of error to reverse a judgment rendered against it, and in favor of Henry W. Sage and others, defendants in error, upon certain coupons cut from refunding bonds issued by it under the provisions of chapter 50 of the Laws of Kansas of 1879. The case was tried by the court upon an agreed statement of facts.

Letters patent of the United States, No. 409,006, issued to Henry S. Hale on August 20, 3889, for an improvement in folding bedsteads. The entire title and interest In said letters patent, and in the invention therein described, were on January 15, 1891, by an instrument duly executed and recorded, sold and assigned by Halo to the Hale & Kilburn Manufacturing Company, a corporation of the state of Pennsylvania.

This was an indictment against Odo Reder for cutting timber from the mineral lands of the United States, contrary to the provisions of the act of June 3,1878.

This was an indictment against A. J. Smith under the act of congress of September 28, 1888, for depositing in the mail a defamatory and threatening postal card. Defendant demurred to the indictment.

<p>Chinese Exclusion Act—Registration—Imprisonment for Crime.</p> <p>Imprisonment upon arrest and conviction for crime is not a sufficient excuse for failure to register within the time limited by Acts Cong. Hay 5, 1892 (27 Stat. 25), and November 3, 1893, providing for the deportation of Chinese laborers who fail to register themselves within the periods provided by said acts, unless prevented by accident, sickness, or other unavoidable cause.</p>

John T. Jones was indicted under Rev. SL §§ 5456, 5460. Heard on motion to quash indictment, plea in abatement, and demurrer.

<p>1. Criminad Law—Setting on Boot Miritaky Exi’kdtiton—Rnv. St. § 5286.</p> <p>Bov. St. § 5286, imposing a penalty upon “every person 'who, within tile territory of the United States * * * sets on foot * * * any military expedition * * * against * ® C: any foreign prince or state * * * with whom the United States are at peace, ’ does not prohibit the shipping- of arms or ammunition or military equipments to a foreign country, nor forbid one or more individuals, singly or in unarmed associations, from leaving the United States for the purpose of joining in any military operations wliich are being carried on between other countries, or between different parties in the same country.</p> <p>2. Samm—Kremunts op the Ob-kease.</p> <p>A military expedition, -within the statute, means a military organiza.tion of some kind, designated as infantry, cavalry, or artillery,, officered and equipped, or in readiness to be officered and equipped, for active hostile operations; and preparing the means) for such an organization would come within, the statute, but to complete the offense it must be shown to have been done within the United States, a,nd that the expedition was to he carried on from t hence against the dominions or territory of a foreign state; and the mere fact that persons of the same nationality as others who are carrying on an insurrection in a foreign state, with which such persons are believed to be in sympalhy, have gathered arms, and prepared to ship them, secretly, and under suspicions circumstances, is not alone sufficient for the conviction of such persons under the statute, without proof that such persons have set on foot a military expedition within the United States against such foreign state.</p>

<p>1. Practice—Waiver or Jury—Review oe Findings—Illinois Statute.</p> <p>The Illinois statute of June 17, 1893 (Laws 111. 1893, p. 96), providing, that no person shall be imprisoned for nonpayment of a fine or judgment except on trial by jury, or after a waiver of a jury in a particular form, does not prevent the trial of a case by a federal judge without a jury upon an oral stipulation, or a written stipulation in a form different from that provided by the statute; and in such case there can be no review of the facts on writ of error.</p> <p>S.. Process—Capias ad Satisfaciendum—Power of Federad Courts.</p> <p>The power of the federal courts to issue the writ of capias ad satisfaciendum for the enforcement of their judgments is derived from section 14 of the judiciary act of 1789 as re-enacted in Rev. St. § 716, and from the process act of 1789, in connection with early enactments by the state on'the subject, and is not affected by the statute of Illinois of June 17, 1893, limiting the right to process against the person.</p>

This was a bill in equity by A. S. Burnell against C. M. Ohown, E. G-. Chown, and the Chown Commercial Company, to enjoin an alleged infringement of a copyright. The bill avers that the plaintiff is a citizen and resident of the state of Iowa, that he conceived the plan of gathering and imparting the information referred to in the opinion, and used the same by circulating bound copies of said information to subscribers in various localities.

<p>Patents—Infringement Suits—Bill by Licensee—Necessary Parties.</p> <p>A patentee entered into an agreement by wbicli he “licenses, empowers, and authorizes the said company to make, use, and sell for use throughout the United States” any devices secured by his letters patent, “the said license and authority to exist only for six years”; and, “in case said company desires it, they may terminate said license and their liability under it by serving a written notice upon” said patentee. Held that, in an action for infringement, the grantee cannot sue without joining the patentee as a party complainant.</p>

This was a suit by the Fuller & Johnson Manufacturing Company against John O. Bender and others for alleged infringement of a patent relating to transplanting machines.

<p>Patents—Validity and Infringement — Troughs.</p> <p>The combination described in the fourth claim of the Campbell patent, No.- 221,031, for an improvement in troughs for watering stock, if patentable at all, does not disclose invention of such a character as will entitle it to the benefit of the doctrine of equivalents; and it must be confined to the precise form described. .66 Eed. 327, afiirmed.</p>

<p>1. AmnuALTY Jurisdiction—State Statutes.</p> <p>A federal court sitting in admiralty cannot enforce a lien given by a .state statute upon a floating structure, unless the same is of such a character as to be a subject of admiralty jurisdiction.</p> <p>2. Same—Subjects op Admiralty Jurisdiction—Floating Pile Driver.</p> <p>A pile driver consisting of a floating platform, carrying a derrick, engine, and pile-driving apparatus, and also furnished with a wheel by which it may propel itself about the bay or harbor, from one x>lace of work to another, and which in its present condition is not fitted for purposes of transportation, is not a subject of admiralty jurisdiction; and contracts to furnish it with supplies are not maritime contracts enforceable in the admiralty.</p>

<p>1. Maritime Liens—Watver-~Giving Security.</p> <p>A maritime lien is waived by accepting notes or other securities extending the time of payment beyond the time within which, by the general maritime law or by statute, the lienor is allowed to enforce the lien.</p> <p>2. Same—Stale Liens—Vessels on the Great Lakes.</p> <p>In respect to vessels navigating the Great Lakes, the general maritime rule limit ing the time within which a lien must he enforced to the particular voyage lias been modified so as to fix the limitation by the seasons of navigation.</p> <p>8. Same—Waiver—Taking Mortgage and Notes.</p> <p>Where one having a maritime lien upon a vessel navigating the Great Lakes libeled her, and had her taken in custody, but afterwards voluntarily released her and dismissed the libel, by agreement with her owner and her mortgagees, accepting a mortgage and notes extending the time of payment 18 months, which would carry it beyond the close of the season of navigation following that in which she was at the time engaged, held, that this was a waiver of the maritime lion as to subsequent innocent lienors, no1 withstanding that the notes contained an express provision that the lien should not be waived, which provision, however, was not incorporated in tbe mortgage.</p>

<p>These were libels filed by John M. Eley and others against the steamer Shrewsbury to enforce alleged liens for supplies, and for claims arising out of certain contracts.</p>

<p>Error to the Circuit Court of the United States for the Southern District oí Illinois.</p>

<p>Error to the Circuit Court of the United States for the District of Indiana. Geo. Shirts, for plaintiff in error.</p>

<p>Error to the Circuit Court of the United States for the District of New Jersey.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p>

<p>Appeal from the Circuit Court of the United States for the District of Delaware.</p>

<p>Error to the Circuit Court of the United States for the District of New Jersey.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p>

<p>Error to the Circuit Court of the United States for the Northern District of Illinois.</p>