Volume 7 — Federal Reporter

Motion to Remand. The plaintiff and all the defendants are citizens of Tennessee, except the Life Association of America, which is a Missouri corporation, now dissolved, and represented by W. S. Relfe, its statutory assignee, who is a citizen of Missouri and a substituted defendant.

<p>In Equity. Bill to Redeem.</p>

In Equity. A suit in equity for an account against the defendants for moneys which complainant claimed respondents had collected for his use from the government of the United States, for work done under contracts with the United States, whereby Bridges, as contractor, and as assignee of other contractors, had agreed to erect marble head-stones for soldiers’ graves. The contracts were let by the secretary of war, in December, 1873, to four contractors: Samuel G-.

<p>Motion to Suppress Depositions,</p>

<p>Motion for New Trial.</p> <p>cited Etting v. Bank, 11 Wheat. 75; Hallaway v. Armstrong, 30 Miss. 504; Adams v. Power, 48 Miss. 451; Dorsey v. Spirey, 57 Miss. 527; Clymer v. Cameron, 55 Miss. 593; Perry v. Clark, 5 Miss. (How.) 495; Brantley v. Carter, 26 Miss.; Cameron v. Watson, 40 Miss. 191; Corbin v. Cameron, 31 Miss. 570; Hanna v. Renfro, 32 Miss. 125; M. & C. R. Co. v. Whitfield, 44 Miss. 266; Simpson v. Bonden, 23 Miss. 524; Pritchard v. Meyers, 13 Miss. (S. & M.) 532; Barkins v. Winston, 24 Miss. 431; Docier v. Ellis, 28 Miss. 720; Bank v. Railroad Co. 53 Miss. 200; Abbrighton v. Railroad Co. 38 Miss. 280; Hurst v. Railroad Co. 36 Miss. 660; Bailey v. Railroad Co. 40 Miss. 402; Garland v. Stewart, 2 George, 314; Gay v. Simley, 3 George, 309; Harris v. Holliday, 4 How. (Miss.) 338; Watson v. Dickens, 12 S. & M. (Miss.) 608; Woods v. Gibbs, 6 George, 559; Storall v. The Bank, 8 S. & M. (Miss.) 305; Philbrick v. Holloway, 6 How. (Miss.) 91; Skinner v. Collier, 4 How. (Miss.) 376; Bohn v. Steam-boat, 7 S. & M. 715; Fox v. Williams, 6 George, 533; Hand v. Grant, 5 S. & M. 508; McMullen v. Mayo, 8 S. & M. 278; Cogan v. Frisly, George, 178; McGhee v. Harrington, 13 S. & M. 403; Atwood v. Meridith, 8 George, 635; Baringer v. Nesbitt, 1 S. & M. 22; Drake v. Sergent, 7 S. & M. 458; Routh v. Agricultural, etc., 12 S. & M. 161; Hare v. Sproul, 2 How. (Miss.) 772; Rulon v. Sintals' Heirs, Id. 881; Garrett v. Hickman, 41 Miss. 94; Wright v. Alexander, 11 S. & M. 411; Dean v. Young, 13 S. & M. 113; Verchum v. Byron, 7 How. (Miss.) 365; Brantley v. Garter, 4 Cush. 282; Simpson v. Bowden, 1 C. Page, 526; Wiggins v. McGimpsy, 13 S. & M. 532; Hill v. Galvin, 4 How. (Miss.) 231; So. Law Rev. 791, (note;) 1 Greenl. Ev. § 51; Best, Prin. Ev. §§ 61, 64, 65, 229, 249; Peck v. Railroad Co. 10 N. Y. 587; McKinney v. Railroad Co. 44 Iowa, 314; Marquelt v. Railroad Co. 33 Iowa, 562; Thomp. on Carriage of Passengers, 302; Railroad Co. v. Vallely, 32 Ohio, 315; Murphy v. Railroad Co. 118 Mass. 228; Haley v. Railroad Co. 21 Iowa, 15; Hutchinson on Carriers, 473; 5 So. Law Rev. (N. S.) 777; 10 Cent. L. J. 41; 9 Cent. L. J. 208; Moore v. Railroad Co. 4 Gray, 465; Holmes v. Wakefield, 12 Allen, 580; Goss v. Goss, 3 Humph. 278; Pettit v. Pettit, 4 Humph. 191; Busby v. Smith, 3 Humph. 406; Law v. Railroad Co. 32 Iowa, 534; Ross v. Railway, 36 Wise, 450; Healing v. Railroad Co. 28 Ohio, 23; Railroad Co. v. Vandiver, 42 Pa. 365; Kline v. Railroad, 37 Cal. 400; Putnam v. Railroad Co. 55 N. Y. 103; Williamson v. Railroad Co. 66 N. Y. 642; Day v. Owen, 5 Mich. 520; Applewhite v. Allen, 8 Humph. 697; David v. Bell, Peck, 135; Brison v. Amitta, Peck, 194; Railroad Co. v. Williams, 55 Ill. 185.</p> <p>cited Angell on Carriers, 525; Thompson on Carriers, 10, 14, 316, 317; Hilliard on New Trials, 384; 3 Graham & Waterman, New Trials, 1063; Jenks v. Coleman, 2 Sumn. 221; Neits v. Clark, 1 Cliff. 149; Thurston v. Railroad Co. 4 Dillon, 321; Seymour v. Railroad Co. Biss. 146; Ferry-boat v. Gregory, 2 Ben. 239; Day v. Woodward, 13 How. 371; Railroad Co. v. Quigley, 21 How. —; Deane v. Pearson, 4 Wall. 605; Railroad Co. v. Owens, 91 U. S. 492; Telegraph Co. v. Eyser, Id. 495; Hall v. De Cuir, 95 U. S. 502; Commonwealth v. Power, 7 Mets. 596; Venton v. Railroad Co. 11 Allen, 104; Gardner v. Mitchell, 6 Pick. 115; Markham v. Brown, 8 N. H. 523; Bennett v. Dutton, 10 N. H. 481; Railroad Co. v. Mills, 55 Pa. St. 211; State v. Overton, 4 Zab. 441; Railroad Co. v. Ayres, 29 N. J. Law, 395; Day v. Owen, 5 Mich. 520; Boss v. Railroad Co. 36 Wis. 450; Barray v. Steam-boat, 67 N. Y. 301; Jackson v. Hook, 5 Cow. 208; Jackson v. Crosby, 12 John. 354; Stephens v. Smith, 29 Vt. 153; Barker v. French, 18 Vt. 460; Briggs v. Gleason, 27 Vt. 116; Railroad Co. v. Vandyme, 57 Inch 576; Railroad Co. v. Anthony, 43 Ind. 188; Railroad Co. v. Blotcher, 27 Md. 286; Travers v. Railroad Co. 63 Mo. 423; Lillis v. Railroad Co. 64 Mo. 476; Railroad Co. v. Burke, 53 Miss. 200; Railroad Co. v. Cole, 29 Ohio. St. 126; Levitsky v. Johnson, 35 Cal. 43; Aldrich v. Howard, 7 R. I. 87; Heaton v. Fire Ins. Co. Id. 508; Martin v. Ehrenfels, 24 Ill. 189; Palace Car Co. 75 Ill. 126; Watts v. Johnston, 4 Texas, 319; Waller v. Graves, 20 Conn. 311; Snowman v. Wardwell, 32 Me. 276; Turnley v. Evans, 3 Humph. 223; Sharp v. Trcece, 1 Heisk. 447.</p> <p>The plaintiff, a colored woman, recovered a judgment against the defendant corporation for $3,000 for a wrongful exclusion from the “ladies’ car” of one of the defendant’s passenger trains. A statement of the defences set up, and the rulings of the court on the demurrer, will be found reported in 4 Fed. Rep. 37, and a synopsis of the charge of the court, on the main question involved is reported in 5 Fed. Rep. 499. Besides the exception to the charge as there found,, the defendant assigned four other grounds for a new trial, as follows:</p> <p>(1) “That the court, in its charge, substantially said to the jury: That such a regulation was unreasonable; for, that it makes the irresponsible conductors of passenger trains the censors of the virtue of the women of the country, as they would necessarily have to pass upon the chastity or unchastity of the mothers and wives and daughters of the country, and might exclude one and allow the other to pass, as it suited their caprices.,</p> <p>(2) “The court erred in refusing to give the fifth instruction asked by defendant, in the following language: ‘If the jury find, from the proofs, that the conductor, in excluding the plaintiff from the ladies’ car, acted in good faith, in discharge of what he regarded as his duty, and not maliciously, or wantonly, or with unnecessary rudeness, although he may have-been mistaken in his daty and violated the rights of the plaintiff, yet she would not be entitled to recover punitive, exemplary, or vindictive damages, but such as are purely compensatory.’ But the court refused to give the instruction as requested, and charged ‘ that such facts should be taken in mitigation of such punitive, exemplary, or vindictive damages as you may think proper to give.’</p> <p>(8) “The court erred in refusing the sixth instruction of defendant, as follows: ‘If the jury find, from the testimony, that the conductor was discharging his lawful duty in requiring plaintiff to leave the ladies’ car, and, in attempting to overcome her resistance, injured her, then the burden of proof that he used unnecessary force and violence is on the plaintiff to satisfy the jury, by a clear preponderance of testimony, that the conductor did uso such unnecessary force and violence; and if the counter-testimony of defendant, as detailed by Hall and Stone, preponderates over that of plaintiff and her witnesses, in the opinion of the jury, then they must find for the defendant.’</p> <p>(4) “Again, we insist that the now testimony discovered after the trial (the witness White) is sufficient to grant a new trial, as the court can easily see that another credible witness, supporting Governor Stone and Hall, as to the alleged choking of the plaintiff, would, in all probability, have limited the recovery to compensatory damage against the defendant. The testimony was discovered only accidentally after the trial, and by no human agency, or reasonable or extraordinary diligence, could it have been discovered earlier.”</p> <p>The affidavits of newly-discovered testimony show that one White was in the car at the time, and he details the occurrences in a way tending to corroborate the defendant’s witnesses. It is said the fact that this witness was present was not discovered until after the trial of the case. The facts not already shown by the previous reports of this case appear in the opinion of the court. It should bo stated that the plea- which justified the exclusion, on account of color, was withdrawn because this company makes no distinction on that account, and the reasonableness of any regulation based on color was, therefore, not passed upon by the court Vide 4 Fed. Bep. 37, 38.</p>

<p>1. Common Carrier—Delay in Transportation—Liability.</p> <p>H. & Co. skipped flour from Milwaukee to London, under a contract which, required the defendant to transport the flour by boat to Ludington, Michigan, thence by rail to Portland, and thence by steamship to London. In an action to recover damages for delay of the flour at Portland,—</p> <p>Held, that as the bills of lading constituted a through contract, i was the duty of the carrier to deliver the flour in London, and to do so within a reasonable time; and that it was as much its duty to seasonably provide vessels for ocean transportation as to furnish cars for the land carriage.</p> <p>That if, at the time of making the contract of shipment, the carrier had no doubt, and if the condition of business on its lines gave it no ground for doubting, that suitable means would be at its command within the usual and ordinary time for conveying tlio flour from Portland to London, and if all reasonable efforts were seasonably employed to obtain such means, and the delay was solely occasioned by an extraordinary and unusual influx of freight upon its linos for foreign export, arising subsequently to the making of the contract, so that it was thereby rendered impossible for the carrier, with proper diligence on its part, to procure vessels to carry the flour within a reasonable time, the carrier would not be responsible for the delay.</p> <p>But if, at the time the contract of shipment was made, there was already an accumulation of business on the carrier’s lines, which incapacitated it, or might reasonably be expected to incapacitate it, for transporting and delivering the flour within a reasonable time, and this was then known to the carrier, or might have been known by proper effort on its part, or if there were then reasonable grounds for a belief on the part of the carrier that such was the state of the case at the time, 1heu the carrier would be liable for the delay, although it was occasioned by such accumulation of business. ,</p> <p>In such case it is the carrier’s duty to inform the shipper of the condition of its lines, so that he may exercise his right to select some other line for the transportation of his property; and if the carrier fails to do this, and takes the property in the face of threatened inability to transport it with requisite dispatch, it must answer for the consequences of the delay.</p> <p>A carrier has no right to take a shipper’s property for transportation, concealing from him at the time existing circumstances within its knowledge, or within its fair and reasonable means of knowledge, and not within the knowledge of the shipper, that may incapacitate, or may be fairly expected to incapacitate it for,the full performance of its duty in transporting the property, and then claim exemption from liability.</p>

<p>1. License to Cross Premises—Liability op Licensor.</p> <p>A naked license to pass over premises does not create any obligation, upon the part oí the licensor, to provide against danger or accident to the licensee.</p> <p>2. Bame—Same.</p> <p>The mere fact that a party, from the nature of his employment, is authorized to cross the tracks of a railroad, will not warrant such crossing at a place other than that provided by the railroad.—| Ed.</p>

Demurrer to Petition. The facts, as they appear by the allegations of the petition, are as follows: The Nebraska Railway Company was a corporation organized for the purpose of constructing a road from Brownsville to Lake City. The precincts of Ohio and Falls City, in the county of Richardson, had voted to subscribe for a certain amount of the capital stock of said railway company, for the purpose of aiding the construction of said railroad.

The record presented to the district judge consists of the affidavit upon which the arrest was made, the warrant of the commissioner for the arrest, and his commitment to the custody of the marshal to await the action of the district judge in the premises. It appears by this record that the commissioner fixed the bail at/$5,000, and in default of it the prisoner was committed as stated.

<p>1. Contempt oe Court—"Warrant oe Commitment—Practice.</p> <p>A party having been adjudged guilty of criminal contempt in the violation of an injunction in a patent suit, (6 Fed. Rep. 63,) and a warrant of commitment being about to issue for the non-payment of the fine imposed, held, if the defendant desired to suspend the execution of the warrant until a final decree could be had, and appeal taken to the supreme court, that he should give a bond, with sureties, to pay the amount of said fine whenever the court should vacate the suspension, and that a reasonable time would be allowed to give such bond after the warrant was issued, during which time the execution of said warrant would be suspended.</p> <p>2. Same—Same—Form oe Process.</p> <p>Form of process for carrying into effect the provision of the order in the contempt proceedings, directing that the defendant stand committed till the fine be paid, prescribed by the court.—[Ed.</p>

<p>1. Soap Incorporating Carbolic Acid—Several Methods of Incor-</p> <p>poration—Infringement—Proof.</p> <p>Re-issued letters patent No. 5,007, for an “improvement in the manufacture of soap,” consisting “ina new soap compound, produced by incorporating carbolic and cresylic acids, either one or both, with ordinary soap,” claimed—“ (1) A soap made by incorporating carbolic acid, or its equivalent, with ordinary soap, substantially as specified; (2) the combination of carbolic acid, or its equivalent, with the oils and fats to be used in the manufacture of soap; (3) the combination of carbolic acid, or its equivalent, with alkaline solutions to be used in the manufacture of soap.” Reid, that in order to show infringement it was not necessary to show that some one of the three methods of incorporation was employed, or that any particular method resulting in a chemical union was used; but that it was sufficient if the soap had the carbolic acid in the body of it, in such a way that the useful properties of the carbolic acid would be . availed of in the use of the soap, while the useful properties of the soap, as a soap, were at the same time availed of.</p> <p>2. Same—Incorporation of Purer Acid—Application to New Pur-</p> <p>poses—Invention.</p> <p>Reid, further, that the incorporation in such compound of a purer and more concentrated acid than existed and was used at the time of the prior production of a similar compound, produced by substantially the same means, whereby the later compound was rendered applicable to new purposes, did not constitute invention.—[Ed.</p>

<p>1. Shipwright’s Common-Law Lien — Possession—Proceedings in State Court to Foreclose—Forfeiture or Waiver of Lien— Estoppel—Conversion—Seizure by Sheriff—Seizure by Marshal—Admiralty Jurisdiction to Enforce Common-Law Lien— State Statute Enlarging Lienor’s Rights—Finding of State Court as to Amount Due, How Far Binding.</p> <p>The common-law lien of a shipwright, who takes a vessel into his possession for repairs, and continues to hold it, is too well established as matter of authority to be open to dispute. The Marion, 1 Story, 68.</p> <p>Where the libellant’s ship-yard was partly on the libellant’s premises and partly on those of the town of P., constituting a public dock, but used by him under an agreement with the town, and the master of the vessel surrendered her there into the actual custody of the libellant, who was understood by both parties to be responsible for her care and safety, although the master, who was also the owner, stayed by the vessel most of the time, and retained the cook and mate, who slept on board—the presence of the master, and the retention of the cook and mate, not being with the intent to retain the custody of the vessel, but to help in repairing and to lessen expenses—</p> <p>Reid, that the libellant had such actual possession of the vessel as would give him a common-law lien. The nature of the possession requisite, or the acts and circumstances indicating it, varies with the nature of the object on which the work is done.</p> <p>Also held, that the act of the libellant, a shipwright, having a common-law lien on a vessel for repairs, in instituting a suit in the state court to foreclose his lien, advertising the interest of the claimant and that of a mortgagee in the vessel for sale at auction under a judgment in the suit, and buying it in at the sale and taking a bill of sale from the receiver, where the receiver never took actual possession, but the uninterrupted possession remained in the libellant, did not operate to extinguish the libellant’s lien; the state court and the United States courts (3 Fed. Rep. 457; 4 Fed. Rep., 552) having declared the whole proceeding null and void, for want of jurisdiction, as affecting the title of the vessel. There was, in fact, no sale, but merely an attempt to sell. What was done created no new title, and vested no new possession in the libellant or in any other person.</p> <p>Although the libellant, believing he had thus acquired a new title, subsequently sought to bond the vessel in this court as owner, he is not estopped by such averment as owner, in his pleading in this court or in the state court, to deny now that he ever had such title, because the fact has since been conclusively found against him in a litigation relating thereto between himself and this claimant. Nor did that void sale, or attempt to sell the claimant’s interest in the vessel by the libellant, constitute such a tortious dealing with the property that he has thereby forfeited or waived his lien. There is no evidence or averment in the answer of any dealing with the vessel herself in connection with that sale.</p> <p>Also held, that the lien was not extinguished by the sheriff seizing the vessel in a replevin suit brought by the claimant against the libellant.</p> <p>Also held, that the libellant’s rights as a lienor were not affected by the subsequent seizure of the vessel by the United States marshal, in a suit for seamen’s wages, nor in a suit for wharfage.</p> <p>Also held, that the libellant’s act in procuring the marshal to seize the vessel in this suit to enforce the lien, cannot operate to extinguish the lien, provided this court has jurisdiction.</p> <p>Also held, that this court has jurisdiction to enforce a simple common-law possessory lien, independent of the question whether the lien- or’s rights wore enlarged or altered by the New York statute giving lienors the right to enforce their liens by a sale of the property. The power of a court of admiralty to order the sale of a vessel does not depend upon the right the libellant may have to sell her, or cause her to bo sold, to enforce his demand; but it is a power inherent in the court, to be exercised in the interest of commerce. The cause being maritime in its nature, the court has jurisdiction of the parties and the subject-matter. It is immaterial that the vessel is a domestic vessel.</p> <p>Held further, that the New York, statute was intended to and did confer on this class of lienors the new and enlarged right to enforce their liens by a sale of the property, notwithstanding, in the particular case oí a maritime contract, the proposed remedy fails because the state could not confer on any of its courts jurisdiction to make the sale.</p> <p>That such failure of remedy does not prevent the statute from having its effect in thus modifying and enlarging the nature of the lien; and a court of admiralty, in enforcing the lien, will give it full effect, according to the intention of the statute, as a lien, carrying with it a right of enforcement by sale of the chattel. The statute is applicable to simple common-law possessory liens, such as that of the shipwright, and is not confined to cases of liens where by the existing law the lienor had already the right to enforce his lien by sale.</p> <p>Also held, that the finding of the state court as to the amount due is not conclusive on the claimant as a judgment. The state statute did not provide for a separate money judgment for the amount due, in addition to the judgment for foreclosure, nor was such judgment in fact recovered in the case. The finding is incidental merely to the chief purpose of the action, which is the foreclosure of the lien.</p>

<p>1. Stevedore’s Services.</p> <p>Upon, general principles tlve services of a stevedore are maritime in their character, and, when performed for a foreign ship, ho has a hen thereon for the value thereof.</p> <p>2. UoitEKm Port.</p> <p>A vessel is in a foreign port, in 1lie sense of the maritime law, when she is in a port without the state where she belongs and her owner resides.</p>

Libel by Browning Brothers against the ship St. .Patrick for damage to a shipment of Lima wood by reason of its contact with chemicals. The facts were as follows: Libellants were the owners of 50 tons of Lima wood shipped from Liverpool to Philadelphia on board the ship St. Patrick, and described as Lima wood in the bill of lading. The ship carried a general cargo, consisting of bleaching powder, soda-ash, and iron.

<p>1. Salvage—Security for Costs by Seamen.</p> <p>Where one of the crew of a salving vessel libelled the saved property to recover his share of the salvage, and a motion was made to compel him to file security for costs, upon the ground that the salvage had been paid to the master of the salving vessel :</p> <p>Held, that in the absence of an agreement on the part of the seaman to waive his right to salvage, he would not be compelled to give security for costs.</p>

<p>Motion to Bemand.</p>

In Equity. On motion to dismiss for want of jurisdiction. The respondent, the St. Louis Shakspear Mining & Smelting Company, is a corporation organized under the laws of Illinois, and by its charter its principal office is declared to be in the city of St. Louis, in the county of St. Clair, and State of Illinois.

<p>1. Foreign Corporation.</p> <p>The Oregon act, (Or. Laws, 617,) prohibiting a foreign corporation from “ transacting business in this state” until it appoints a resident agent therein, was not intended to prevent such corporation from maintaining a suit in the state courts, and it is not in the power of the state to prevent it from maintaining a suit in this court.</p> <p>2. Same.</p> <p>A corporation, formed under “ the national banking act,” is either a citizen of the United States only, or a citizen‘of the state where it is. organized and located. If-the former, it is not a foreign corporation in this state; if the latter, it is a foreign corporation, but for that very reason may sue in the national courts herein, irrespective of the state legislation.</p> <p>3. Separate Property of Married Women.</p> <p>A debt contracted by a married woman is, in equity, a charge upon her separate estate; but, if contracted as suiety for the benefit of another, the authorities are in conflict whether it creates such a charge, unless her intent to have it produce such effect is expressed in the contract; but, in either case, a note given by the wife for the debt of her husband, with a stipulation that the note is taken by the payee “ on the credit” of her separate estate, is sufficient evidence of her intention to charge her estate with the payment of such debt.</p>

<p>1. National Banks—Taxation—Rev. St. $ 5219.</p> <p>The exemption from taxation of the shares of various corporations, under the provisions of a state statute, does not exempt “ moneyed capital in the hands of individual citizens,” within the meaning of section 5219 of the Revised Statutes, relating to the taxation of national bank shares.</p> <p>2. Same—Assessment Roll—Clerical Omission.</p> <p>The omission of a city clerk to extend upon the assessment roll the amount to be paid by each shareholder, until after such roll has been delivered to the city treasurer, does not render the taxation of such shares void.</p> <p>3. Same—Tax Collector—Warrant.</p> <p>In such case, therefore, the tax collector is protected by his warrant, when both such warrant and assessment were apparently regular when they came to his hands.—[Ed.</p>

<p>1. National Banks— Ustrity—Skt-Otw.</p> <p>Interest in excess of the legal rate, received by a national bank, although taken in the renewal of a series of notes, cannot be applied by way of set-off or payment in a suit upon the last of the series.</p> <p>2. Same—Same.</p> <p>In such case, however, the bank cannot recover the illegal interest, although such interest has been finally incorporated in notes bearing legal rates.</p> <p>3. Same—Same.</p> <p>Neither can the bank recover any interest upon such renewal nol.es from 1 he date the interest has been reduced to the legal rate.—|Bn.</p>

<p>Petition lor Mandamus.</p>

This was an action on a policy of life insurance for $10-000,-and there was a verdict for the plaintiffs. The defences made and the facts of the case appear in a report of the, trial found in 5 Fed. Rep. 238.

<p>1. Guardian—Possession of Property in Another State—Past-Due Coupons—Value—Interest—Annual Bests—Accountin» Before and After Termination of Guardianship.</p> <p>It is the duty of a guardian to take into his possession, so far as he is able, the estate of his ward, wheresoever it may be; hence, where the property consisted of shares of stock in a Georgia bank, a transfer of which he could have procured to himself, and it did not appear that the guardian had taken the steps required by the laws of that state to enable a foreign guardian to remove property within the state belonging to his ward, held, on the evidence,—the burden of proof being upon the guardian to show that he could not get possession of the property and invest it as required by the terms of his appointment,—that the defendant was properly charged in the accounting with the value of the property.</p> <p>Where the guardian transferred to his newly-appointed successor railroad and city bonds, together with the past-due coupons accompanying them, and it was agreed that the bonds were worth at the time a certain per cent, of their face value, held, that this was prima facie evidence that the over-due coupons were worth an equal percentage of their face value.</p> <p>Where the wards rejected the investments made by the guardian, and demanded in money the equivalent of a proper investment, the rate of interest with which he is to be charged during the period of the guardianship is that which, with proper and safe investments, he might have realized, and therefore less than the current legal rate.</p> <p>Hence, where the guardianship terminated long before the legal rate of interest in New York state was changed from 7 to 6 per cent., a guardian accounting in this court should be charged with interest during the period of the guardianship at the rate of 6 per cent.,—1 per cent, less than the current rate,—the account to be taken with ' annual rests. King v. Talbot, 40 N. Y. 96.</p> <p>From the termination of the guardianship, however, the guardian’s liability was simply to pay over presently a certain sum of money, not to invest or keep it invested.</p> <p>Therefore, there is no reason for computing the account with annual rests after the termination of the guardianship, nor for charging a less rate than the legal rate of interest in this state, which was 7 per cent, down to January 1, 1880, and 6 per cent, from that date to the present time.</p>

<p>Opening Judgment—New Tbial— Dihtikbee’s Bond—Sukety.</p> <p>A federal court has no power to open a judgment against the surety on a distiller’s bond and grant a new trial, upon the ground that certain facts, existing when the case was tried, were not then put in evidence.—[Ed.</p>

<p>1. Navigation Laws—Rev. St. § 4472—Carrying Petroleum on Passenger Vessels—Practicable Mode oe Transportation.</p> <p>In an action to recover penalties for the violation of section 4472, Rev. St., which prohibits the carrying of petroleum and other dangerous articles upon passenger vessels, but excepts petroleum of a certain fire test, upon routes where there is no other practicable mode of transportation:</p> <p>Meld, that although there was an all-rail route over which the petroleum might have been transported, yet, if the rates charged for transportation by rail were so high as to amount to a prohibition, of the traffic in that article, it was not a practicable mode of transportation within the meaning of that section.</p> <p>' 2. Same—Same—“'Pjractioaude Mode oe Transportation.”</p> <p>Tlieword “ practicablein that section, is used in a commercial or business, and not in a mechanical, sense.</p>

<p>1. Information—Refusal to Plead.</p> <p>The refusal of a defendant to plead to a criminal information will not defeat the jurisdiction of a circuit court.</p> <p>2. Same—Entry of Plea.</p> <p>In such case the entry of a plea of not guilty, under the direction of the court, is a mere matter of form, and amounts to no more than ordering the trial to proceed as if such plea were entered.</p> <p>3. Same—“Indicted”—Rey. St. § 1032.</p> <p>The word “indicted,” in section 1032 of the Revised Statutes, authorizing the court to enter a plea of not guilty when the defendant stands mute, is fairly to be construed to include an information.</p> <p>4. Juror—Prejudice.</p> <p>Prejudice against a person engaged in an illegal business, arising solely from the fact that he was engaged in such business, does not disqualify a juror from sitting upon the trial of such person for the exercise of such unlawful calling.</p> <p>5. Testimony—Witness.</p> <p>Where a witness, otherwise unimpeaehea, testifies under circumstances calculated to create a strong bias, and he states what is, in its nature, incredible, his testimony is not necessarily to be believed.— [Ed.</p>

<p>1. Patent—Re-Issue—Purpose to Cover Infringing Device.</p> <p>Where the purpose of a re-issue is to cover an alleged infringing device by the use of a general term, the now claim will bo closely scrutinized; but if the term is intelligible, or can he made so by expert evidence, it will not be fatal to the patent that it may ho used in a new sense.</p> <p>2. Same—Inventor—Presumption as to State of Art.</p> <p>It is a legal presumption that mechanics interested in upholding or defeating a patent were fully acquainted with the state of the art when they took out their patents. Each is assumed to have borrowed from the other what was first invented or used by the other.</p> <p>3. Same—Combination of Old Devices—Formula of “Known Substitute.”</p> <p>Where the combination of horizontal fingers and j&cks, and the combination of vertical fingers positively attached to jacks, were old, and the complainant claims hoj'izontal fingers positively attached to jacks, the formula of known substitutes will not apply.</p> <p>4. Same—Infringement.</p> <p>The true test of infringement is whether the defendant uses anything invented by the complainant.</p> <p>5. Same—Same.</p> <p>In a patent on harness mechanism, for looms, the complainant’s device, in which the heddle levers are actuated by horizontal reciprocating bars engaging with hooked levers, held, not infringed by defendants’ device, in which they are actuated by a cranked wheel pivoted to a finger connected with them, and engaging with horizontal rotating cylinders.</p>

<p>1. Patent—Shuttle-Box Mechanism for Looms—Alternative Device—Patentability.</p> <p>Compound levers, with slot and pin connection to permit shifting of the fulcrum, being old, the substitution of a connecting rod for the slot and pin, held, to be a mere alternative device, and not patentable.</p> <p>2. Same—Infringement—“Known Substitute”—Colorable Variation.</p> <p>The true test of infringement is the use by the defendant of anything which the complainant has invented, which includes mere colorable variations of his invention.</p>

In Equity. This is a suit to charge defendants as infringers of a patent.

<p>1. Patent Bight.—Equitable Owner—Infringement —Party to Suit.</p> <p>If the owner of an equitable right or interest in a patent institute a suit in equity for his own benefit, in the name of the owner of the legal title to the patent, for an injunction and an account, he will be made a co-plaintiff with the owner of the legal title upon application to the court.</p> <p>2. Same—Same—Same—Same.</p> <p>The application will be sustained, even though made after answer is filed, testimony is published, and the case is placed on the term calendar for final hearing, if it appear that the suit was instituted and the costs were incurred by the owner of the equitable right for his expected benefit and profit.</p> <p>3. Letters Patent No. 132,368—Improvement in Paper Boxes—Anticipation.</p> <p>A box made out of a single sheet of pasteboard or other suitable material, provided with a projecting piece on one end thereof, and cut, folded, and joined by such projecting piece so as to form a packing box having a top and bottom each composed of four pieces of material of desired proportions, the bottom being formed by folding . and cementing the four pieces thereof upon each other, as described and shown in letters patent No. 132,368, dated October 21, 1872, issued to Charles T. Palmer, is anticipated by boxes previously made for bottles and buttons, and therefore said Palmer patent, as respects the first claim thereof, is void.</p>

<p>1. Process Patent—Be-Issub in Two Parts.</p> <p>A process patent was re-issued in two parts, one for the process and one for the product. Held, that the re-issue for the product was valid.—[Ed.</p>

<p>1. Re-tsrue—Failure to Describe Existing Combinations in Original.</p> <p>It is of no consequence tliat, a re-issue states that certain combinations are found in tlie machine which will act in a certain way and effect certain results, when the original did not state that such combinations were found there, or failed to state that said modes of operation and said results would follow, provided the said combinations in fact existed in a machine made according to the drawings and description in tile original patent, or provided the said modes of operation and the said results in fact followed in a machine so made.</p> <p>2. Re-Issue No. 2,125—“Improvement in Sewing Machines” —Infringement.</p> <p>Re-issued letters patent, No. 2,125, granted to John Baclielder, December 12, 1855, for an “infringement in sewing machines,” held infringed, although certain specific devices were found in the defendant’s machine, not known or in use at the date of the Baclielder inventions.-—| Ed.</p>

<p>1. Combination Patent—Mechanical Equivalents—Improvement in Buckboard Wagons.</p> <p>The subject of the complainant’s patent was an improvement in buckboard wagons, whereby a sustaining spring or springs were employed to supplement the functions of the buckboard, bracing it at i1s center of pressure, and yielding with it at its ends, in response to the pressure at the center. Held, that, as the complainant was the first to employ the sutaining spring for the pecuuiiar function which it performed, lie was to be protected not only in the particular devices which he employed for that purpose, but against all other devices which were the mechanical equivalents of his.—[Ed.</p>

<p>1. Invention—Construction—Words.</p> <p>The ordinary signification of the words used by a patentee in describing bis invention must bave tbeir weight when seeking for bis meaning.</p> <p>2. Claim—Construction—State or the Art.</p> <p>A claim should be limited to the specific improvement described, where the state of the art does not admit of a great original discovery</p> <p>3. Letters Patent No. 96,037—Sheet-Metal Tubes.</p> <p>Held, therefore, that a patent for “ the improved method, herein described, of making tubes by rolling the skelp with longitudinal ridges and furrows on its alternate edge-faces, and lapping the same in a spiral direction to form a lock in the manner specified,” was not applicable to the subsequent production of sheet-metal tubes with a continuous folded outside seam, made by a machine subsequently invented and used for that purpose.—[Ed.</p>

<p>In Admiralty. On Exceptions to Libel.</p>

<p>Watchman’s Services—Maritime Lien—Lien Under State Law-Master of British Vessed—Lien—Priority.</p> <p>The master of the British bark B., having arrived at quarantine with a cargo for this port, contracted, September 24th, with libellant to furnish a watchman. All the crew had been sent to the hospital with yellow fever, and did not return. The master also left on the twenty-fourth, and died of the fever November 19th. The watchman remained on board until November 29th, when the marshal sold her under process in another suit, having seized her October 29th, at which time the cargo was discharged.</p> <p>The surplus remaining in the registry of the court, after satisfying other lions, was insufficient to satisfy the master’s claim for wages and the watchman’s for services.</p> <p>On exceptions to the commissioner’s report as to amounts due each, and their priority of payment,—</p> <p>Held, that the claim for watchman’s services after October 29th was properly disallowed as not within the terms of the contract, and because no further necessity for the-services was shown.</p> <p>That it was not allowable, either, under the state law,—3 Rev. St. FT. Y. (6th Ed.) 783,—which does not purport to enlarge the power of the master, who could not bind the vessel for services after the necessity therefor ceased to exist, the cargo having been discharged and the marshal having taken possession.</p> <p>That the watchman’s services prior to October 29th, being for the benefit of all interested in the ship, constituted a maritime lien.</p> <p>That this ruling accords with the present view of what constitutes a maritime contract, the test applied in the case of The Harriet, and other cases, having been considerably modified by subsequent decisions of the courts. The Windermere, 2 Fed. Rep. and cases cited.</p> <p>Also held, that the lien of the master, which he had by the English law as security for his wages, and which is enforceable in the admiralty, (The Wexford, 3 Fed. Rep.,) should be deferred to the maritime lien of the watchman with whom he contracted for the latter’s services in this port.</p>

<p>1. Practice — Misjoinder of Parties — Average Adjustment of Salvage Claims.</p> <p>Misjoinder of parties libellant, when not objected to, will not prevent a decree.</p> <p>Where the cargo of a stranded steamer was saved by wreckers, and by them transported in different lots and different vessels to a place of safety, and there stored:</p> <p>Held, that the service of the wreckers was a continuous service, and all the property saved was liable to contribute towards the salvage, notwithstanding it appeared that part of the service was performed after part of the cargo had been stored in a place of safety.</p> <p>Where a voyage was broken up by the stranding of the vessel, and the cargo was transferred by salvors to a port not the port of delivery, and by an agreement there made between the parties interested in the cargo and J. & H., average adjusters, the latter received the cargo, sold part that could not be identified, adjusted all claims as to the salvage except that of an insurance company, to whom part of the the cargo was abandoned, and made a statement of expenses incurred for general and particular interest, upon which statement all parties made settlement except the insurance company, who refused:</p> <p>Held, that the service performed by the average adjusters was a service which,'in the absence of the agreement with them, would have been necessarily performed by the ship-owners, and was maritime in its character.</p> <p>That the subject-matter of the agreement with J. & H. being maritime, the contract was maritime, and an action upon the -.contract -could be maintained in the admiralty by them against the insurance company for its proportion.</p> <p>Cutter v. Rae, 7 I-Iow. 729, considered overruled by Ins. Co. v. Dun-ham, 11 Wall. 1.</p>

<p>1. Bhktght—Tender op Cargo—Premature Action— Costs—Justihtcatjon op Sureties—Searching Titj.es.</p> <p>In an action against cargo to recover freight, where tiio libel was filed before all the cargo had been landed, and the evidence showed that there was no ability to pay the freight and demurrage, and in fact no intention to pay the same on the part of the charterer:</p> <p>Held, that the action was not prematurely brought, and the ship was entitled lo a decree for the freight.</p> <p>The ease of 1,265 Vitrified Pipes, 14 Blatchf. 274, distinguished.</p> <p>Upon taxation of costs, disbursements made by the libellant for searching titles of sureties offered on a stipulation, expenses of real estate brokers called in to appraise properly, and notary’s fees in taking depositions of sureties, allowed as proper items of a hill of costs, but not telegrams and postage to secure attendance of attorxieys upon tlie examination of claimant’s witnesses in Georgia, it appearing that a persistent attempt had been made to defraud the court, and obtain the discharge of the cargo from custody upon worthless security.</p>

<p>3. Wages—Master oe Foreign Vessel—Priority oe Payment.</p> <p>Where a British vessel was libelled for damages caused by a collision at sea, and was found in fault, condemned, and sold, and the vessel was also libelled by the master to recover his wages and disbursements :</p> <p>Held, that if, by virtue of the English statute, the master is entitled</p> <p>. to a lien upon the ship, his claim is not entitled to a priority of payment out of the proceeds in the registry over those for the damages caused by the collision.</p>

<p>1. Ship—Mortgage of.</p> <p>A mortgagor of a ship in possession with the consent of the mortgagee is thereby authorized to make any change, addition, or repair thereon necessary and convenient for her preservation and use as a ship, so, that it does not wilfully depreciate her value as a security to the mortgagee; and, in such case, the old material displaced by the new may be disposed of by the mortgagor as his property, unaffected by the mortgage.</p> <p>2. Same.</p> <p>But in case said material is not thus disposed of, and is left on board and passes into the possession of the mortgagee with the vessel, and is capable of being used in some form in its ordinary navigation, it would still be within the operation of the mortgage and belong to the mortgagee.</p> <p>3. Same.</p> <p>But if the old material, as such, is not suited for use in the navigation of the vessel, the fact that the mortgagor allows it to remain on board does not show that he did not intend to withdraw it from the operation of the mortgage, and appropriate it in exchange for the new material put in its place.</p> <p>4. Old Copper.</p> <p>While the Canada was in posession of George Howes & Co., as-mortgagors, and making the voyage from HewTork to Portland, Oregon, she was recoppered at Bio de Janeiro, and the old copper stowed in her hold and brought to Portland,when she was taken possession of by Sutton & Co., as mortgagees. Held, that the old copper was separated from the ship, and withdrawn from the operation of the mortgage, and was the property of the mortgagors.</p>

<p>In Admiralty. Libel in rem.</p>

<p>1. RnnrovAii—Act of March 3,1875, § 2, Clause 2.</p> <p>Insured property was destroyed by a fire alleged to have been occasioned by the negligence of the defendant. The insurance covered only part of the value of the property, and was paid by the insurer to the owner. The owner of the property, who was a citizen of Wisconsin, and tiie insurance company, which was a citizen of New York, joined in an action begun in the state court to recover the total loss. The defendant was a citizen of Wisconsin, and attempted to remove the cause to the federal court Held, that the case did not involve a controversy which, within the meaning of the second clause of section 2 of the removal act of 1875, was wholly between citizens 'of different states, and which could be fully determined as between them without the presence of the plaintiff, who was a citizen of the same state with the defendant; and therefore that the case was not removable under that act.</p>

<p>1. Kemoval—Who are “Defendants” Under Section 2, Act of 1875.</p> <p>Where, in a suit between a foreign citizen and citizens of various states, the petition for removal is made by all the defendants except X., the petition makes out a case for removal under the first clause of section 2 of the act of 1875, as being a suit where all parlies defendant have applied for the removal, if X. is an unnecessary and improper party, the complaint making no case on which X. could claim the relief demanded, and although the petition may bo framed so as to attempt to make out also a case under the second clause of the same section</p> <p>2. P.\ me—Petition by Attorney.</p> <p>The objection that the petition for removal was made and filed by the attorney of the defendants is of no force in this court, although section 3 of the act of Aiarch 3,1875, provides only that a1 ‘ party =» may make and file a petition.”</p> <p>3. Same—Averment of Personal Citizenship.</p> <p>The averment of the petition for removal that the defendants (naming them) “ as they are the qualified executors of the last will and testament oí Y., deceased,” were and are citizens, etc., is a sufficient averment of personal citizenship, and should not be construed to refer to their official citizenship as executors.</p> <p>4. Same—Due Execution of Bond.</p> <p>The want of acknowledgment or proof of the execution of the bond for removal is a matter of practice for the state court to pass upon, and cannot be reviewed by this court after the state court has accepted the bond.</p> <p>5. Same—Condition of Bond.</p> <p>The clause in the condition of the bond for removal providing that the defendants shall “ do, or cause to be done, such other and appropriate acts,” etc., is a sufficient compliance with any requirement in section 3 of the act of 1875 that the bond shall be one for appearing in the federal court.</p>

<p>1. Removal—Petition—Allegation of Jurisdictional Facts.</p> <p>A cause is not removable under the act of March 3,1875, or section 639 of the Revised Statutes, unless the petition for removal sets forth the jurisdictional facts.</p> <p>2. Same—Same—Allegation of Citizenship.</p> <p>In a suit against copartners for damages for injury to the person, a removal cannot be had under the first clause of section 2 of the act of March 3, 1875, unless the petition alleges that all of the defendants are of different citizenship from the plaintiff.- [Ed.</p>

<p>1. Removal—Mistake in Petition.</p> <p>A case is removable, under the act of 1875, when the petition sets forth the necessary facts, although the removal is erroneously prayed for under section 639 of the Revised Statutes.</p> <p>2. Same—Act op 1875.</p> <p>The act of 1875 is not repealed by the marginal reference to the same in section 639 of the second edition of the Revised Statutes.— [Ed.</p>

<p>1. Transfer of Title to Steam-Siiip—Delivery — Registration— Res Adjudicata.</p> <p>August 16,1867, the defendant, a British corporation, made a written agreement with the Navigation Company, another British corporation, whereby the latter company, having, preparatory to a dissolution, transferred all its property to two liquidators, under the “companies’ act, 1862,” agreed, inter alia—(1) That for a valuable consideration to be paid, (afterwards paid,) “the Navigation Company and their liquidators will forthwith, by such means, deeds, acts, and assurances as may be necessary or expedient in that behalf, convey, deliver, and make over to the Steam-ship Company all such real and personal property, capable of assignment and transfer, as are comprised in, or make up, or pertain to, the several items appearing under the head of assets in the” books of the Navigation Company; (2) “the Steam-ship Company shall take such property subject, to the several rights and equities therein subsisting, and, in particular, to the discharge of the several liabilities appearing in the said books, papers, and documents, and to all other liabilities to which said property is now subject.” August 16,1867, and after the making of this agreement,, the liquidators delivered to the defendant eight steam-ships, including the Pennsylvania, belonging to the Navigation Company, and the defendant thereafter dealt with said ships as its own property, but no formal written transfer or bill of sale of the vessels was made at the time, other than said written agreement. October 24, 1867, the plaintiff’s intestate was killed by a collision between a canal-boat on which he was and the steam-ship Pennsylvania. October 31, 1867, the plaintiff brought suit against the Navigation Company for damages, and recovered judgment, upon which execution was issued and returned unsatisfied August 25, 1868; the defendant in the present suit having interposed its claim as owner of the said steamship. The plaintiff’s intestate was part owner of the canal-boat, which became a total loss by the collision, and in November, 1867, the plaintiff filed a libel in admiralty, in r&m, against the steam-ship Pennsylvania, claiming damages for the loss alleged to have occurred through the negligence of the persons navigating her, to which the defendant in the present suit filed an answer averring ownership of the vessel, and raising an issue as to the negligence alleged. The case was tried on its merits, and on April 26, 1869, the court dismissed the libel with costs. A bill in equity against the defendant being filed, praying for a sale of so much of the property of the Navigation Company transferred to defendant as might be necessary to pay. the judgment recovered against the Navigation Company, it was held:</p> <p>(1) That the instrument of August 16, 1867, accompanied by a delivery of the ships, was a sufficient transfer of the title of the ships to the defendant, so far as any cause of action growing out of said collision was concerned.-</p> <p>(2) That whether the registered title to the steam-ship Pennsylvania was altered to the defendant before or after August 25, 1868, when the execution was issued, was of no importance in this case, the plaintiff having persisted in the suit against the Navigation Company after full record notice, from the defendant’s answer in the suit in admiralty, that the defendant and not the Navigation Company was the owner of the vessel at the time of the collision.</p> <p>(3) That under the agreement of August 16, 1867, the defendant was under no liability to pay this judgment. It was not a liability of the Navigation Company on that day, nor is it founded on any liability which then existed or had accrued.</p> <p>(4) That there was no identity between the two companies for the purpose of the equitable satisfaction by the new company of the judgment against the old company. As to causes of action arising after August 16,1867, the defendant took the property, not as trustee for the Navigation Company, but as its own, and became liable to respond only in suits directly against itself.</p> <p>(5) That the judgment against the Navigation Company, though involving the question as to whether the Pennsylvania belonged to that company at the time of the collision, is not res adjudicata as against tlio defendant. The fact that the defendant was transferee of the vessel did not make it either a party or a privy to the suit, or a trustee for the old company in respect of the cause of action, the suit being one in personam.</p> <p>(6) That the proceedings in the admiralty suit could not operate as res adjudicate!,. The cause of action was different from that in the in personam, suit, and the judgment in the latter suit was recovered before the decree in the admiralty suit was entered.</p>

<p>1. Renewal of Firm Debt by Partner—Payment of Unlawful Interest Applied to the Principal — Bill to Redeem—Demurrer—Costs.</p> <p>A. loaned tlie firm of B. & C. various sums at different times, receiving firm notes, payable with unlawful interest. B. subsequently took up all the notes except one, giving therefor his bond, secured by mortgage and collaterals. B. paid part of the principal on the note not taken up, and the stipulated interest on all the loans. 0. died, B. became bankrupt, and bis assignee brought this hill to redeem the mortgaged estate and collaterals, alleging that the above debts were satisfied by the payment of the several sums of money which had been paid on account of the debts, but without alleging that any part of them was paid as unlawful interest, or setting up that fact as a ground of extinguishment of the debts, or as affording or a Heeling any relief. Held:</p> <p>(1) Thai the law implied no satisfaction of the firm debts by the giving of B.!s obligation therefor, because it was the intention of the parties to give it in renewal and not in extinguishment and substitution of the firm debts.</p> <p>(2) That the money paid beyond lawful interest on account of a debt, Is, in legal effect, a payment upon the debt, and that the fact was well stated in the hill as constituting payment.</p> <p>(3) That, the plaintiff, as assignee!, is vested with all the rights of the bankrupt, B., as the surviving partner, to have the debt reduced to its just proportions.</p> <p>(4) That as the debts were kept separate and distinct from each other, and interest was paid expressly upon each, and not in gross upon the whole, the payments on account of each debt are to bo applied to the legal interest then duo on that debt, and the residue to the principal as of that date.</p> <p>(5) That the objection that the bill was defective because it did not tender the balance due, not having been taken by demurrer or otherwise until the hearing, cannot prevail now.</p> <p>(6) That the defendant having denied the right to redeem, and the orator not having tendered the balance due, neither party should bo allowed costs. , .</p>

<p>1. New TttrAL—Mandate eeom Suiuíeme Coima’.</p> <p>The circuit court cannot out ertain a motion for a now trial upon the ground of newly-discovered evidence, after a mandate has been received from the supreme court entitling tlie plaintiff to an absolute and final judgment.—[Hd.</p>

<p>1. Life Insurance Policy—Pobfkiturb— Relief.</p> <p>The plaintiff was the holder of a policy issued by the defendant company, which provided that in case of default in any payment of premiums after two full years’ payment had boon made, the policy might he exchanged for a paid-up endowment policy for a certain amount, subject to the condition that the policy, duly receipted, “ shall have been transmitted to and received by the company within 60 days after such default.” The premium due August 23,1877, was unpaid, and no oiler to surrender the original policy for a paid-up policy was made by the plaintiff until March, 1879. Held :</p> <p>(1) That failure to transmit the policy to the company within the 60 days after default, in the absence of circumstances adequate to excuse non-compliance with this condition, involved the loss of all right of the plaintiff to the paid-up policy.</p> <p>(2) That the company, in the light of all the facts and circumstances of the case—having refused, by its agent, to accept the premium on the day it was due, because of proceedings pending against it for dissolution and the appointment of a receiver, and not having thereafter given the plaintiff any notice of an opportunity to pay the premium elsewhere, and having, in reply to his letters of inquiry, denied his right to any information, and having led him to suppose that his policy had wholly lapsed, and that it could do nothing towards reviving the same until clear of the court proceedings, and then only as an act of grace or favor—were estopped to assert that the plaintiff had forfeited his right to the paid-up policy by failure to transmit the original policy within 60 days after non-payment of the premium on August 23, 1877.</p>

<p>1. Construction op Statute—Mortgage a Deed.</p> <p>A mortgage is a deed -within the meaning of the Missouri Statutes, (Rev. St. § 699,) which provides that “ a husband and wife may convey the real estate of the wil'c, and the wile may relinquish her dower in the real estate of her husband, by their joint deed.” Therefore, under said provision, a married woman may mortgage her separate property when her husband joins with her.</p> <p>2. Practice—Equitable Defences in Actions at Law.</p> <p>Equitable defences are inadmissible in actions at law in United' States courts. State practice does not affect the rule.</p> <p>3. Same—Setting up Coulusive Transfer.</p> <p>The proper way to set up a collusive transfer, in fraud of jurisdiction, is hy plea in abatement, and not by answer.</p>

The relator is plaintiff in a judgment recovered in this court in dune, 1877, against Oswego Township, in the county of Labette, Kansas, for $9,221.34.

<p>1. Time Purchase from State—Sale—Execution.</p> <p>The interest which a person has under a time purchase from the state, while the contract remains in force, is property subject to sale upon execution.</p> <p>2. Same—Eight of Purchaser.</p> <p>The purchaser at such sale has a right to make the annual payments and perfect the title.</p> <p>3. Same—Duty of Mortgagor.</p> <p>In the absence of any false representation as to the extent of his interest or contract, at the date of the mortgage under which the property is sold, it is not the duty of the mortgagor to perfect the title by making the annual payments.</p> <p>4. Same—Failure of Title—Kemedy.</p> <p>The proper remedy of a purchaser at execution sale is by motion in the same suit, in case of a total failure of title.</p> <p>5. Same—Same.</p> <p>Section 1300 of the Compiled Laws of Nevada is a rule of decision.</p>

<p>1. Mining Law—Amendment—Section 2324, Rev. St., January 22, 1880.</p> <p>This amendment does not act retrospectively, so as to save a claim from a forfeiture incurred before its passage.</p> <p>2. Same—Relocation.</p> <p>There cannot be any relocation, before the period within which work is required has expired, which can be made valid by a failure to work on the part of the original locators.</p> <p>3. Same—Resumption oe Work.</p> <p>There must, be a bona fide attempt, at least, to resume. Threats seven miles from the claim, without any act towards carrying them, out, are not a sufficient excuse for non-performance.</p> <p>4. Same—Same.</p> <p>Held, also, that if the relocators had entered, and were in actual possession after a forfeiture, although they had not relocated, the original locators would have no right to make a forcible entry for the purpose of resuming work.</p>

<p>1. Notice—Officer—Individual.</p> <p>A person will be held to liave notice as an individual of what he does as president of a corporation.</p> <p>2. Same—Fraudulent Transfer.</p> <p>A., the indorser of a promissory note, was sued together with B., the maker, by B., an innocent holder for value, and judgment was recovered, part of which A. paid, and then sued B. for the amount so disbursed. B. set up as a defence in his answer that the note had been given by him, indorsed by A., to F., a corporation, in part payment for stock in F., of which A, was president; that the balance due on the stock was paid in cash and the note secured by a deposit of the stock with A.; that F. agreed with B. that he might, within one year from the date of the note, have the privilege of forfeiting the stock and cash paid, and be released from all obligation to F., and that in the mean time the note should not be negotiated; that B. had been induced by A. to make the agreement; that A., as president of F., 0 negotiated the note contrary to the agreement; and that B. had, within the year, notified F. that he elected to forfeit the cash and stock and be released, as aforesaid. Held, that the answer set up a good defence.</p>

<p>1. Covenants of Seizin Kun with tub Land. ’</p> <p>A covenant tliat land convoyed is “ the property ” of the grantor, and that it “ has a good right to sell and convey the same,” runs with the land, and will enure to the benefit oí a subsequent transferee..</p> <p>2. Agency—Power to Sell.</p> <p>The agents of a county, empowered to sell property, can sell only the title and interest of the count}', however the proceeds of the sale are to be applied.</p> <p>Henry v. Atkinson, 50 Mo. 266.</p> <p>3. Covenant—Construction of.</p> <p>A covenant of title should be taken in connection with the terms of the deed, and as only applicable to lands thereby conveyed.</p>

<p>1. Patent—Re-Issue—Disclaimer of Amended Description—Estoppel—Equivalent.</p> <p>Where an inventor inserts a description of a modified or improved form in an application for re-issue, and is required, by the commissioner of patents, to disclaim this description as a condition precedent to granting of the re-issue, held, that he is not estopped from enjoining the use of machines containing such modification or improvement.</p> <p>The admission or disclaimer in such case is not of a fact of invention, but of the propriety of inserting a certain clause in the descriptive part of the specification.</p> <p>If the patentee’s invention and his patent rightly included a certain form as an equivalent, it was a mere nullity (like an admission of law) to confess that it did not include it.</p> <p>Leggett v. Avery, 101 U. S. 256, as to the effect of an admission by patentee, construed.</p> <p>2. Same — Mechanism: for Heading Metallic Cartridge Shells— Infringement.</p> <p>Complainant’s machine, in which the shells are carried through a die or a mandrel, and both die and mandrel are moved forward together, forcing the closed protruding end of the shell against a hunter, forming a flange on it, held, infringed by defendant’s machine, in which the die is stationary, and the hunter advances after the mandrel has carried the shell into position.</p>

<p>1. Patent—CoMroRTToits’ Copy Distributor—Infringement.</p> <p>Complainant’s apparatus, consisting of a galley-stand with lettered apartments to hold the galleys, and pins on the side of the stand to hold the copy, lettered to correspond with the respective apartments, held, infringed by a device where the lettered pins were ranged along the wall of the composing room back of the galloy-stand, having lettered apartments corresponding to the respective pins.</p>

<p>1. Infringement—License—Proof.</p> <p>In a suit for infringement, the allegation of a license is an afflrma< tive defence, and must be made out by the proof.—[Ed.</p>

In Equity. Demurrer to Bill for Multifariousness. This bill is brought for infringement of letters patent, and sets out three separate and distinct patents. The first patent, ÜSTo. 76,651, dated April 14,1868, was issued to Charles Q-.

<p>1. Patents—Licensee — Defences — Denying Validity of Patent — Estoppel.</p> <p>In a suit in equity, for an account, of profits and damages, and for an injunction for infringement of a patent, a licensee is not estopped from denying the validity of the patent.</p> <p>2. Same.</p> <p>In such suit the respondent may answer that he was acting under a license, and unless the recitals or covenants of the instrument forbid, he may also deny the validity of the patent; such defences are not inconsistent.</p>

<p>1. Contract—Reverter of Patent Right.</p> <p>A patent owned by A. and B. was assigned by tliemv, as to certain states, to E., a corporation. The consideration of the assignment was the payment to the grantors of $8,500 cash, and the issuing of a prescribed number of shares of stock in E. to them. The cash was paid and the shares issued. The condition of the contract required the payment of a royalty to A. and B. and also exacted, under penalty of forfeiture, the use by E. of reasonable diligence, and its best endeavors to make the corporate scheme a success, the corporation having •been organized to manufacture the patented article. On the other hand, A. and B. agreed to exercise reasonable diligence to promote the success of the enterprise, under the penalty of forfeiture of all rights of reversion. F. was a large stockholder in E., and, as such, furnished the required capital. The corporation was organized in 1872, failed in 1873, and F. purchased its assets, including the patent-light, but did not subsequently comply with the condition as to diligence, ete. Suit was brought by A. and 13. to have the right acquired byF. declared forfeited. Held, 1hat, as it appeared that the plaintiffs had received the full value of their patent-right, and were stockholders in E., which they had caused to be formed, and that as there was a failure on their part to comply with their promises as to making the business a success, no right of reverter or forfeiture existed.</p>

In Admiralty. This was a libel by William B. Slayton, administrator of the estate of Montgomery Grossman, against the Goodrich Transportation Company, owner of tho steamer Alpena, to recover damages for the death of Crossman, occasioned by the foundering of the Alpena in Lake Michigan.

In Admiralty. Libel by the owners of the steam-tug Juno against the schooner Mary E. Long, her cargo, and freight, to recover salvage. The testimony was as follows: About 2 o’clock a. m. on February 21, 1880, the schooner, while sailing up the Delaware bay, grounded on a long and narrow shoal called the Brandywine shoal. For the purpose of working across the shoal she kept her sails set until 5 o’clock a. m., when they were hauled down.

<p>1. Jurisdiction—Wrongful Act of Master—Joinder of Actions.</p> <p>Where a cargo of mineral pliosphate was gathered from the island of Fernando de Noronha, and brought to New York in the brig D., and an action was commenced against vessel and cargo, the libel setting forth libellant’s ownership of cargo and wrongful taking thereof from the island by the master of this vessel in violation of rights ‘ said tó be exclusively given to the libellaht by the Brazilian government to gather this phosphate, and the cargo had been sold, and the proceeds, by consent of libellant, paid into court to abide the event of this, action:</p> <p>It seems that the admiralty has jurisdiction to determine the ownership of the cargo. It seems, also, that the vessel would not be liable for the wrongful act of the master in taking the cargo, in the absence of any authority or ratification of his acts by his owners.</p> <p>Proceedings against a vessel and against her cargo, for causes of action growing out of the same transaction, may be joined.</p>

<p>1. National Banks—Transfer of Stock—Attachment.</p> <p>An unrecorded transfer of national bank stock will take precedence of a subsequent attachment in behalf of a creditor without notice.—[Ed.</p>

This was an application by receivers for authority to pay claims for labor, material, etc., furnished for the operation of the road within five months previous to their appointment.

Petition by a railroad company then in the hands of receivers, presented to the court which had appointed the receivers, and setting forth that owing to an accidental mistake a call issued for the annual meeting of stockholders for the election of officers was inconsistent with the by-laws, and that owing to the temporary absence of the president on business for the company and to other reasons it was desirable to postpone the holding of such meeting.

This was a hearing upon two motions,—one for a preliminary injunction on a bill hied by stockholders of a railroad to restrain the company, which was then in the hands of receivers, from issuing certain “deferred bonds” and from executing a certain mortgage upon its road; and the other for the rescission of an order made in the suit in which the receivers had been appointed, and authorizing the issue of the said “deferred bonds.” The facts appearing by the bill, petition,…

This was a suit upon a contract of insurance against marine risks. The petition alleged that a cargo consigned to plaintiffs, and covered by defendant’s policy of insurance, had been lost at sea, and asked judgment for the amount of the loss. The answer of the defendant set up in substance that the contract of insurance was ultra vires, for the reason that the defendant had no power, under its charter, to insure against perils of the sea.

In Equity. Final hearing upon several pleas filed by the defendant company, Park, and Baxter, in bar of the bill of complaint. On or about April 28, 1871, the defendant company became the owner of certain mining property in Utah known as the Emma mine. The defendants Park and Baxter were large shareholders in that company. It was, shortly, determined to sell the mine in England.

<p>1. Discovert—Officer of Corporation.</p> <p>An officer of a corporation cannot be made a party defendant to a cross-bill, for the purpose of discovery, where he did not derive the desired information in his official capacity.</p> <p>2. Same—Same.</p> <p>In such case the discovery cannot be had, although the officer derived his information from a participation in the creation of the corporation.—[Ed.</p>

In Equity. This was a bill filed by complainants for themselves, and in behalf of all other holders of the “first mortgage 7 per cent, gold bonds” of the Spartanburg & Asheville Railroad, against the Spartanburg & Asheville Railroad Company, J. B. Cleveland, and "W. H. Inman, trustees named in the mortgage, and Rice & Coleman, Fry & Deal, E. Clayton, and John Garrison, creditors of the Spartanburg & Asheville Railroad, as contractors, laborers, and material men, for the…

<p>Ejectment. Motion to dismiss.</p>

<p>Demurrer to Petition.</p>

Demurrer to Petition. Suit on coupons detached from precinct bonds issued to aid in the erection and construction of a steam grist-mill.

Motion lor a new trial. Prior to September, 1878, one Forbes was the owner of a stock of dry goods kept in a‘ store-at Waseca,'Minnesota. On the l7tli of that month Forbes executed a bill of sale of said stock of goods to the plaintiff, and also delivered to him the possession thereof.

<p>1. Practice—Attorney’s Docket Pee—Trial—Hey. St. { 824.</p> <p>In a suit at law there were throe trials before a jury, resulting upon tho first trial in a verdict for the plaintiff, hut followed, upon the second and third trials, in two separate verdicts for the defendant. Hdil, under section 824 of the Revised Statutes, that the defendant’s ■ attorney was entitled to a docket fee of §20 for each of the three trials.—[Ed.</p>

<p>Indictment. Motion in arrest of judgment.</p>

<p>1. Internal Revenue—Fraudulent Rectification of Spirits—Evidence—Rev. St. § 3317—20 St. at Lar&e, 339.</p> <p>In a prosecution, by information, for the violation of section 3317 of the Revised Statutes, as amended by the act of March 1, 1879, (20 St. at Largo, 339,) evidence that the defendant had in his possession a rectifying apparatus, and that illicit spirits had been conveyed to said apparatus in ale barrels, and, in the presence of the defendant, poured into the receiving tub of such apparatus on two different occasions, under suspicious circumstances, is sufficient to justify a jury in finding that the defendant was then carrying on the business of a rectifier, with intent to defraud the government of the tax on the spirits there and then rectified by such defendant.</p> <p>2. Same—Receipt of Distilled Spirits—Rev. St. § S317—20 St. at Large, 339.</p> <p>The receipt of distilled spirits produced at and removed from an illicit distillery, are within the scope of section 3317 of the Revised Statutes, as amended by the act of March 1,1879.</p> <p>3. Same—Averment in Information—Proof.</p> <p>An averment in such information that the spirits were received from some person or persons to the district attorney as yet unknown, was not necessary to a prosecution under the statute, and did not require to be proved.</p> <p>4. Same—Information—Trial—Juror.</p> <p>Upon the trial of such information, the defendant cannot object to the empanelling of a jury upon the ground that a juror whose name was drawn from the jury-box in due order of lot, to try said defendant, had departed the court without leave before said jury had been empanelled.—[Ed.</p>

<p>I. Bankruptcy—Attorneys’ Pees.</p> <p>Under the amended general orders in bankruptcy no allowances out of the estate of the bankrupt can be made to the attorneys of the petioning creditors for having the debtor adjudged a bankrupt, except the §20 docket fee taxable to the prevailing party in a suit in equity.</p>

<p>In Bankruptcy. Petition for Revision*.</p>

<p>1. Patent—Automatic Lawn Sprinklers—Anticipation.</p> <p>Sprinklers with, radial arms, revolved automatically by the force of water passing out through one and the same side of each arm, and sprinklers having a'semi-globular vessel, with radial ridges and perforations on one side thereof, causing the vessel to revolve by the water passing through them, held, not to anticipate a sprinkler having a rose or globe, with holes bored at an angle of inclination, so as to produce a. revolving motion by the forcible discharge of water through them.</p> <p>2. Same—Improvements with Patented Device—Ineringement.</p> <p>The fact that the defendant holds a later patent for improvements will not license him to use the complainants’ patented combination with such improvements. The employment by the defendant of an upright tube in combination with the complainants’ device, enabling him to have an upward jet of water, and the addition of a valve to shut off the water from the rose, so that the jet may be alone used, or both used simultaneously, does not affect the infringement.</p> <p>3. Patent No. 203,069, granted Pennington and Beggs, April 30,1878, for improvement in automatic lawn sprinklers, held, valid.</p>

<p>1. Patent No. 178,994—Improvement in Abbasive Paper—Novelty.</p> <p>Letters patent No. 178,994, granted J. G. Buzzell, June 20,1876, for a new article of manufacture, consisting of a strip of flexible material coated upon its outer face witli abrasive material, and having said face made convex longitudinally and transversely, to be applied to the peripheries of wheels for finishing the heels and edges of boots and shoes, held, invalid for want of novelty.</p>

<p>1. Patent No. 197,913—Improvement in Corsets—Motion for Preliminary Injunction—Consent Decree no Foundation.</p> <p>A decree by consent in one circuit is not such, an adjudication of a patent as will lay the foundation for a preliminary injunction in another circuit.</p>

<p>1. Patent—Judicial Notice of Fobeign Nations—Comity.</p> <p>Courts of the United States take judicial notice of foreign nations and their seals of state, but not of their inferior officers or departments and their seals.</p> <p>2. Fobeign Patent—Section 893, Rey. St. , Construed—Authentication of Foreign Patent—Authentication of Feencii Patent.</p> <p>Section 892, Rev. St., provides that copies from the United States patent-office, certified by the commissioner of patents, shall be evidence in all cases where the originals would be evidence; and section 893, Rev. St., provides that copies of foreign patents, authenticated as in section 892, shall be prima facie evidence of the granting thereof, and their contents, held, that a copy of a French patent, certified by the director of the national conservatory of arts and manufactures, "under its seal, and verified by the ministers of agriculture and commerce, and of foreign affairs, under their seals, but not under the great seal of France, was properly authenticated and admissible in evidence.</p> <p>3. Same—French Patent—Public Patent—Secret Patent—“Patented ” Construed.</p> <p>There are patents in France which may, for public and special reasons, be kept secret. The expression “patented,” in the statute, would seem, from, the signification of the word, to mean only inventions laid open to the public and protected to the inventors, and such is the construction which it has hitherto received.</p> <p>4. Same—Open Patent—Secret Patent — Public Patent Only in Condition to be Certified.</p> <p>It being objected that it did not appear from the copy of a foreign patent, introduced to show prior invention, whether it was an open patent or secret one, held, that since only public records are provable by copy certified merely, and as the authorities of a foreign government would not have a patent in a condition to be certified if it was secret, the fact that it is certified shows it to be what could be certified, and that the invention described by it was, in the sense of the patent law, patented by the original patent of the copy produced.</p> <p>5. Patent No. 63,104—Improved Match-Box.</p> <p>Patent No. 63,104, dated March 19,1867, for an improved mátch-box, held, invalid, by reason of prior French patent No. 52,907, dated February 6, 1862, for the same invention.</p>

<p>1. Design Patent—Section 492.9, Bev. St., Construed—Hew,and Improved” Equivalent to “ New and Original.”</p> <p>Under section 4929, Bev. St., which provides that a patent may he granted for a new and original design, where a patent was granted for a new and improved design, the patent mentioning no prior design, held, that the term improved should he construed to mean a new and distinctive design, and improved as compared with others used ; and, in connection with the term new, that it was original with the patentee.</p> <p>2. Same—Anticipation.</p> <p>Where a patent was for a design consisting of the representation of a bird upon a branch or twig, with various accessories, and the evidence showed several pre-existing bird designs, held, that the design was yet new and original, since none of the alleged anticipations were like it in appearance, either in outline or detail.</p> <p>3. Same—Similarity in Artistic Effect—Differences in Immaterial Details.</p> <p>Where the similarity in two designs is such that the differences between them are not appreciable by observing their artistic effect, such differences being merely in detail, are immaterial, and the designs will bo considered as substantially the same.</p> <p>4. Same—Appearance—Attractiveness.</p> <p>The patent is for the appearance which the design adds to the article, making it desirable according to its attractiveness to those observing and wanting it, and it is the right to the exclusive use of this which is secured to the patentee.</p>

<p>1. Driven Wells—Written Contract—Parol Evidence.</p> <p>Parol evidence oí a written contract lor driven wells is admissible in a suit i'or infringement.</p> <p>2. Same—Presumption of Profits—Accounting.</p> <p>The allegation that the transaction was not profitable would not meet the presumption of profits arising from the putting down of the wells so as to defeat an accounting.</p> <p>3. Same—Damages—Rev. St. $ 4921.</p> <p>. Besides, section 4921 of the Revised Statutes provides for an accounting for damages as well as profits, and there might be damages to be accounted for in such a case.—[Ed.</p>

<p>1. Patent No. 81,132—Peed Water Heaters for Steam Fire-Engines—Infringement—Validity.</p> <p>Letters patent No. 81,132, granted to William A. Brickill, August 18, 1868, for improvement in feed water heaters for steam lire-engines, held, valid, and infringed.</p> <p>2. Same—Same—Invention—Utility—Patentability.</p> <p>Complainant-'s combination consisting of an apparatus for heating waler, circulating through coils of pipe, to be connected, by two readily-detachable tubes, with the boiler of a steam fire-engine, and also with a tank, so that when the engine is not on duty the hot wa ter will circulate through the boiler and keep the engine ready for immediate use, and through the tank, keeping the heating apparatus in order when the engine is away, held, to involve invention, and as it possessed utility was therefore patentable.</p> <p>3. Section 7, Patent Act of 1839, Construed—Use Prior to Aitltcation for Patent.</p> <p>The clause of the act of 1839 which provides that every person and corporation may use, and vend to others to be used, any specific machine, ‘manufacture, or composition of matter which they have purchased or constructed prior to the application for a patent, held, restricted in the case of patents for substantive things to the use of the particular thing' bought or made, and not to a general use of the invention.</p> <p>Pierson v. Eagle Screw Co. 3 Story, 402, 408.</p> <p>MeGlnrg v. Kingsland, 1 How. 202, distinguished.</p> <p>4. Act of 1870—Jurisdiction.</p> <p>The act of 1870 may govern rights under patents issued prior thereto, if the effect would not be to take away rights already secured under such patents.</p> <p>5. Infringement—Agency.</p> <p>A city will be held responsible for infringements by its Are department, though separately incorporated.</p> <p>G. Same—Extent—Interlocutory Decree</p> <p>The extent of infringement shown is immaterial for the purpose of an interlocutory decree.</p>

<p>1. Equity—Practice—Application of Equity Rules.</p> <p>Rules of equity are framed to bring a cause to bearing, and do not apply after a hearing, unless the necessary steps are taken to bring it within their operation, and start the cause anew towards a hearing.</p> <p>2. ['ame—Same—Technical Defects—IYaivek.</p> <p>After a hearing and decree a cause will not be opened for mere technical and unimportant defects in the steps preliminary thereto, where no injustice has resulted to the parties. Such defects, if not objected to at the time, must be considered as waived.</p> <p>3. Patent—Decbee Pro Confbsso.</p> <p>In a suit upon a patent for school furniture against a city, its board of education, and its several successors, where the board last organized failed to answer, and no decree pro confcsao was taken against it, and the cause proceeded without objection to a final hearing and decree upon the pleadings, Tidrf, that such board could not take advantage of the omission to enter the decree fro confeso and tile its answer.</p>

<p>1. Patent No. 69,713, for horse hay rakes, granted to Joseph H. Shire-man October 8, 1867, and re-issued to James E. Wisner December 11, 1877, construed, and fourth, fifth, and sixth claims sustained.</p> <p>2. Patent—Combination—Invention.</p> <p>A combination of parts never before combined does not necessarily involve invention, as where a well-known contrivance is used to perform a function exactly analogous to that in which it was formerly used ; but where such combination produces a new modo of operation and a more efficient machine, and the conception of which involved thought and intellect, it implies invention.</p>

<p>In Admiralty. Appeal from district court.</p>

<p>1. Contract of Affreightment.</p> <p>A bill of lading for live beef cattle shipped, by agreement on the deck of a steamer for a voyage from Baltimore to Liverpool, in December, 1880, contained, in addition to usual exceptions, a clause exempting ship-owners from any loss that might arise through cattle being jettisoned.</p> <p>Held, to mean that the ship-owner was not to be liable for contribution if the cattle should be thrown overboard for the safety of the ship.</p> <p>Held, that with regard to a deck load of live cattle this limitation of the ship-owner’s liability was not unreasonable or against public policy.</p> <p>Held, if the cattle were thrown overboard because, during a prolonged storm, and without any fault of the ship-owner, they bad got loose and were imperilling the ship, that under the limitation in the bill of lading the ship is exempted from contribution.</p>

<p>Libel in Admiralty.</p>

<p>1. Seamen’s Wages— JKxtba Wages—Swedish Code—Voyage Abandoned in a Foreign Post—Marshalling Assets—Remitting Seamen to Suit tn Peksonam:—Master’s Lien.</p> <p>The Swedish bark A., being in custody of the marshal under libel for collision, filed in this district by an insurance company, a French corporation, who insured the cargo of the colliding vessel, and an appeal having been taken from the decree dismissing the libel, the owners were informed by the master of tlio facts, and they instructed him not to bond the vessel, and to look to the vessel for payment of the crow.</p> <p>The master and seamen thereupon libelled her for wages ; a portion of the crew having been discharged on their consent, the master, mate, and two seamen remaining on the vessel till the trial of then-suit for wages. The company, as intervenors, oppose the claim of the master and seamen.</p> <p>Held, that the master simply discharged his duty to the owners in keeping the crew during the temporary delay, until definite instructions were received from the owners to abandon the voyage; that the voyage having been broken np in a foreign port, the seamen were entitled to three months’ extra wages, under the Code of Sweden, which, should begin to run from tlio time the master received instructions that he was not to be put in funds to pay the crew. As to them, this amounted to an abandonment of the voyage.</p> <p>Also held, that this is not a case for marshalling assets by declining jurisdiction of the seamen’s claim for wages, thus remitting them to a suit against the owners in the home port. The admiralty court will not thus exercise its discretion where the remedy suggested is likely to be so delayed that the creditor’s relief may thereby be seriously prejudiced; that no equity exists in favor of the intervenors, appellants from the adverse decree of this court, who, being a foreign corporation, have presumably as complete a remedy against the owner to recover, in the home port, any deficiency that may arise after paying seamen’s wages, if their alleged lien shall be finally sustained, as the seamen have to recover their wages there.</p> <p>Further held, that even the master’s claim to be paid out of the vessel should, under the circumstances of the case, he sustained as against the intervenors.</p>

<p>1. Attachment by State Court — Garnishee— Conflict of Jurisdiction—Marshalling Assets— Seamen —Mortgagee—Attaching Creditors—Successive Garnishments Under Process from Courts of Different Jurisdictions.</p> <p>Service oí monition by the United States marshal for seamen’s wages, upon partios owing freight moneys, does not place the fund beyond the reach of an attachment subsequently issued from the slate court to the sheriff of the county, in an action brought by another against the owner of the vessel.</p> <p>The fund is not taken into actual custody by the officers of the United States court, as in the case of Taylor v. Garryl, 20 How. 583. The relation of debtor and creditor still exists between the garnishee and the defendant, and does not interfere with a second garnishment, whereby the fund will be bound, subject, to be defeated if the fund is called in under the first garnishment by the judgment of this court.</p> <p>In such a ease there is no danger of conflict of jurisdictions, nor of any interference by one officer with the possession acquired by another.</p> <p>Case of The Lottmmmna, 20 Wall. 201, distinguished.</p> <p>Where, in a suit for seamen’s wages, this court ordered the decree therefor to be satisfied out of 1he proceeds of the vessel and freight, and a mortgagee claiming a lien on the vessel by virtue of his mortgage petitioned to have the sailors paid out of the freight in order to protect Ids claim, and a creditor of the owner of the vessel, having a subsequent lien on the freight by attachment issuing out of the state court against the owner, asked to havo the seamen first paid out of the ship in order to protect his lien,—</p> <p>On motion to dismiss the petition of the latter, the question of the respective rights of the parties being also submitted:</p> <p>Held, that the attaching creditor, having parted with no value for his lien on the freight which attached after that of the mortgagee on the vessel, had no greater equity against the mortgagee to have the assets marshalled in his favor than the debtor himself would have had at the time his attachment was laid. Therefore, the mortgagee had tlie'bettor equity to have the assets marshalled, and will be entitled, on proving his mortgage, to have the seamen first paid out of the freight so far as that will go, the whole fund being insufficient to pay his claim and that oí the seamen.</p>

In Equity. This was a petition by the holder of a receiver’s certificate for payment from the proceeds of the sale of the Chicago & Lake Huron Bailroad in the hands of the court.

<p>1. National Banks—Taxation of Shares—Investment in Govern- ■ ment Bonds.</p> <p>In tlxe taxation of tlie shares of a national bank, the shareholders are not entitled to any allowance for such of the capital and surplus of the bank as may be invested in government bonds.</p> <p>2. Same—Taxation of Shares—Assessment.</p> <p>In the taxation of the shares of a national bank, it must appear that the assessors acted under some agreement or rule which necessarily tended to tax such shares at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, in order to render their assessment void under section 5219 of the Revised Statutes.—[Ed.</p>

In Equity. Defendant set up the following plea in bar of the bill: “ This defendant, by protestation, not confessing or acknowledging the matters and things in and by said bill set forth and alleged to be true in such manner and form as the same are thereby and therein set forth and alleged for plea to the whole of said bill, saith: That at the October term, A. D. 1877, of the supreme court of the state of Rhode Island, hold in and for the county of Providence, the Cranston…

<p>1. Removal of Trustee—Mismanagement—Fraud—Injunction—Receiver.</p> <p>In a suit for the removal of a trustee, a court of equity will not summarily interfere, before answer filed, by the granting of a preliminary injunction and the appointment of a receiver, upon charges of fraud and bad business management, unless such charges are clearly established, and the peculiar circumstances of the case imperatively demand the relief sought.—[Ed.</p>

<p>1. Equity Pleading—Corporate Assets—Equitable Liens.</p> <p>A bill to charge the assets of a corporation, in the hands of shareholders, with an equitable lien in favor of creditors, must allege that such assets were divided among the shareholders before the corporate debts were paid.</p> <p>2. Same—Receiver—Personal Liability.</p> <p>Where such bill also seeks to make the receiver of the corporation personally liable, due notice of the debts must be alleged.</p> <p>3. Same—Stockholders—Personal Liability.</p> <p>Where such bill also seeks to charge the individual stockholders of such corporation, the facts necessary to make them personally liable under their charter must be alleged.</p> <p>4. Same—United States—Priority of Claim.</p> <p>Where such bili seeks to establish the priority of a claim in favor of the United States, it must also show whether the corporation was insolvent at the time it was being wound up, and whether the re- - ceiver of the corporation had notice of the debt.—[Ed.</p>

<p>1. Bill oe Review—Error in Law—New Matter.</p> <p>A bill of review can only be brought for error in law appearing in the body of the decree or record, without further examination of matters of fact, or some now matter of fact discovered, which was not known, and could not possibly have been used, at the time of the decree.—|Eu.</p>

<p>1. Receiver—Discharge—Liability.</p> <p>ÍTo action can be maintained against tho receiver of a railroad after such officer has been discharged, and the property transferred to a purchaser, under an order of the court, in foreclosure proceedings.</p> <p>2. Same—Torts—Lien on Property.</p> <p>Such purchaser, however, takes the property subject to all claims against the receiver, when the court has reserved its jurisdiction, upon dual decree, to enforce as liens upon tho property all liabilities incurred by such receiver.—[Ed.</p>

<p>Action of Replevin. Motion for New Trial.</p>

<p>1. Estoppel by Record—Hecogntziínce and its Eoreeiture—Record Importing Absolute Verity.</p> <p>The proceedings with reference to a recognizance and its forfeiture are proceedings of the court, and constitute part of the records of the court; and the record thereof imports such absolute verity that no one against whom it is producible can contradict it.</p> <p>2. Same—Same—Same—Evidence Contradicting Record.</p> <p>In a scire facias, upon a recognizance, testimony to contradict facts stated in the record of the forfeiture of the recognizance, held, incompetent.</p>

<p>1. Taxation—Personal Property—Change of Residence.</p> <p>A statute of the state of Minnesota, in force in the year 1876, imposed a tax upon “all personal property of persons residing” within the state, in reference to the quantity of such property held or owned by such residents on the first day of May of that year. Held, that the personal property of one who had been a resident of the state, but who was in itinere on the first day of May, 1876, for the purpose of making the city of New York the place of his future resi- ■ dence, was subject to taxation under the Minnesota statute.</p> <p>2. Same—Non-Resident.</p> <p>In the year 1877 the statute of the state of Minnesota was amended so as to impose a tax upon “all personal property employed in, trade or business” within the state. Held, that personal property employed within the state for the purposes of private banking, and for the loaning of money on bond or note and mortgage, was employed in business within the meaning of the statute, although such business was in the pi'ocess of being closed up.</p> <p>3. Same—Same.</p> <p>In the year 1878 the statute of the state of Minnesota was amended so as to impose a tax upon “ all personal property” within the state. Pdd, that the statute subjected all personal property within the state to taxation, irrespective of its ownership.—[Ed.</p>

<p>1. Power of Attorney—Revocation.</p> <p>A power of attorney, given to secure the performance of an agreement, cannot be revoked by the donor without a satisfaction of the contract.</p> <p>2. Same—Same.</p> <p>In the prosecution of a suit the plaintiS’s attorneys acquired a lien upon the claim, under an agreement with their client, and caused him to secure the same by the execution of a power of attorney, delegating the control of the litigation to his son. Held, that such power could not be revoked, and new attorneys employed by the donor, until he had satisfied his part of the agreement.—[Ed.</p>

<p>1. Express Trusts—Rev. St. Wis. § 2081, Subd. 5.</p> <p>An express trust to rent and sell lands for the benefit of the grantor luring his life, and of other persons after his death, may be lawfully created under the fifth subdivision of section 2081 of the Revised Statutes of Wisconsin.</p> <p>2. Same—Supplementary Instrument.</p> <p>Where the beneficiaries of such trust, other than the grantor, are named in a supplementary instrument, of a later date, both instruments may be regarded as one in the construction of the trust.</p> <p>S. Same—Designation of Beneficiaries.</p> <p>The designation of certain contingent beneficiaries as a class, and not by name, will not render such trust void for indefiniteness.</p> <p>4. Possession—Title—Estoppel.</p> <p>A vendee who enters into possession under a contract of purchase is estopped from denying the title of his vendor so long as he retains possession under the contract.</p> <p>5. Same—Evidence—Rev. St. Wis. §§ 4069, 4070.</p> <p>Verbal admissions by the vendee that he entered into possession under such contract, and that he had never paid anything on the same, are not rendered inadmissible in evidence, upon the subsequent death of the vendee, by sections 4069 and 4070 of the Revised Statutes of Wisconsin.—[Ed.</p>

<p>1. Imports—Wool Web—Rev. St. § 2504, Sohed. M, p. 477.</p> <p>Certain imported merchandise, made of India rubber, -wool, and cotton, and used for gores, or gussets, in the manufacture of congress boots, was invoiced as wool gusset, or wool terry, and entered as wool web. Held, that such merchandise was “ webbing * * * composed wholly, or in part, of India rubber, not otherwise provided for,” within the terms of section 2504 of the Revised Statutes, (Sohed. M, p. 477, 2d Ed.,) and were therefore only subject to a duty of 35 per cent.—[Ed.</p>

<p>In Bankruptcy.</p>

<p>1. In re Lissburger, 2 Fed. Rep. 153, Affirmed.</p>

<p>1. Re-Issue Mo. 8,460—Patent Mo. 209,393—Improvements in Waxing Paper — Motion for Preliminary In junction — InfringeJÍENT.</p> <p>Re-issued letters patent Mo. 8,460, granted to Siegfried Hammerschlag, October 22, 1878, and letters patent Mo. 209,393, granted to Siegfried Hammersclilag, October 29, 1878, for “improvements in waxing paper,” to render it water-proof, held, infringed as to the first, second, third, and fifth claims of the former, and as to the first and second claims of the latter, upon a motion for preliminary injunction.</p> <p>2. Invention—Laws of Mature.</p> <p>The arrangement of machinery is designed to secure the operation of laws whose operation is certain to follow such arrangement of it, and those certain laws are the laws of nature; and it is because those' known laws are certain to follow such an arrangement that the arrangement is made. The arrangement is none the less an invention because it brings into operation the laws of nature.</p> <p>3. Pioneer Patent—Construction.</p> <p>A patent being a pioneer and foundation patent, both as to process and machine, is not to be construed as confined to specific details, if it fairly admits of the liberal construction to which such a patent is entitled.</p> <p>4. Patent—Utility—Construction.</p> <p>Where, previous to the invention, the article was not capable of being made by a machine or mechanical process then known, and being made by hand was too expensive for general use; and where, by reason of the invention, the article is made of superior quality and greatly cheapened in price, and on these accounts has created a new branch of industry—the patent securing such invention is entitled to a liberal construction.</p>

<p>1. Seamen’s Wages—Absence from Vessel—Left in Foreign Port —Laches—Costs.</p> <p>Where the libellant overstayed his leave of absence on shore in a foreign port, and the ship left him and returned to New York, after waiting for him, at an increased expense, beyond the time when the libellant knew she was to sail, and six years after wages were claimed for the whole voyage back to New York, and $145 for personal effects left on board, the libellant alleging that he did not exceed his leave of absence, and that tho vessel sailed without notice to him :</p> <p>Held, on the evidence, that the libellant went ashore on leave of absence for one hour only, and so understood it; that he was left by the vessel through his own fault, and is not entitled to wages for the rest of the voyage; that, his laches in not sooner making- his claim known creates a strong presumotion that he knew he was not entitled to such wages.</p> <p>Further held, that not having been treated as a deserter he could recover $11.09 for unpaid wages up to tho time when ho left, and $4 proceeds received by the vessel for his clothing; tiiat having, in addition to a small claim for wages, claimed a large sum to which he was not entitled, costs would he refused to the libellant. The Louisiana, 4 Feb. Bep. 751, and cases cited.</p>

<p>1. Seaman’s Wages—Fishing Vessel—Lien—Evidence.</p> <p>Where a cook and a seaman employed on a fishing vessel each libelled her for wages, and it appeared that the owners were to have one-third of the menhaden caught, and the master and crew the other two-thirds in lieu of wages, held, that clear proof of an agreement to roly upon personal credit alone is required to defeat the lien of seamen upon the vessel for their pay. Upon slight or contradictory proofs of such waiver the presumption of the maritime law must control.</p>

<p>1. Damage to Cargo—Neglect to Pump Out Ship—Defective Limbers.</p> <p>A vessel is bound to make good any damage to a cargo of sugar ■which may have occurred through a neglect to pump out the ship, or through a clogging of the limbers by coal dust, or by sugar, or by both coal dust and sugar.</p> <p>2. Same — Payment by Underwriters—Agreement to Repay Any Sum Recovered.</p> <p>The payment of the loss by the underwriters, after a libel had been filed by, the owners of the cargo, under an agreement That the libellants should repay to the underwriters any sum or sums which they might recover by decree or settlement, in virtue of the unseaworthiness of the vessel, or the negligence of her officers or crew, does not afford a defence to the action.—[Ed.</p>

<p>In Admiralty. Suit to recover half pilotage.</p>

In Equity. This was a bill in eqnity, to which the defendant Alma Kerfina interposed a demurrer.

Plaintiff shipped five valuable race-horses, some saddles, etc., on a car of defendant, for transportation from Jersey Gity, New Jersey, to St. Louis, Missouri.

This civil action was originally commenced in the state superior court for Ashe county, to recover the possession of the minerals and metals in a certain tract of land described in the complaint. The pleadings and proceedings are in conformity to the state Code of Civil Procedure.

<p>1. Master and Servant—Contract or Service—Discharge.</p> <p>Where one servant violates or fails to comply with any express or implied condition of the contract of service, which results in material injury to the business of the master, or which amounts to insubordination or disregard of his feelings and proper authority, the contract maybe determined before the expiration of the term of service.</p> <p>2 Same—Same—Same.</p> <p>There is an implied contract upon the part of a servant that she is competent to discharge the duties for which she was employed, and a breach of such contract will, therefore, warrant her discharge before the term of service has expired</p> <p>3. Same—Same—Same.</p> <p>Such discharge is also justifiable where the disposition and deportment of the servant is such as to seriously injure the custom and business of the master.</p> <p>4. Same—Same—Same.</p> <p>. But slight discourtesies, hasty words, and occasional exhibitions of irritation, or even ill temper, are not sufficient cause for a discharge where there are many petty causes for annoyance and irritation in such business.</p> <p>5. Same—Discharge—Damages.</p> <p>If-the master, without sufficient cause, discharges the servant before the expiration of the term, the prima, facie measure of damages is the amount which she would have received had the contract of service been fulfilled.</p> <p>6. Same—Same—Same.</p> <p>The master, however, may show in mitigation of damages that during the balance of the unexpired term she received other similar employment, or might have received such employment by proper efforts.</p> <p>7. Same—Same—Same.</p> <p>She is required in such case, however, only to have used reasonable diligence in obtaining employment in business of the same kind, or similar to that mentioned in the contract.</p> <p>8. Same—Breach of Contract—Condonation.</p> <p>If there has been an actual forgiveness of a breach of contract on the part of a master to a defaulting servant, he cannot afterwards rely upon such breach i-n discharging the servant; but such condonation can in no respect extend to subsequent offences,'or to a continued deficiency.</p> <p>9. Same—Same—Same.</p> <p>Such breach is pi'ima facie condoned by the continued retention of the servant, but the question is one of fact, to be determined by a jury.—[Ed.</p>

<p>1. Insurance—Overvaluation.</p> <p>A policy of insurance is not avoided by an ovcrvalution, in accordance with the terms of the instrument, where such valuation Was made in good faith, and only assumed to make a true representation of the facts so far as they were known to the applicant.</p> <p>2. Same—Title of Assured—Insuraisle Interest.</p> <p>A policy of insurance provided tiiat if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, or if the building stood on leased ground, it must bo so represented and expressed in the written part of the policy, or the same would be void. Held, that so long as the assured, under claim of right, had the exclusive use and enjoyment of the insured property, without any assertion of an adverse right or interest in it by any other person, he had an insurable interest under the condition of the policy.</p> <p>8. Same—Proof of Loss.</p> <p>Defects in the proofs of loss, by reason of the absence of the builder’s certificate and that of the nearest notary or magistrate, is immaterial where the insurers have repudiated all liability under the policy upon other grounds.—[Ed.</p>

An act of congress, approved June 30, 1870, authorized the construction and maintenance of a bridge across the Niagara river by the International Bridge Company, and provided that “all railway companies desiring to use said bridge shall have and be entitled to equal rights and privileges in the passage of the same, and in the use of the machinery and fixtures thereof, and of all the appurtenances thereto, under and upon such terms and conditions as shall be prescribed by the…

<p>Motion for Discharge on Habeas Corpus.</p>

<p>1. Bankruptcy—Proof of Secured .Debt—Possession of Motes After Taking Chattel Mortgages—Purchase by Mortgage Creditor on Execution Sale—Amount to be Credited to Bankrupt— Merger.</p> <p>A creditor proved his debt for money lent, secured by two chattel mortgages for $7,000 and $9,000, respectively, and on promissory notes for the further sum of $5,000. Held, on the evidence, that the register, in expunging tlie proof of debt, erred in finding that the second chattel mortgage was intended to secure the same debt which was secured by the notes. The continued possession of ' the notes was prima facie evidence of the debt, and this continued possession was not explained by the bankrupt nor overcome by other testimony.</p> <p>A creditor having taken chattel mortgages to secure his debt from the bankrupt on property, the bankrupt’s equity in which was after-wards sold on execution against him and purchased by the creditor, who appropriated it to his own use, is chargeable as a credit upon the debt with no larger sum than the actual value of the property, if that is less Ilian the amount of the mortgages. In such a case the mortgagee, by appropriating the mortgaged property to his own use and neglecting to render an account of its use or of its proceeds to the mortgagor, is not to be deemed to have taken the property in satisfaction of the debt, where the debt exceeds the value of the property.</p> <p>The amount of the proceeds of a subsequent sale of the property by the creditor is no test of such actual value, and, should not be credited as such to the bankrupt, in the absence of an agreement between the parties that the creditor was to sell the property and apply the proceeds towards the satisfaction of the debt.</p> <p>Where a mortgage creditor purchases an equity under such circumstances, there should, it seems, be no absolute merger of the creditor’s interest. It seems that it is inequitable that he should obtain any greater advantage over the bankrupt by his purchase than would accrue to any other bidder at the sale to whom it might have been struck down, and who would have to take the property subject to the mortgage liens.</p>

<p>In Bankruptcy. Appeal from district court.</p>

<p>1. Patent No. 209,701—Buckles—Validity—Infringement.</p> <p>Letters patent No. 209,701, granted November 5, 1878, to George AY. McGill, for improved buckles, held, valid. Complainant’s device, consisting of a fastening-plate hinged to the arm-bar of an ordinarily-constructed buckle, with its base terminating in a central single prong, and a prong pierced and extending from its body portion, both prongs being bent at right angles to such plate to enter the article to which the buckle is to be attached through slits cut therein on lines parallel with each other, and clamp such articles by being bent down on either side, held, infringed, by a buckle containing a similarly-constructed plate hinged to two-hoiiscd journals, and not infringed by a buckle with its fastening-plate terminating in a single central prong, with two prongs pierced, and extending from Us body portion not in the same longitudinal line.</p>

<p>1. Lien for Materials—Laches—Taking Other Securities—Waiver —Mortgagee—Possession—Lien on Freight Moneys—Lien of Master—Extra Wages—Disbursements—Marshalling Assets— Attachment— Commissioner’s Fees.</p> <p>A libel was filed against tlie English brig W. and freight for seaman’s wages, including the master’s. Process issued against the vessel only. The owner did not appear, and the proceeds of sale were paid into the registry. C. & Co sued in personam the master and owners for advances in a foreign port to purchase supplies, and attached the freight, which was also paid in. Several others, including C. B. & Co., libelled the ship for materials supplied. A mortgagee claiming possession, petitioned to be paid out of the freight, as well as the proceeds of the vessel. The claims exceeded in amount the whole fund in the registry. The testimony showed that 0. B. & Co. furnished supplies in April, 1877, for coppering the vessel in this port, where the owner resided; but they suffered her to leave without payment. Afterwards they took the owner’s notes in payment, and subsequently, the notes not being paid, a second mortgage on the vessel as security. Although she returned to this port several times, there was no arrest by them until they filed this libel, in July, 1880. On exception to the report of the commissioner, to whom by consent it was referred to take testimony and determine the liens, if any, their priority, etc.,—</p> <p>Held, that, conceding O. B. & Co. had a lien, which, on the evidence, is doubtful, still the extraordinary laches shown by them, and the taking a second mortgage, indicated an intention not to roly upon their admiralty lien, if indeed such lien was not extinguished by the mortgage.</p> <p>Tliat their claim was not entitled to any favor as against subsequent lienors not guilty of laches, and was rightly postponed by the commissioner to that of the other material men; that even the first mortgagee had also the right to insist upon the waiver.</p> <p>Also held, that the first mortgagee’s possession, to entitle him to a lien on the freight, must have been such as to terminate the owner’s possession, and that having failed on the evidence to show he had the act ual custody of the vessel, so as to earn the '‘roight, by delivering the cargo, ho had no lien thereon.</p> <p>Also held, that the master was entitled to a lien for wages and extra wages, under the British shipping act, equally with the seamen, there being no evidence that he had caused the delay in payment. The lien for wages extends to extra wages. S Bisn. Kan. 377.</p> <p>Also held, that the claim of C. & Co., as against the owner, was in the nature of a disbursement by the master for the ship, for which he had a lion on the freight under the British shipping act.</p> <p>Also held, 1hat the voluntary omission of the seamen In not attaching the freight did not prevent the admiralty court from marshalling the assets, and that1 both funds being in court, and all the parties heard, it was unnecessary to compel the seamen to file a petition against the freight in order to effect such marshalling of the assets.</p> <p>That the first mortgagee having suffered the owner to remain in possession and employ the master, the latter’s lien was entitled to priority over Ms.</p> <p>Accordingly held, (the exceptions not raising the question whether material men are prevented from acquiring a lien against a British vessel in a foreign port by reason of the provisions of the British merchants’ shipping act,) that after paying the commissioner’s fees out of the vessel and freight in the proportion of the two funds, the claim of G., & Co., the seamen, and the master, in the order named, should he paid out of the freight.</p> <p>That out of the proceeds of the vessel should he paid the amounts due the pilot, material men, and balance clue the master, in the order named, and the remaining proceeds of vessel, if any, to mortgagee.</p>

<p>1. Close oe Navigation—Seamen’s Wages—Return to Port oe Departure.</p> <p>A vessel was laid up at an intermediate port by the close of naviigation, and the seamen, who had been engaged at a higher rate of wages owing to the lateness of the season, were discharged. Held, under the circumstances of the case, that the seamen were entitled to be paid their wages up to the time of their discharge, together with the expense incurred by them in returning to the port of departure.—[Ed.</p> <p>The Lioness, 3 Eed. Rep. 922.</p>

<p>1. Mobtgagob and Mobtgagbe—Possession—Fraud.</p> <p>The sale of an equity of redemption will be closely scrutinized, when such equity has been purchased by the mortgagee.</p> <p>2. Same—Pbatjd.</p> <p>In such case, constructive fraud, or an unconscionable advantage, will be sufficient to avoid the sale.</p> <p>3. Same—Hes Adjudicaba.</p> <p>The judgment of a court, in a suit to foreclose a mortgage, is not res adjudicate as to any matter which the defendant was not entitled, as a matter of right, to have litigated in such suit.—[Ed.</p>

<p>Demurrer to complaint.</p>

<p>1. Olebk oe Coubt—Seabching Recobds—Pees.</p> <p>A clerk of a federal court is entitled to a fee of 15 cents for filing a requisition for a search for judgments, etc.</p> <p>2. Same—Same—Same.</p> <p>He is also entitled to a fee of 15 cents for eacli person against •whom such search is made.</p> <p>3. Same—Same—Same.</p> <p>He is also entitled to a fee of 15 cents per folio for the certificate of such search.</p> <p>4. Same—Same—Same.</p> <p>lie cannot make any charge Cor affixing the seal of the court to such certificate, unless required to so affix the seal.</p> <p>5. Same—Piling Requisition.</p> <p>He is authorized to file the requisition for his own protection, and cannot be required to return the same to the party delivering it, with the requested certificate thereto attached.—[Ed.</p>

Upon petition of John Bi’akeman and John B. Stadler for the informer’s share of a fine of $2,000 imposed uj)on Simons and Burnstine. So far as Brakeman is concerned, the facts were that during the fall of 1880 he was employed hy General Spaulding, special agent of the treasury department, to ferret out certain supposed rag-smuggling operations along St. Clair river.

Motion to Quash. The indictment alleges that the defendants— “ Did conspire, combine, confederate, and agree together, between and among themselves, to plunder certain goods and merchandise, a more particular description of which said goods and merchandise being to the grand jurors aforesaid unknown, then and there belonging to the steam-boat City of Vicksburg, the said steam-boat being then and there wrecked and in distress on the waters of the Mississippi river, within the…

<p>1. Trade-Mark—Injunction.</p> <p>A label, which had been in use in substantially the same form for a dozen or more years prior to suit brought, consisted of a blue wrapper, pasted around a small bottle holding bluing, and contained, in separate compartments, various inscriptions in letters of silver bronze. The first compartment contained the general designation of the article, in the words, “ Sawyer’s Crystal Blue and Safety Box.” The other compartments contained, in finer print, commendations of the quality of the article, directions for its use, and the name of the party by whom it was prepared. Held, under the special circumstances of the case, that the use of a label of the same size, color, and type, and of the same general appearance, with corresponding compartments, and similar, although not identical, designations, should be enjoined.—I Ed.</p>

<p>3. Re-Issued Letters Patent No. 7,704—Improvement in Bedstead Prames.</p> <p>In re-issued loiters patent No. 7,701, granted to tlie complainant for an improvement in bedstead frames, held, tliat tlie first claim, wlien considered in connection with tlio specifications, must be construed to mean a combination of side bars, inclined double end bars, and elastic coiled wire fabric attached only to the end bars, with the end bars of the frame elevated above the sido bars, so that tlie fabric will be suspended above the side bars, from end to end, of the frame; and that the second claim, in its reference to end bars, must be construed to mean inclined double end bars.</p> <p>As the end bars of defendants’ bed bottom are not inclined; and in view of the further fact, to be considered in the same connection, that the end bars are not elevated above the side bars so as not to come in contact with them, but rest directly upon the side bars, and that the angle irons of the defendant’s frame are not adjusted to hold the end bars above the side bars free from contact; and in view of the limitations to be necessarily placed on the complainant’s patent because of the state of the art,—hdd, that the defendants do not infringe.</p>

<p>1. Construction of State Statute.</p> <p>It does not appear that tlie Mew York court of appeals have decided (39 M. Y.19 ; 43M. Y.554; 59 N. Y. §54; or 71N. Y. 413) that so much of the act of April 24,1862, as gives a material man a lien upon a vessel for supplies furnished in her home port is void because in conflict with the grant of admiralty jurisdiction to the United States; and if it did, this court is not bound to follow it, because the question as to its validity arises under the constitution of the United States,, and not the state, and is therefore a federal one.</p> <p>2. Lien of Material Man and Mortgagee.</p> <p>When the local law gives a lien for supplies furnished to a vessel in her home port, and provides that such lien shall be preferred to that of a mortgagee, a court of admiralty will enforce it accordingly : and such lien will be so enforced by a court of admiralty when the local law is silent on the subject, upon the grounds : (1) That the lien of a maritime contract, whether it arises under the local law or the maritime law, is practically a maritime lien, and entitled to rank accordingly and be preferred to that of a mortgage ; (2) that a mortgagor in possession is the agent of the mortgagee in obtaining supplies for the vessel, and tile lien given therefor binds the interest of the latter as well as the former.</p> <p>3. Registration on Mortgage.</p> <p>Section 4192 of the Revised Statutes, providing for the registration of mortgages of vessels, does not change the nature or operation of the lien of such mortgage, but only provides that without such registration it shall not be valid; and therefore a state law preferring the lien of a domestic material man to that of a mortgage is not in conflict with such section.</p>

In Equity. This is a suit to foreclose a mortgage. The only defence usury.

<p>1. Property in Transit—Taxation.</p> <p>One state cannot levy a tax upon property in commercial transit to another state or country.</p> <p>2. Same.</p> <p>A cargo of com purchased in Iowa for the purpose of shipment to Canada was removed to the railway and temporarily stored in cribs to await transportation. Held, while so stored for a reasonable time, to be in transit and exempt from taxation, provided the purchaser intended to ship immediately, or as soon as transportation could be conveniently obtained.</p>

<p>a. General Solicitors—Institution of Suit—Authority.</p> <p>The general solicitor of the plaintiff corporation, being an officer unknown to the articles of incorporation and the by-laws, has no authority to institute and prosecute suits without the sanction of the board of directors, and such sanction not appearing in this case, the suit was dismissed on motion.</p>

<p>In Equity. Motion to remand.</p>

<p>X. Judgmknts—Hotiots—Cot® ov Gf.otjgia, § 267.</p> <p>The object of the book of completo record, which the clerk of each superior court in Georgia is required to keep by paragraph 6, § 267, of the Code of Georgia, for “the record of all the proceedings in all civil cases, within six months after the final determination thereof,” is not to give notice of liens by judgment. The failure of the clerk to keep such book, or to record a judgment therein, does not affect the constructive notice conveyed by a judgment regularly entered, as required by law, on the declaration in the case, where the execution issued thereon is regularly docketed for the full amount of the judgment in the execution docket, which is the hook kept and used in Georgia for the ascertainment of judgment liens.</p> <p>2. Judgment—Amendment—Mortgage.</p> <p>Where a verdict was taken at the November term, 1866, of the superior court, for $11,212 principal, “ with interest from April 14,1860,” and at the same term a judgment entered thereon for $11,212 principal, and “for-dollars and-cents for interest to-,” and where the execution docket showed the amount both of principal and interest due on such judgment, and where a nunc pro tunc judgment for the interest was afterwards rendered at the April term, 1871, of the court, held, that such judgment for interest had a valid lien from the date of the original judgment, and was superior to the lien of a mortgage taken in 1868 (beteen the dates of the original and amended judgment) by a creditor to secure an antecedent debt.</p> <p>3. Equitable Election—Judgment—Mortgage. '</p> <p>The doctrine of compelling a creditor who has a lien on two funds to resort to that on which another creditor has no lien, is only applicable where the two funds are equally accessible to the creditor having the lien on both. Therefore, a judgment creditor who has a lien on a fund in court arising from the sale of certain real estate of the debtor, a bankrupt, which has been sold by a committee of creditors of the bankrupt’s estate for one-third cash, one-third due in one year from date of sale, and one-third due in two years from that date, will not be decreed to await the collection of these notes, but is entitled to a fund already in court, arising from the sale of land on which another creditor had a mortgage lien, although the mortgage has no lien except upon that fund.</p>

<p>1. J'raudulent Saies—Rev. St. §§ 5129,5130.</p> <p>Sales amounting to $1,100, $1,900, and $2,200, made in one week to three persons by a retail dealer who owed $11,000, and whose stock consisted of merchandise worth $8,000, and whose sales, in the usual course-of his business, amounted to $1,100 per month, are prima facie fraudulent, under sections 5129, 5130, of the Revised Statutes.</p> <p>2. Same—Yendees.</p> <p>Where the vendees were familiar with the nature of the bankrupt’s business, and where such purchases were not ip the ordinary course of the business of the vendees, as well as in that of the vendor, the assignee in bankruptcy of the latter may recover from them the value of the goods, unless they can show that at the time of the transactions they made inquiry and satisfied themselves that the vendor was selling for a legal purpose.</p> <p>3. Same—Same.</p> <p>In such a case, the mere statements of tlie vendees that they did not knowr that the vendor intended any fraud on the bankrupt act amount to nothing. The law declares that they did know; that the fact of the vendor making the sales out of the usual course of his business conveyed knowledge to them prima fade, of an illegal purpose ; and it is for them to show that by inquiry and investigation they became reasonably satisfied that the sales were properly and legally made.</p>

<p>1. Removal.</p> <p>Where A., B. and O. on the one side, and D. on the other, are necessary parties to the claim of D. on the fund in controversy, the case is not removable if A. and D. are citizens of the same state, although the other two parties are citizens of another state.</p>

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

<p>1. Patents Nos, 58,294 and 85,903.</p> <p>Patents Nos. 58,294 and 85,963, granted to George W. Richardson for improvements in safety-valves for steam-boilers, held, not infringed by valves constructed under patents Nos. 159,157and 160,167, granted to George H. Crosby.</p> <p>2. Same—Infein&ejusnt.</p> <p>Safety-valves containing the principles of additional area for the pressure of steam, and a stricture causing it to act by its expansive force, not being original with Richardson, he could not, whatever the words of his claim, enjoin the use of valves resembling his own only in its adoption of these ideas.</p> <p>3. Same—Same—Claim—Construction.</p> <p>If the defendant has taken the complainant’s invention, the court will endeavor to construe the claim to conform with that fact.</p> <p>Complainant’s device, consisting of an annulur chamber outside the ground joint of the valve so regulated by the opening as to “ huddle ’ ’ the steam when it begins to escape, assist it to open more widely, and notinterfere with its rapid fall before the loss of too much steam, held, in the state of the art, not infringed by defendant’s device, composed of a primary and supplemental valve, both within the shell, the latter (which furnishes an additional area for the action of the steam when the valve is in operation) resting on a chamber closed at the bottom, with outlets to the exterior of the shell, the size of which openings may be so adjusted by a sleeve on the siioll’s exterior as to cause the escaping steam to exert more or less differential pressure on the supplemental valve.</p>

<p>1. Re-Issue JSTo. 6,609—Harvesting Machine—Validity.</p> <p>lie-issued letters patent A'o. 6,609, granted Samuel W. Tyler, August 24, 1875, lor improvements in .harvesting machines, held, ■oalid as to the third and fourth claims.</p> <p>2. Patent—Infringement—Anticipation—Ft kst Inventor.</p> <p>In a suit, for infringement the jiatent act allows as a defence anticipation by other letters patent, or by a printed publication; and when the former is pleaded the complainant may show, if ho can, that the dale of the actual invention was older than the date of the contesting patent ; but no emphasis is laid upon the inquiry into the time when the inventor of the alleged prior patent made his invention.</p> <p>3. S a m f,—Long- Unquestioned Valí dity—Extensi on —Re-Issue—Va - L1DITY.</p> <p>The long-unquestioned validity of a patent, its extension, and re-issue, all make a strong prima facie case for sustaining such patent.</p> <p>4. Same—Utility.,</p> <p>The incorporation by the defendant, in his machine of the complainant’s invention is an evidence of utility.</p> <p>5. Same—Infringement—Modified Application no Defence.</p> <p>The defendant cannot relieve himself from the charge of infringement by directly and not mediately attaching- complainant’s invention to his machine.</p> <p>Complainant’s invention, consisting of a rigid support or frame, cast or formed in one piece, attached to the axle of a harvesting machine upon which the gearing and shafts which communicate motion from the main gear-wheels, or driving wheels and axle, to the cutter, are borne, and bearing upon a rectangular wooden frame acting as a medium, of support between such frame and the axle, held, infringed by a device in which the rectangular frame is dispensed with, and such support directly attached to the axle.</p>

<p>1. Personal Injury—Unloading Oargo— Privity op Contract — Negligence.</p> <p>Where a stevedore, having contracted with the steam-ship R. to discharge her cargo of Spiegel iron, with the use of her derrick and chain, employed the libellant to assist in unloading, and the latter, while so engaged in the lower hold, was severely injured by the falling of a loaded tub, with part of the chain which had parted, the break being duo to a defective link,—</p> <p>Held, that the allegation in the answer that the libellant and stevedore were eo-servants of the respondent, being obviously a mistake, and there being no privity between the libellant and the respondent, the plaintiff cannot recover for a breach of contract; that in such a case it would seem the employer can only he held liable if the defect in the article that caused the injury was of an imminently dangerous nature; that even if the degree of negligence sufficient to make the respondent liable as employer were enough, still the plaintiff cannot recover,—the evidence showing that the defective chain was examined with ordinary care before being used, was apparently strong enough for the purpose intended, and that the defect was neither known to nor discoverable by the respondent by the exercise of such care.</p>

In Equity. This was a hill in equity by the assignee of the Detroit Novelty Works to compel the payment of the balance due upon certain unpaid subscriptions to the capital stock of the company. The material facts were that the company was organized in 1859, with a capital stock of $50,000, divided into 2,000 shares of $25 each.

In Equity. On demurre rs to cross-bill of Farmers’ Loan & Trust Company, praying a foreclosure of its mortgage. I. The Kentucky & Great East ern Railway Company had no right or title to the franchise or property of the Maysville & Big Sandy Railway Company to pledge to Farmers’ I can & Trust Company. II.

<p>1. Insurance—Loan—Usury.</p> <p>Where a contract for the loan of money and an agreement for insurance upon the life of the borrower are blended together in one and the same transaction, and the proof shows that the policy of insurance was taken and the premium paid in advance in consideration of the loan, the transaction is usurious if the sum so paid as premium is greater than the interest allowed by law.</p>

<p>Motion for Judgment.</p>

<p>1. SlIRETrES IX AX UNDERTAKING EOR AN ATTACHMENT— LtABIIJTY OE.</p> <p>The sureties in an undertaking for an attachment under the Oregon Civil Codo, § 144, in case the plaintiff fails to obtain judgment in the action, arc liable to the defendant for all the costs and disbursements that may be adjudged to him, whether the latter are made in the action or upon the attachment.</p>

<p>1. Equity Pb actice—Rule 34.</p> <p>Rule 34 of the rules ef practice prescribed by the supreme court for the courts of equity of the United States, requires that on overruling a plea the defendant shall be allowed to answer; that léave must be given to it.</p>

<p>1. Patent No. 66,130—Blanks for Carriage-Thill Shackles—InFBINGBMENT.</p> <p>Letters patent No. 66,130, granted James B. Clark, June 25, 1867, for improvement in blanks for, carriage-thill shackles, held, not infringed, by devices manufactured under letters patent No. 106,225, granted August 9, 1870, to Willis B. Smith, for dies for forging carriage shackle blanks.</p> <p>Complainant’s invention; consisting of blanks for carr'ar.e-'.liill shackles and dies for making same, whereby the shackle is primar.-ly formed with a curve on its central body portion, so that the subsequent straightening of the central pos tion and finishing of the blank forces the surplus metal to the corners to fill up the deficiency in them and make them sharply-defined right angles, held, not infringed, by defendant’s device, in which the body of the blank is primarily pressed into an angular shape, with its arms extending by sharply-defined obtuse angles, whereby the subsequent straightening and finishing the blank but forces the angles further apart, and pushes any surplus metal caused by changing the obtuse into right angles at the corners towards its center.</p>

<p>1. Rf.-Issue Wo. 978—Impbovements in Wateb-Closets—Validity— Inekingeiient.</p> <p>Re-issued letters patent Wo. 978, granted William S. Carr, June 12, I860, and extended seven years from August 6, 1870, for improvements in water-closets, held valid as to Us third claim, and infringed as to sucli claim.</p> <p>2. Patent Wo. 21,734 — Jmpboved Watee-Oloset — Validity — InEBINGEMENT.</p> <p>Letters patent Wo. 21,734, granted Frederick H. Bartholomew, October 12, 1858, and extended for seven years from October 12, 1872, for an improved water-closet, held valid as to its first claim, and infringed as to such claim.</p>

<p>1. Repairing Yessel—Hypotiieca :ing Cargo—Notice to Owner of Cargo—Salvage—Collusion.</p> <p>Where a master and owner of a canal-boat verbally agreed with tlie libellant to pump her out and repair her leaks, having run her aground to avoid sinking, betwe' ;n Fourth and Fifth streets, Hoboken, where she lay within the line of the ends of the piers on a muddy bottom, and where she could remain safely two or three days without further damage, and out of the track of other vessels, the cargo consisting of iron, not likely to be injure;.; and neither of them consulted the shipper or consignee, although he master had two days before contracted with the shipper in New York to deliver the cargo at the Delaware, Lackawanna & Western Railroad dock in Hoboken, and had already reported his arrival to tie consignee; and the libellant, after partially completing the work and moving the boat to the Blysian Fields, demanded payment of the shipper in New York, but was refused, the underwriters claim’ng that the master acted without authority; and the libellant the a finished the work of caulking and patching her up, and after proci ring from the master a written agreement for the services, dated back to the day of his employment, and a written protest before a notar/, also antedated, charging the leaking to improper .loading, filed his libel against both vessel and cargo, hut voluntarily released the former before decree, and the boat was afterwards discharged and took other employment without undergoing repairs :</p> <p>Held, that tho rule which requires the master to communicate with the owners of the cargo, if practicable, before hypothecating or contracting for a lien upon it for extraordinary expenses necessary to enable him to continue the voyage, (The Julia Blake, 16 Blatchf. 472,) applies to a service of this character; that the necessity for such services, which in each case.is governed by the peculiar circumslanees attending it, was not so pressing or immediate as to preclude the master in this case from consulting the shipper before employing the libellant; and that the latter, who presumably could have learned on inquiry who and where the shipper or owner was, having failed to make such inquiry, is hound by ihe facts as they were and cannot recover.</p> <p>Whether tho services in this case can properly he regarded as salvage, query.</p> <p>Held,fwrther,iha,i as a salvage claim the libellant’s demand, which was for 96 hours’ services, was grossly exaggerated, as the boat could have been pumped out and made tight in a few hours, and that the circumstances of the case tend to show collusion between tiie libellant and the owner of the boat prejudicial to the interests of tho owner oí ihe cargo, and entitle the libellant’s claim against the latter to no consideration whatever in a court of admiralty, and on this ground tho libel should be dismissed, with costs</p>

<p>1. Public Offiobb—Contkaot—Liability.</p> <p>Suit being brought against the members of the board of supervisors of Marion county for a reward publicly offeredby order of the board of supervisors. H. D. Lucas, chairman,”—held:</p> <p>(1) That the offer clearly appeared to have been made by the defendants in their official capacity, and not as individuals.</p> <p>(2) That their authority to make contract being a matter of law, plaintiffs had notice of their want of authority, and could not therefore hold the defendants personally liable. *</p>

<p>1. Negotiable .Paper—Holders—Subrogation—Indorsers— Chatted Mortgage—Insolvency.</p> <p>Where the makers and indorsers oí negotiable paper are insolvent, the holders thereof may, upon the principle of subrogation, avail themselves of the rights of such indorsers arising under a chattel mortgage given them hy the makers to secure them against loss because of their liability as indorsers.</p> <p>2. Chatted Mortgage of After-Acquired Property—Mortgagees —General Creditors.</p> <p>In equity the right of mortgagees in after-acquired property under a chattel mortgage covering such property, as well as stock in hand, is superior to that of general creditors of the insolvent mortgagors.</p> <p>3. Same—Neglecting to Becokd Before the Insolvency of the Mortgagors.</p> <p>This right is not defeated hy the neglect of the mortgagees to record their morí gage before the mortgagors became insolvent.</p>

<p>1. Procurino Seamen—Employment—Section 4009, Rev. St.—Construction.</p> <p>Section 4009, Rev. St., providing a penalty for receiving any greater remuneration than authorized by law for procuring seamen employment, is not applicable to seamen for whom employment is procured upon a foreign vessel.</p> <p>Same—Section 4610, Rev. St.—Construction.</p> <p>Section 4610, Rev. St., relative to the procedure for enforcing- the penalties authorized by the preceding section, was designed to permit a civil action for the penalties with quasi criminal procedure in enforcing the judgment, and an action thereon is properly brought in the name of the United States as the party plaintiff</p>

<p>1. Marine Policy—“Atlantic Coast”—Construction.</p> <p>A marine policy of insurance was issued on a vessel “to be employed Id tlio coasting trade on tlie United States Atlantic coast; permitted to use gulf ports not west of New Orleans,” in which the assured warranted not, to use ports and places in Texas, except Galveston, nor foreign ports and places in the Gulf of Mexico. The vessel was lost in the Gulf of Mexico, west of Now Orleans, while on a voyage from Maine to Morgan City, Louisiana, a place west of Now Orleans. Held:</p> <p>(1) That the meaning of the policy was that the vessel was to be employed on the United States Atlantic coast, which was the coast of the Atlantic ocean, and not the Gulf of Mexico.</p> <p>(2) That the permission to use gulf ports not west of New Orleans, did not extend the coasting trade through the gulf, and the vessel was, therefore, upon a voyage not permitted by the terms of the policy, and the assured could not recover.</p>

<p>3 Judgment—Mistake.</p> <p>Tlie court has power to open a judgment rendered upon default for tlie purpose of correcting errors of fact in the amount of t3ie judgment arising from tlie inadvertent omission of the plaintiff to give credits and allow payments made by the defendant, or out of his property, upon the plaintiff’s claim, which should have been deducted at the time of the assessment of damages.</p>

<p>1. Action—Beal Party—Judgment.</p> <p>Extrinsic evidence is admissible to prove that a real party in a suit was not a party to the record, but that he prosecuted or defended the suit in the name ol a nominal party; and, when so shown, the real party is concluded by the judgment as effectually as if he had been a party to the record.</p> <p>2. Cask Stated.</p> <p>X. by fraud induced the plaintiffs to sell him certain goods on time. Plaintiffs afterwards brought an action of replevin against A., B., and C., then in possession of the goods, and in that action judgment was rendered against the plaintiffs. Plaintiffs brought this suit against the defendants to recover the value of the goods. Held, that the judgment in the replevin suit was conclusive against the plaintiffs, it being shown that A., B., and 0. were the agents of the defendants, who had appeared and defended the suit in their name.</p>

<p>On Specifications against Discharge.</p>

<p>1. Receiver—Suit— Contempt.</p> <p>A. was appointed receiver of the estate and effects of an adjudged bankrupt, and directed, by order of court, to take possession and retain the custody of certain properly which B. had purchased at an alleged fraudulent sheriff’s sale of the bankrupt’s property. A. took possession of certain property of B. which never was the property of the bankrupt, and B. brought two suits in the state court,—one in trespass against A. for acts done in the seizure of his property, and still pending; and the other in replevin against 0., the custodian of the property for the receiver, to recover possession, in which 0. appeared and pleaded, and judgment was obtained against him. Upon proceedings to punish B. for contempt, held :</p> <p>(1) That 0. having submitter: to the jurisdiction of the state tribunal, it was too late to complain that the action in replevin was in contempt of the authority of the court.</p> <p>(2) That A. was sued in trespass not as receiver, but as an individual, for taking and retaining possession of certain goods not included in the order of the court, and rs such was a mere trespasser, and not entitled to the protection of the court.</p>

<p>1. Patent No. 119,705—Cusfidoks—Anticipation—'Validity.</p> <p>Letters patent No. 119,705, granted October 10, 1871, to E. A. Heath, for improved metallic cuspidor, held, anticipated by letters patent No. 106,094, granted August 2, 1870, to William H. Topham, for improved spittoons, and therefore invalid.</p>

<p>1. Patent No. 119,705— Ouspidorí — Motion for Preliminary Injunction—Anticipation—Validh r.</p> <p>Letters patent No. 119,705, granted October 10,1871, to Eugene A. Heatli, for improvement in cuspidors, on a motion for preliminary injunction, held, not anticipated by letters patent No. 106,194, granted August 2, 1870, to 'William B, Topham, for improvement in spittoons ; also, held valid and motion granted.</p> <p>2. Same—Same—Anticipation—Infringement.</p> <p>Heath’s invention, consisting of a metallic cuspidor, in form essentially a spheroidal body, with conical mouth flaring outwards, formed of three metallic parts, the lower being heavier, and the middle and upper being lighter, than in then-existing devices, the lower part extending up to the longest diameter of the spheroid, the middle-part of a dome shape and joined to the upper and lower parts, the upper part being an inverted cone forming a mouth, the whole not being liable to fracture, and having the capacity of returning to an upright position of itself, from a position not upright, when left free, held, not anticipated by Topham’s invention, consisting of a papier mache spittoon with a v-eight incorporated between the upper and lower layers of the bottom portion, tending to retain the vessel in its proper position when foi ce is applied to tilt or upset it; and' infringed by defendant’s cuspidors, constructed of three metallic-parts of substantially the same shape as Heath’s, with similar joints, but whose lower part is a compound piece, a partition being intro-' dueed a little above the bottom, and parallel therewith, so as to form a chamber over the whole extent of the bottom, the chamber being filled with heavy material, such as iron filings, to serve as a weight.</p> <p>3. Re-Issue—Effect Only on Subsequent Causf.s of Action.</p> <p>A re-issued patent has the same effect and operation in law as though it had been originally filed in the corrected form, only on the trial of actions brought on it for causes thereafter arising, and has no such effect in any other case or for any other purpose.</p>

<p>1. Patent No. 119,705—Cubpidobs—Validity—Inpbinghment.</p> <p>Letters patent No. 119,705, granted October 10,1871, to Eugene A. Heath, for a metallic cuspidor in form essentially a spheroidal body, with conical mouth flaring outwards, formed of three metallic parts, the lower being heavier, and the middle and upper being lighter, than in then-existing devices, the lower part, extending up to the longest diameter of the spheriod, the middle part of a dome shape, and joined to the upper and lower parts, the upper part being an inverted cone, forming a mouth, the whole not being liable to fracture, and having the capacity of returning to an upright position of itself, from a position not upright, when left free, held valid and infringed.</p> <p>2. Patent—Assignment—Lega g Title.</p> <p>Tlie assignment of the interest in an invention prior to the issue of a patent therefor, vests in the assignee the legal title to the property created thereby, upon recording the assignment thereof in the patent office, even though the patent may be issued to the patentee or assignor.</p>

<p>1. Libel in Personam—Pasties .</p> <p>Repairs were put upon a domestic vessel by a firm of slrip-builders, of which one of the part owners was a member.</p> <p>Libel in p&i'sofficm was instituted by the firm against all the part owners to obtain a decree agamst them in solido for the repairs.</p> <p>Held, that such a libel in personam, in which the same person is one of the libellants and also one of the respondents, could not be maintained.</p>

<p>1. Conveyance—Insufficiently Stamped—Effect of.</p> <p>Section 152 of the internal revenue act of June 30,1864, (13 St. 292,) as amended by act of July 13, 1866, (14 St. 141,) while it avoids the record of a deed not duly stamped, or upon which the stamp is not cancelled, docs not affect the validity of the original. Section 156 of said act (13 St. 293) imposes a penalty upon the vendor for not cancelling a stamp put upon his conveyance, but does not affect the validity of the conveyance itself. Section 158 of said act, (13 St. 293,) as amended by the act of July 13,1866, (14 St. 142,) imposes a penalty upon the maker for not duly stamping his conveyance, or omitting to cancel a stamp thereon, and declares the same void if either.omission was made “ with intent ” to defraud the government; but whoever seeks to set aside or avoid a conveyance on that ground, must allege and prove such fraudulent intent.</p> <p>2 Omission to Stamp Conveyance.</p> <p>An allegation that a conveyance was made and stamped for less than the actual consideration, with intent to aid or give color to a former fraudulent conveyance of the same premises to the grantor, or that such conveyance was made and stamped for an “ inadequate ” consideration, does not show that such conveyance was not duly stamped with intent to evade the stamp act.</p> <p>3. Conveyance to Defraud Creditors.</p> <p>A purchaser from the grantee in a conveyance to defraud creditors, without notice of the fraud, is, nevertheless, liable to any of such creditors for any portion of the purchase money remaining unpaid after notice of the fraud, and a court of equity will give suen a creditor a lien upon the premises for that amount.</p>

<p>1. Federal Court—Comity or, Towards State Court—When to be Taken Advantage or.</p> <p>To take advantage of tlxe comity whiclx, when certain facts exist, a federal court will exercise towards a stale court with concurrent jurisdiction, the point must bo reasonably urged. After a trial of the action on its merits it is too late.</p> <p>2. Same—Same—Same.</p> <p>An action of replevin was brought in a fedei’al court, against the defendants therein, for the recovery of certain personal property. Among the pleas interposed was one reading substantially as follows: That the defendant Perkins levied upon the property as that of one Lee, by virtue of a writ of attachment issued out of the circuit court of Hock Island county, in the state of Illinois, in a suit, wherein Lee was a defendant, and the Topeka National Bank, of Topeka, Kansas, was plaintiff, directed to the sheriff of that county, i. e., the defendant Perkins, to execute. .The jury found the issue joined upon this plea for the plaintiff. The defendants then moved to dismiss the same for want of jurisdiction after verdict and before judgment.</p> <p>Held, that in this case the court could have taken jurisdiction of the parties, as the citizenship was such as to give it such jurisdiction of them, and it would only refrain from taking jurisdiction of the subject-matter by reason of comity towards another court of concurrent jurisdiction.</p> <p>Held, further, that neither of the parties to assert the right of the state court to keep possession of the property disputed the jurisdiction of this court until after the trial on the merits. Then it was too late to raise the points.</p>

<p>1. Municipal Bonds—Authority—Ratification.</p> <p>, Whether the commissioners of the defendant complied with the statutory requirements in issuing its bonds or not, the defendant ratified their act by paying int erest for six or seven years upon the bonds, and retaining the stocl. of the railroad company received in exchange for the bonds.</p> <p>2. Same—Same—Recitals—Bona Fide JPurchaseií.</p> <p>"Whether the recital of the bonds, that they were issued “ by virtue of an act of the legislature of New York, entitled,” etc., warranted a purchaser in assuming without examination that the agents of the defendant had complied with the statutory requirements in issuing the bonds, query.</p>

<p>1. Fraud — Upon Whom is the- Burden of Showing — Creditor’s Claim Duly Proven.</p> <p>Tlie burden of showing that a creditor’s claim, duly proven according to the provisions of the bankrupt act, is founded in mistake or fraud, lies upon the assignee or the creditor attacking the proof. After such proof the claim is, prima fade, good.</p> <p>2. Register—Decision of, Reversed.</p> <p>A register’s decision in favor of a whole claim as proved will he reversed when the evidence is undoubted that one item of the claim had been paid in full.</p>

<p>1. Re-Issues Nos. 6,902, 6,913, a: id 6,976—Barbed-Wire Fences—'Validity—Motion for Reheai sing.</p> <p>Upon a motion for a reheai ing, on the ground that the re-issued letters patent Nos. 6,902, 6,913, and 6,976, for improvements in barbed-wire fences, in suit, are invalid, not being for the same inventions as their respective originals, such re-issnes held valid, and motion overruled.</p> <p>2. Patent No. 67,117—Re-Issue- No. 6,976 —Construction—Limitation.</p> <p>Original letters patent No. 67,117, granted July 23,1867, to William D. Hunt, claiming the method of “ providing the wires of a wire fence with a series of spur wheels,” the claim in the re-issue thereof, • No. 6,976, dated March 7,1876, to Charles Kennedy, assignee, for “a fence-wire provided with spu-rs," cannot be enlarged to include every kind of barb that may be attached to fence wire, but is limited to the fence wire and spurs described in the original patent.</p> <p>3. Same—Spur-Wheel Barbs—Bunt’s Device.</p> <p>Hunt’s invention consists o : spur-wheels having sharpened spurs with holes in their centers to permit the fence wire to pass through them, and fitting the wire locsely to revolve upon it, or kept in their places at suitable distances apart by flanges.</p> <p>4. Re -Issue No. 6,902—Patent No. 74,369—Validity.</p> <p>Re-issued letters patent No. 6,902, granted Michael Kelly, February 8,1876, which claims two methods of keeping the barbs or thorns of a wire fence rigid upon the wire, viz.: (1) By lateral compression after the barbs are strung upon the wire; and (2) by laying another wire of the same or different, size along-side the thorn wire and twisting the two together,—held valid, though the first only was claimed irt the original patent, No. 74,369, granted February 11,1868, to Michael Kelly, the latter method, however, being shown in its drawings.</p> <p>5. Same—Diamond-Shaped Barbs—Kelly’s Device.</p> <p>Kelly’s invention consists of diamond-shaped barbs or thorns cut out of metal, and strung on fence wire at a certain distance from each other, and kept rigid upon the wire by lateral compression, or by twisting a single wire with one containing the barbs or thorns upon it.</p> <p>6. Re-Issue No. 6,913—Coiled-Wire Barbs—Glidden’s Device.</p> <p>The invention secured by re-issued letters patent No. 6,913, granted February 8, 1876, to Joseph F. Glidden, in suit, consists of a fence ■wire having a barb formed of a short piece of pointed wire secured in place upon the wire by coiling between its ends, forming two projecting points.</p>

<p>1. Patent No. 47,135—Re-Issues No. 8,106 and 8,123—Pocket-Book Clasps—Motion for Preliminary Injunction—"Validity.</p> <p>Upon a motion for a preliminary injunction, letters patent No. 47,135, granted April 4, '865, to Charles Sea ver; re-issued letters patent No. 8,106, granted February 26, 1878, to Zinn and Messer; and re-issued letters patent No. 8,123, granted March 12, 1878, to Zinn and Messer,—all for improvements in pocket-book clasps,— held valid.</p> <p>2. Patent—Combination—M. lOhine—New Use—Infringement.</p> <p>A patent may secure a combination or machine without regard to the purposes for which it is intended, and will be infringed by the employment of such device for a purpose not mentioned in the patent.</p> <p>Thus a patent for an improved clotlies-fastening attachment or clasp, will be infringed by a device substantially similar to it, used on a pocket-book, though the use of such fastener upon pocket-books was not mentioned or claimed in the patent.</p> <p>3. Patent No. 47,135 — Cloti es Fastener—Corset Fastener—Anticipation.</p> <p>Letters patent No. 47,18j, for an improved clothes fastener, consisting of a metallic plate, provided with a projecting stud applied to the under lap of the artich to be fastened, and a hinged button or cap to shut down on .the top of the stud, and enclose the upper lap of the article, when it is slipped over the stud by a recess in it, held, not anticipated by a corset fastening in which the plate and cap are not hinged together, but are attached one to either side of the corset, and operate by slipping an'eyelet placed in the cap over a stud placed in the plate.</p> <p>4. Re-Issues No. 8,106 and 8,(23—Pocket-Book Clasps—Kohlman Clasp—Anticipation—Inf rengement.</p> <p>Re-issued letters patent No. 8,106, for an improved pocket-book clasp, consisting of a base rílate with a stud attached thereto, over which an eyelet in the lap to be clasped passes, a cap whose tailpiece presses against a spring attached to the base plate and engages with it by arms working in jlanges in the base plate, holding the cap and stud in connection, and permitting the cap to move back and allow the eyelet to be withdrawn; and re-issued letters patent No. 8,123¡ for an improved pocket-book clasp, consisting of a base plate and cap hinged upon a slot t herein, with its tail-piece pressing upon the free end of a spring att'a-ihed thereto, holding the cap and baso in connection, and permitting the cap to swing back and forth, so as to clasp, between it anc! the base, the lap desired to be held thereby,—held, not emtioiputt d by the Kohlman clasp, having a base plate and box extending over a large part thereof, a cap extending over the balance and hinged to the front edge of the box by means of two ears on the cap, on which the cap swings, the inner end of the cap having a tail-piece pressing against the free end of a spring attached to the base plate, which also has a stud, over which an eyelet in the lap to be clasped slips, and whereon the cap rests when shut; and infringed by a clasp constructed with a base plate, a spring, and a cap bearing thereon, with the whole of its rear portion bent down to form the tail-piece.</p>

<p>I. Re-Issue No. 6,964—Improvement in Pumps—Motion to Re-Opeít Cause—Newly-Discovered Defence.</p> <p>Before a motion to re-open a cause, and admit a newly-discovered defence, after a final hearing, will he granted, it must be clear that such defence, if it had been made at the final hearing, would have-been effectual.</p> <p>Buerk v. hnhauser, 10 O. D, 907.</p> <p>Be Florez v. Reynolds, 16 BJatchf. 408</p> <p>The pumping device described in English letters patent No. 11,473, granted Thomas Craddock, December 3, 1846, for improvements in steam-engines, boilers, and machinery connected therewith, held, not sufficiently similar to complainant’s or defendant’s devices to warrant, the court to re-open the causo.</p>

<p>1. Re-Issue No. 8,475—Horse Hay Rakes—Anticipation—Validity.</p> <p>Re-issued letters patent No. 8,475, grantee November 5,1878, to William H. Field, for horse hay rakes, held, anticipated by letters patent No. 7,813, granted Henry W. Sabin, December 3, 1850, for improvement in horse rakes, and therefore invalid.</p> <p>2. Original Patent—Specific Construction—Re-Issue—Broad General Claim—Construction.</p> <p>Where the original patent claimed a specific construction of rake head, in combination with other devices, in a horse hay rake, and it is clear that the office of the re-issue is to secure the broad claim to the use of a rake head generally, the patentee will be held to such claim, even though the result may be that the real invention will not be secured. .</p> <p>Upon such a construction of the re-issue, complainant’s device being a horse hay rake, with its axle continuously rotated by gear wheels, a rocking head mounted on it, a lifting ratchet wheel attached to and revolving with it and arranged to engage with a pawl on the rake head to dump the load, and a stop to release the head from the ratchet and reset the teeth, held, anticipated by a device in which the teeth are mounted separately upon a continuously revolving axle by eye bearings, which abut against each other and are raised simultaneously by means of a transverse bar bearing upon one end of the teeth.</p>

In Admiralty. Libel for wharfage. The facts are as follows: The steamship Whitburn sailed from Philadelphia, April 1, 1881, but being injured by floating ice put back to Philadelphia, leaking. She endeavored to enter the dock of pier 41, and in so doing made fast for a short time a line to pier 40.

Libel to recover damages for injuries suffered by libellant through an accident to the tackle of respondents’ vessel. The facts were as follows: During a voyage of the steam-ship Nederland, while the ship’s crew were in the act of setting the fore try-sail, the shoulder of the swivel hook of the lower block, attached to an eyebolt in the deck, drew out from the iron strap surrounding the block, and caused the boom to fall to the deck.