Volume 76 — Federal Reporter

<p>1. Petition fojb Removal — Tmn of Finura.</p> <p>A motion by defendant for (be dissolution of an injunction is not a plea or answer, within the meaning of Supp. Rev. St. p. (51P, requiring a. petition for removal to be tiled before defendant is required by the state law to file his plea, or answer.</p> <p>2. Rbmovat/- — Nomivai, Paiitt.</p> <p>A defendant whose only interest in the property in suit is the ownership of an option to buy it on condition that a clear title be given, and that he shall pay a certain sum within a given time, is a nominal party merely, whose joinder does not affect the right of removal.</p>

<p>iB’EnERAL Jurisdiction — •Construction or Act on* Congress.-</p> <p>A complaint seeking to quiet tlie title to mining claims, alleging that defendants claim under relocations made by them, on the pretense that the original locators did not do the proper assessment work for one year, and did not resume work before such relocations, and that certain persons made a, location of certain claims so as to include ICO acres of land solely in the interest of one of defendants, presents issues of fact merely, and does not involve the construction of Rev. St. § 2o24, requiring a certain amount of work to be done on mining claims, so as to give .iurisdiction to a federal court.</p>

This was a suit bty the American Wringer Company against, the city of Ionia, Mich., and others, to enjoin the enforcement, as1 against complainant and its agents, of certain municipal ordinances relating to hawkers and peddlers. The cause was heard on motion for preliminary injunction.

Action by tbe Beck & Pauli Lithographing Company against tbe Wacker & Birk Brewing & Malting Company and Chicago Breweries, Limited, impleaded with Charles H. Wacker and others, names unknown, doing business under the name of Chicago Breweries, Limited. The action was dismissed as to certain defendants, and plaintiff brings error.

<p>Equity Practice.</p> <p>In equity practice, it is permissible to set forth matters of law as well as matters of fact constituting- a defense.</p>

<p>1. Foreclosure Sale — Redemption.</p> <p>Under tbe Minnesota law, the effect of a redemption by lienholders from a foreclosure sale under a prior mortgage is to vest in them the title to the premises, discharged of the lien of the mortgage.</p> <p>2. Assignment op Mortgage — Validity.</p> <p>An assignment of a mortgage without the insertion therein of the name of an assignee is nugatory, and leaves the legal title and the right to foreclose in the mortgagee.</p> <p>3. Same — Mortgagee’s Right to Foreclose.</p> <p>An agreement between an investment company and one to whom it sold certain mortgages that it should “attend to all matters of foreclosure and collection of the mortgage,” with a recital that such person “expected them to take entire charge of the collection of this mortgage and any foreclosure proceedings that they should deem necessary,” authorizes the company to bring such proceedings without further communication with such person.</p> <p>4. Same — Effect on Lien.</p> <p>The foreclosure and sale of mortgaged premises for a part of the mortgage debt exhausts the lien of the mortgage, and the purchaser at the foreclosure sale and creditors holding liens who redeem from him take the property entirely discharged from the mortgage, under the laws of Minnesota.</p>

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

<p>1. Partnership — Suit at Law.</p> <p>A partner cannot maintain an action at law against one or more of his copartners to recover his share of the profit in a single partnership venture, the remaining transactions of the firm remaining unsettled, unless the> particular venture, by express agreement of the partners, bas been segregated from other partnership ventures, and taken out of the general partnership account.</p> <p>3° Injunction against Suit — Gbotiots—Legal Defenses.</p> <p>An agreement by which one became a partner with another in certain real-estate speculations, they agreeing that the money advanced, expended, and received in the eourse of such transactions should be carried into a single continuous account, may be shown as a defense in suits at law by one of such parties against the other for a share of the profits received on one particular transaction, and hence is not ground for an injunction against such suits.</p> <p>8. Same.</p> <p>A person who has in his possession money and property in which he and others are jointly interested may plead, in defense to a suit at law brought by the other beneficiaries to recover a distributive share thereof, that, under the agreement by which the money and property came into his hands, he is entitled to hold it until his lien for advances, or for lia-' bilities incurred on the credit of the fund, has been discharged.</p>

<p>Devise "to Alien — Validity.</p> <p>Const. Wash. art. 2, § 38, prohibiting “the ownership of lands by aliens * * * except where acquired by inheritance, under mortgage or in good faith in the ordinary course of justice in the collection of debts,” and providing- that “all conveyances of .lands hereafter made to any alien directly, or in trust for such alien, shall be void,” does not render a will void because it contains an item devising land to an alien.</p>

e Circuit Court of the United States for the Northern District of Illinois. Suit by the Northern Trust Company, trustee, against the Columbia Straw-Paper Company, to foreclose a trust deed. Annie E. Snyder, administratrix of Henry Snyder, deceased, intervened, for the purpose of demanding insurance money in the hands of complainant. From a decree in her favor, complainant appeals.

On the 1st day of September, 1881, the Oreen Bay, Winona & St. Paul Railroad Company executed to the Farmers’ Loan & Trust Company a mortgage or trust deed to secure the payment of bonds amounting to $1,600,000.

<p>Interstate Commerce — License on Steamboat Business.</p> <p>A foreign corporation, whose vessels, while en route between the ports of two different states, stop at a, port of a third state, is not liable for a license tax at that port because it there leases a wharf or landing; has plant and machinery for the taking in and discharge of freight and passengers; engages stevedores and longshoremen, who are in its sole employment; has there an agent and subordinate clerks, an office, with furniture, books, and appliances; and keeps a bank account and occasionally purchases supplies there, — since all such operations are an essential and integral part of its interstate commerce business.</p>

<p>1. Mining Claim — Location—Wore- on Contiguous Claims.</p> <p>The provision of Rev. St. § 2824, authorizing the necessary work to be done on any one of several claims held in common, applies only when such claims are contiguous.</p> <p>2. Same — Rights of Co-Owner — Fraud.</p> <p>A co-owner of several mining claims, who undertakes to do the work necessary to hold such claims, and reports to his co-owners that he has done such work, cannot acquire any interest therein as against his co-owners because of the failure to do such work.</p> <p>8. Same — Forfeiture—Vested Rights.</p> <p>Act Nov. 3, 1893, provided that Rev. St. § 2324, as to the doing of labor or making of improvements on a mining claim, should be suspended for the year 1893, and that any failure in that regard should not cause a forfeiture. Held, that a co-owner, who had done the necessary work, had no vested right to contribution from his co-owner or to forfeiture in lieu of contribution, which could not be affected by the act.</p> <p>4. Mistake — Ignorance of Contents of Instrument.</p> <p>Ignorance by a party to an instrument of the contents thereof does not relieve him from its legal effect, in the absence of fraud or misrepresentations.</p> <p>5. Partition — Equitable Title.</p> <p>Where one co-owner of property brings suit for partition, it is immaterial whether he has a legal or equitable title, and in either case he is entitled to the same relief.</p> <p>6. Partition Suit — Decree.</p> <p>As between a sale and a partition, the courts will favor the latter.</p>

<p>1. Jurisdiction — Sale or Decedent’s Land.</p> <p>Since, by the North Carolina la,w, proceedings £or the sale of a decedent’s lands to pay debts may be taken in any of the counties in which decedent had lands, it will be presumed that a probate court which assumed jurisdiction to sell lands in another county had jurisdiction to do so.</p> <p>2. Proceedings in State Court — Correction.</p> <p>A United States court has no jurisdiction to construe the proceedings of a state court, and to correct a. supposed mistake in the description of land covered by such proceedings. » I</p> <p>8. Laches — Mistake in Proceedings.</p> <p>Purchasers of decedent’s land under a decree of court, who have an equity in certain other land, on the ground that this was intended to be also sold and conveyed under those proceedings, cannot, after delaying for 12 years, enforce that equity, as against one who purchased from the heirs of such decedent all their land, except that sold in those proceedings, without any knowledge of the mistake in the proceedings.</p> <p>4. Sale of Decedent’s Land — Effect of Decree.</p> <p>Where a deed of land, executed by administrators, as the organ of the court, defines the land sold, fixes the boundaries, and conveys the legal title, nothing hut an equity vests in the purchaser, as to other land not included in such deed.</p>

Bill by Ephraim Lumley against the Wabash Railroad Company. From a decree for defendant (71 Fed. 21), plaintiff appeals. Appellant's bill was dismissed upon demurrer for want of equity.

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

Bill by Minnie C. Jones against Frank G-. Perkins. The complainant sets forth in her bill: That she is now of the age of 38 years; and in the year 1866, while living with her mother in Branch county, in this state, at the request of one Barber Perkins, the father of the defendant, was taken into the family of said Perkins, who had recently lost a daughter of about the same age as complainant, upon the agreement by Perkins and his wife that complainant should take the place…

Bill by Henry B. Childs and others against the N. B. Carlstein Company and others.

<p>PARTNERSHIP BETWEEN TENANTS IN COMMON — EVIDENCE.</p> <p>One L., having purchased an option on land, induced defendant to furnish the purchase money and taire the deed, — their agreement reciting that defendant owned the land; that L. should prospect the land for ores; that expenses, losses, and profits arising from the working of the land should be divided; and that L. should have the right to purchase of defendant any interest in the land, by paying the proportionate part of the price paid by defendant, he to receive a deed for -a one-half interest in case he paid half the price of the land, or in case the proceeds from working the land equaled such price. Held, that there was no partnership in the land.</p> <p>Same.</p> <p>Acts of tenants in common will be referred to that relation, when possible, rather than to an alleged partnership.</p> <p>Same.</p> <p>An habendum clause in a deed of a half interest by the owner of the whole interest, reading, “To have and hold the same * * * so that neither the said parties of the first part, nor their heirs, nor any person or persons for them or in their name or behalf, shall or will hereafter claim or demand any right or tiñe to the aforesaid premises or any part thereof, but they and every one of them shall by these presents be excluded and forever barred,” is inconsistent with die idea of a partnership between grantor and grantee.</p> <p>4. Samk.</p> <p>The fact that tenants in common of land conducted mining operations thereon, leased part of it for such purpose, cultivating part of it as farm lands, and that one of them listed it for taxation in the name of the two, and paid raxes thereon, and made concessions for railroad rights of way thereover, does not necessarily show partnership between, them.</p> <p>5. Samk. „, ■ , ,</p> <p>„, , A partnership may exist between tenants in common of land, m conducting business iliereon, without affecting the legal status of the land.</p> <p>6. ABATEMENT Oh' SlJIT — ANOTHER ACTION PENDING.</p> <p>The pendency of administration proceedings in the state prohate court does not bar proceedings in the federal courts involving the same issues.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Bill by the Union Trust Company of New York against the Atchi-son, Topeka & Santa Fé Railroad Company to foreclose a mortgage. Aldace F. Walker and John J. McCook were appointed receivers in such proceeding, and thereafter Frank T. Kinnare, administrator of Joseph P. McMullen, deceased, filed an intervening petition to recover damages for the death of Ms intestate. From a decree in favor of said intervener, the receivers appeal.</p> <p>The Union Trust Company of New York, on the 23d day of December, 1S93, filed its bill in the circuit court of the United States for the district of Kansas, against the Atchison, Topeka & Santa Fé Railroad Company, seeking foreclosure of a mortgage upon its railroad, and for the appointment of receivers, and on the same day receivers were appointed, pursuant to the prayer of the bill; the appellants being the survivors or successors of the appointees. The order of appointment directed the receivers, among other things, to pay -all just and legal liabilities incurred by the said comx>any in the transportation of freight and passengers, including damages for injuries to employés or other persons and to property, which have accrued, or upon which suit has been brought or was pending or judgment rendered, within twelve months last past. On December 26, 1893, an ancillary bill was filed in the circuit court of the United States for the Northern district of Illinois by the same complainant against the same defendant, and the same persons, by the last-named court, were appointed receivers of the property within that district. On the 16th day of December, 1893, and prior to the institution of either of such suits, Joseph P. McMullen came to his death while attempting to cross Main street, in the city of Chicago, in front of a moving engine, operated by the Atchison, Topeka & Santa Fé Railroad Company. On March 19, 1894,-the appellee, as administrator of the estate of McMullen, filed his intervening petition in the ancillary suit mentioned, to recover damages, under the statute of the state of Illinois, on account of the death of McMullen. After answer and replication, the court below, on the 23d of July, 1894, upon motion bf tlie solicitor for such administrator, and by consent of the solicitor for the receivers, ordered that the intervening petition, the answer of the receivers thereto, and the replication of the administrator “be, and the same are hereby, referred to E. B. Sherman, Esq., one of the masters in chancery of this court, to take proof on the issues joined in said petition, answer, and replication, and report the same to this court, with his conclusions thereon as to the amount of damages, if any, which the said administrator is entitled to recover under said issues.”</p> <p>On the 22d of December, 1894, the master reported the facts found by him and his conclusions, as follows:</p> <p>“Facts: First. That from 31st street, in the city of Chicago, county of Cook, and state of Illinois, there runs northwesterly, to the south branch of the Chicago river, a street called ‘Main Street’; that south of and near to the said Chicago river there is a railroad crossing at about right angles with Main street, at which crossing there are at least seven parallel tracks, some witnesses slating the number to be twelve; that on the 10th day of December, 1893, the two most northerly of said tracks were used by the Chicago & Alton Kailroad Company, and the two tracks next on the south were used by the Illinois Central Itailroad Company, and that south of its tracks were two other tracks used by the defendant railroad company, and there were gales both upon the north and, the south sido of said crossing, which were operated by a man in a lower situated at the northeast corner of said crossing and said Main street; that the part of the gate extending over the sidewalk, west of Main street, and which, when lowered, extended west, was broken so that when the gates were lowered, a space of at least five or six feet upon the outer part of the sidewalk west of Main street wras left unprotected by said gate; and that said gate had been in that condition for a long time previous to December 1G, 1803. Second. Thai Joseph P. McMullen, deceased, who was about fifty-eight years of age, and a millwright and machinist by tra.de, had been for about four months before said Kith da.y of December, 1893, employed upon a gas plant then being erected on Main street north of said crossing; that during this time he had lived south of 33st street, and in going to and from his home to his work, and returning, he had daily passed to and fro on Main street, and crossed said tracks at the Main street, crossing; that said McMullen was a strong and vigorous man, an expert at his business, and receiving from ¡¡>4 to ijil.oO per day. Third. That shortly after five o’clock in the afternoon of said Kith day of December, 1893, said McMullen, in going from his place of business to his home.» approached the Main street crossing from the north, walking on the sidewalk west, of Main street; that said street was sixty-six feet in width, of which eight feet on each side was occupied by the sidewalk; that the crossing and sidewalk across the tracks were planked in the same manner, so that there was no perceptible difference between the street and sidewalk so far a.s this crossing was concerned; that, at the time said McMullen was so approaching said crossing, an Illinois Central freight train, coming from the west, nearly reached the crossing, and was within a block thereof; that south of the said Illinois Central train, and separated fiom it by an intervening’ track, two engines of the defendant company, the one closely following the other, were backing down from the west, and, when near the Main street crossing, the defendant company’s engine, in advance, was a little behind the engine of the Illinois Central train, and its speed a little greater; that said McMullen, at the time when he reached the crossing, saw the approaching Illinois Central train, but could not see the defendant company’s engines beyond and south of said Illinois Contra! tram; that neither said Illinois Central train nor said engines were, as they crossed Main street, running more than six miles an hour; that upon the end of the tender of defendant company's locomotive, which first approached the crossing, there was it. headlight; that the bell on said locomotive had been ringing continuously for at least a mile west of said crossing, and was ringing when the engine approached, and while it was passing over, Die crossing; that the gate on the north side of the crossing had not been lowered when McMullen pa,ssed it, nor was the tower bell then ringing, but that the gate was lowered and the bell rang immediately thereafter, and before the Illinois Central train had passed over the crossing; that there was no flagman on duty at the time at the said crossing; that when said McMullen reached the crossing, upon the sidewalk west of Main street, the Illinois Central tram was very close to the crossing; that said McMullen, in order to cross in front of said Illinois Central train, turned and ran to the southeast, diagonally across Main street and the Illinois Central tracks, and in front of its engine; that, continuing in the same general direction, he then passed the intervening track between the Illinois Central tracks, and that upon which defendant company’s engines were passing, tender first, to the eastward, and, when about half the way across Main street, lie ran in front of the tender of defendant company’s engine, and was struck and killed by it, and bis body carried to the eastward of Main street at)out 15 or 20 feet before the engine could be stopped; that the engineer of defendant company’s engine, which struck and killed said McMullen, applied the brake, and reversed his engine, as soon as he saw him; that, at the time this accident happened, it was quite dark; that a drizzling rain and snow was falling.</p> <p>“Conclusions of law: First. That 1lie said McMullen, being familiar with said crossing, must be presumed to haves known that the said tracks were used by different railroads, and that several trains or engines might approach said crossing either from the same or opposite directions at the same time; that he was put upon inquiry as to whether there were not other trains or engines upon the tracks south of the Illinois Central, and which he was not able to see, and against which, if there, he ought to be on his guard. Second. That the employes in charge of the defendant company’s engine took every reasonable precaution, and were not guilty of negligence in the premises. Third. That neither the fact that the gates were not lowered sooner, nor the fact that part of the gate protruding over the sidewalk was broken, leaving a vacant space over a part of the sidewalk, contributed in any manner to the death of said McMullen, since he saw the approaching Illinois Central train, and was fully advised of its approach and of its nearness. That the failure of the defendant company and others using said crossing to keep a flagman stationed there, to give warning of the approach of trains and engines along the railroad tracks, did not contribute to .the accident which resulted in the death of said McMullen. That the master understands the law to be that any failure of defendant railroad company to comply with a statutory requirement or a city ordinance, or any negligence on its part, which violation or negligence did not contribute to the injury received by said McMullen, does not create a liability against the defendant railroad company or its receivers. Fourth. The master therefore finds that the said administrator is not entitled to recover as against said defendant railroad companjr, or its receivers, in any sum whatsoever.”</p> <p>To this report the intervener (appellee here) filed exceptions, as follows:</p> <p>“Exceptions to facts found: First. For that the master has found ‘that said McMullen, at the time when he reached the crossing, saw the approaching Illinois Central train,’ whereas he should have found that he first saw said train when he reached the Illinois Central track, and when he was in the midst of impending danger. Second. For that the master has found ‘that neither the Illinois Central train nor said 'engines were, as they crossed Main street, running more than six miles per hour,’ whereas the master should have found that trains were going at least fifteen miles per hour. Third. For that the master has refused to find that the ordinance of Chicago in force on the 16th day of December, 1803, required a flagman at said crossing. (The fact is, the ordinance was produced and quoted, but master claimed it was not within his province to make any finding on ‘question of ordinance or statute.’) Fourth. For that the master has refused to find that the said railroad company did not at the time of said accident render such protection to the public by substituting a towerman in lieu of a flagman, as is contemplated by said ordinances. Fifth. For that the master has refused to find from the evidence that engineer of said Santa Fé locomotive saw McMullen, and reversed his engine just as he reached the west side of Main street.</p> <p>“Exceptions to conclusions of law: First. That as to the first finding of law, ‘that he was put upon inquiry as to whether there were or were not other trains or engines upon the tracks south of the Illinois Central, and which he was not able to see, and against which, if there, he ought to be on his guard,’ intervener insists is not a proper conclusion of law or fact. The master should have found that, by reason of the gates being up and the absence of a flagman, McMullen was invited to cross said tracks; that, by reason of the darkness then prevailing, he did not see said Illinois Central train or the Santa Fé engine until he was in imminent peril of his life. Under these circumstances, the intervener should have recovered for all injury or damages sustained. Second. That at? to said second finding of law, ‘that the employes in charge of defendant’s engine took every reasonable precaution,’ the master erred. He should have found that they were going at an unlawful rate of speed, especially in attempting to pass the Illinois Central freight train at the crossing. Third. That as to the third finding of law the master erred In stating that the failure of the company to observe the necessary signal, and give the required warnings, did not contribute to the death of McMullen, since the latter saw and understood the nearness of the Illinois Central train, and, not so contributing to the said death, the said company is not liable. The master clearly erred, and should have found that McMullen was entitled to all the protection in the way of signals and notices required by statute or ordinance. That, in the absence of these, the burden of proof is on the Santa Fé Company to show that notwithstanding, if the required signals had been given by them, the said McMullen would, nevertheless, have been killed. This the said company has not shown. Fourth. That as to the fourth finding of law, that the sa.id administrator is not entitled to recover as against said defendant railroad company, or its receivers, in any sum whatsoever, the master erred. He should have found that the said defendants were guilty of negligence per se, and that the said defendant company was guilty of gross carelessness and negligence. That said deceased used ordinary care, and that his administrator should recover damages,” etc.</p> <p>On the 20th of June, 1895, the court below entered an order sustaining the exceptions to the master’s report, and found that the intervening petitioner was entitled to a decree for damages, and re-referred the cause to the master, to ascertain the amount of damages, and report to the court. In pursuance of that interlocutory order or decree, the master reported damages In the sum of §4,871.69, to which report exceptions were filed by the appellants here, which exceptions were overruled by the court below, which court, on the 2d day of December, 1895, entered decree in favor of the intervener for the damages reported, and directed the receivers to pay such amount out of funds in their hands arising from (he administration of the estate of the Atchison, Topeka & Santa FS Railroad Company, from which decree, upon proper assignments of error, the receivers appeal to this court.</p>

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

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

<p>1. National Banks — Cashier—Term op Oppioe.</p> <p>The office of cashier of a national hank is not an annual office, hut the term of the incumbent continues until he resigns or until he is removed or a successor is appointed hy the hoard of directors of the bank.</p> <p>2. Same — Duration op Term.</p> <p>Since the national hank act expressly provides that the cashier of a. national hank shall hold his office subject to the pleasure of the hoard of directors, a by-law providing that a cashier shall hold his office for one year, and shall he elected annually, is nugatory, as is a reappointment in accordance with such, by-law at the beginning of each year.</p> <p>3. Same — Bond—Construction.</p> <p>A bond conditioned for the proper performance by a cashier of his du-, ties “for and during all the time he shall hold the said office” bind's the sureties for all such time, irrespective of the fact that he is reappointed at the beginning of each year.</p> <p>4. Same.</p> <p>In an action on a cashier’s bond for damages arising from broach thereof by his misappropriation of money and making of excessive loans, the fact, that the bank and its receiver have sued and obtained judgment upon notes taken by the cashier for such misappropriated money and excessive loans is no defense.</p>

<p>1. Ikjubies to Employe — Negligence.</p> <p>A railroad employs, while wiping an engine in the daytime, placed one hand upon the tire oí one of the driving- wheels, upon which was a sliver six inches long, and projecting over half an inch beyond the outer edge of the tire, and was injured by a small splinter of this sliver. It was shown that such slivers and splinters were frequently formed upon engine tires, and that they are ordinarily permitted to remain until the wheels are turned anew. Held, that the railroad company was not liable, as the injury could not have been foreseen or reasonably anticipated.</p> <p>2. Assumption op Risk.</p> <p>The danger and risk from the ragged sliver upon the engine wheel being open and apparent, a person employed to clean the engine assumed such danger.</p> <p>3. Same — Negligence.</p> <p>One who places his bare hand, in open day, upon ragged splinters or a steel sliver, projecting over half an inch, to support himself in the performance of his work, when there are smooth and harmless surfaces about him serviceable for that purpose, is negligent.</p>

<p>In Error to tbe Circuit Court of the United States for the Southern District of Illinois.</p> <p>Action by Samuel Wilson against the Mobile & Ohio Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p> <p>In this case the circuit court refused all special requests for instructions, and charged the jury as follows: “The declaration in this case contains three counts, each differing somewhat, from the other, but they substantially charge the defendant railroad company with so negligently and carelessly operating its train, consisting of a locomotive and car. as that the plaintiff, who ivas in his wagon, driving across Vine street, in tito city of Sparta, and at the lime exercising due care and caution, was struck by such engine, and seriously and permanently injured. A number of acts of imputed negligence on the part of the defendant are specifically mentioned; among them, that the train was running at a dangerous rate of speed, that no whistle was sounded or bell rung, or care or prudence shown in operating said train, at the time and place of the accident. Under the pleadings in this case the burden rests on the plaintiff to establish the negligence of the defendant, complained of in his declaration, by tbe preponderance of tbe evidence. There are two questions of fact in tbis case to be determined by you from the weight of tbe evidence:. First. Was tbe defendant guilty of negligence in approaching tbe Vine street crossing, either in running at a dangerous rate of speed or in failing to give such signals as tbe law required it to give? What is a safe rate of speed, or what is a reasonable and timely warning/, depends on or may depend on tbe circumstances. Of course, tbe speed of a train should not be so great as to render unavailing tbe warning of its whistle and bell; and while, it may be true, tbe fact that tbe speed of a train is greater than tbe maximum rate fixed by an ordinance is a circumstance from which negligence .may be inferred, yet that is but a circumstance to be considered by tbe jury in connection with tbe other evidence and circumstances in tbe case. If tbe evidence in tbis case shows that tbe crossing was hazardous, greater care was alike required by both tbe defendant company and tbe plaintiff in approaching it. All reasonable precautions should have been taken by tbe railroad company to avoid injury to persons and property, and this includes such management of its trains and such warning of their approach, or such other reasonable precautions, as not to cause unnecessary risks to persons on or about tbe crossing. The ordinary or proper care required by tbe plaintiff when approaching a crossing was to listen and look, and to have acted with reference to his own safety, as a reasonably prudent man would have acted under the same circumstances. Whether the plaintiff, at the time of the injury, was, under all the circumstances of the case, in the exercise of such care as would be expected of a reasonably prudent and careful person under similar circumstances, is a question of fact submitted to the determination of the jury. If you believe from the weight of the evidence that the plaintiff was guilty of contributory negligence he cannot recover, unless you further believe, from the evidence, that the defendant railroad company might, by the exercise of reasonable care and prudence, have' avoided the consequences of the plaintiff’s negligence. If it could have done this, but failed to do so, the plaintiff may recover, although guilty of contributory negligence. These questions of due care on the part of the plaintiff'and of alleged negligence on the part of the defendant are questions of fact to be determined respectively by you in view of all the facts and circumstances in evidence. If the weight of the evidence shows the defendant was guilty of the imputed negligence resulting in injury to the plaintiff when exercising ordinary care, then you should find the defendant guilty, and assess plaintiff’s damages at whatever sum, in your opinion, the evidence, properly considered, may warrant. If it does not so show, you should find the defendant not guilty. The form of your verdict may be: ‘We, the jury, find , the defendant guilty, and assess the plaintiff’s damages at’ -whatever you may agree upon under the evidence. If you find for the defendant, your verdict will be: ‘We, the jury, find the defendant not guilty.’ ”</p>

<p>Contract — Suit by Third Person.</p> <p>An agreement made by one person with another to pay a debt due by the latter to a third person is not the subject of suit by such third person, when there was no intention to benefit him, and nothing of value came under the contract within the control of the promisor which, in equity, belonged to such third, person, or is subject to a lien in his favor.</p>

<p>This was an action at law by Allnut, Nixon & Goldsborough against S. T. D. Lancaster and others to recover a sum of money.</p>

<p>The United States Attorney General, George J. Denis, U. S. Atty., and Joseph II. Call, Sp. Asst. U. S. Atty., for the United States. t</p>

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

<p>Removal of Causes — Separable Controversy.</p> <p>In a proceeding to foreclose a mortgage, a defendant, who is alleged to be personally liable for the deficit, cannot remove the cause from the state court on the ground that the controversy as to his personal liability is a separable one.</p>

This was a foreclosure suit brought by O. Pooley against Juan M. Luco and others. The cause was heard on demurrer to the bill for want of jurisdiction.

<p>Bill by tbe Crystal Springs Land & Water Company and S. G-. Mnrpby against tbe city of Los Angeles.</p>

<p>1. Public Land — Location—Indian Treaty,</p> <p>Tlie location of a tract of public land by an alleged beneficiary under the seventh clause of the second article of the treaty of September 30, 1854 (10 Stat. 1109), between the United States and the Chippewa Indians of Lake Superior, segregates the tract from the public domain and appropriates it to private use.</p> <p>2. Bame.</p> <p>While such a location remains in force, Porterfield warrants issued under the act of April 11, 1800 (12 Stat. 836) cannot be lawfully located on the same land, because that land has been otherwise appropriated by the prior location whether right or wrong.</p> <p>3. Decision of Land Department.</p> <p>The adjudications of tlie land department upon questions within its jurisdiction, if erroneous, are not void, but. are valid until reversed on appeal or set aside by proper direct, proceedings for that purpose.</p> <p>4. Pre-emption Entry.</p> <p>An entry of la.nd under tlie seventh clause of the second article of tlie treaty of September 30, 1854, supra, is not a pre-emption entry, and one who contests it acquires thereby no right to bo preferred in the purchase or acquisition of the land under section 2 of the act of May 14, 1880 (21 Stat. 140, 141, e. 89, § 2).</p> <p>5. Location of Land — Enforcement of Trust.</p> <p>One who is not in privity with the United States, and who did not acquire any rigid to be preferred in Oxe acquisition of a tract, of land, before the claim to it upon which it was patented was initialed, may not maintain a bill in equity to subject the holder of the legal title to a trust in his favor on the ground that the patent was issued through errors in law.</p> <p>(Syllabus by tlie Court.)</p>

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

<p>1. Specifications of Error.</p> <p>The specifications of error in a case brought up by appeal should be, not that the evidence shows this or that, but that in this or that particular, separately stated, the decree is erroneous.</p> <p>8. Parties to Appeal.</p> <p>A party to the suit who has succeeded by purchase to the rights of persons affected by the decree may join such persons in prosecuting the appeal.</p> <p>3. Assignment of Errors.</p> <p>The omission to set out in the title of an assignment of error the names of all the parties to the record whose interests are intended to be, and manifestly may be, ■ affected by the appeal, does not affect the jurisdiction of the circuit court of appeals over the parties whose names were omitted.</p> <p>4. Same.</p> <p>On appeal from a decree holding certain shareholders of a corporation liable to creditors, a distinct specification for each creditor is not necessary if the question of the shareholders’ liability to one creditor is not different-from that of their liability to other creditors.</p> <p>5. Following State Decision — Construction of Statute.</p> <p>The first direct ruling of the supreme court of the state upon' a particular question involving the construction of a state statute will be followed by the federal court. 68 Fed. 1006, reversed.</p> <p>6. Judgment against Corporation--Effect on Shareholders.</p> <p>In respect to rights arising out of contracts other than subscriptions for stock, a shareholder is not bound by a judgment or judicial proceeding against a corporation to which he was not a party. 68 Fed. 1006, reversed.</p> <p>7. Same — Farticipation in Defens f.</p> <p>Persons are not bound by a decree by reason of their participation in the suit unless their conduct in that regard was open and avowed, or otherwise known to the .opposite party, so that it, too, was concluded, or would have been, by an adverse judgment.</p> <p>8. Stockholders — Personal Liability.</p> <p>Persons holding stock by direct issue as collateral security for a debt of the company to them are not liable to creditors of the company, as if they subscribed for it, unless they allowed themselves to be represented as shareholders to the creditors who gave credit on the faith of that liability.</p> <p>9. Same — Invalid Stock.</p> <p>Under the Wisconsin statute, if an issue of stock as collateral for a' debt of the company is illegal, the stock is void, and the holder thereof is not liable to corporate creditors who were not especially misled by his conduct.</p> <p>10. OouroRATK Bonds — Cancellation—Return op Consideration.</p> <p>Bonds issued by a corporation as collateral for a debt will not be ordered to be canceled because issued in violation of the state statute requiring payment in money or property of a certain per cent, of their face value, unless the money received by the company upon the pledge of the bonds has been repaid or otherwise secured.</p> <p>11. Mortgage op .Franchise — Construction.</p> <p>A mortgage of a franchise giving the right to “construct, own, maintain, and operate” a certain water plant in process-of construction, carries with it such plant.</p>

<p>Action by Abner T. Bowen against the Needles National Bank. On ■petition.by Daniel Murphy, receiver, to intervene.</p>

<p>1. Electric Wires — Interference—Injunction.</p> <p>A bill by a telegraph compa ny seeking to restrain the operation. of electric light wires which have been placed so close to complainant’s wires as to interfere with and injuriously affect the working of the latter need not state the distance at which .an electric current on one wire will affect another, this being matter of evidence.</p> <p>2. Same — Priority or Rights.</p> <p>A franchise to ’operate a telegraph line over any part of the United States domain, or any military or post road, acquired under Act Cong. July 24, 1866, when accompanied by occupancy thereunder, confers rights superior to those of a company subsequently constructing a line for transmitting electricity both for lighting purposes and for propelling machinery, and hence the latter line must be constructed so as not to interfere with the former.</p>

<p>1. The Right to Prescribe Maximum Rates eor the Transportation op Freight.</p> <p>The right to prescribe maximum rates for the Iransportation of freight is the right to dictate an indispensable a.nd one of the most important terms of the contract between the carrier and the shipper.</p> <p>3. Same.</p> <p>As a legislative right it has been so long and so generally recognized as to be beyond question, and it results from the corporate existence of the common carrier, or from his quasi public relation to any and all who may come to him as freighters or passengers.</p> <p>8. Same.</p> <p>It can hardly he sa.id to be within the recognized limits of the exercise of judicial right or power, because, while a court of equity may enforce specific performance of a contract, or correct mutual mistakes in it, it never makes a contract.</p> <p>4. The Interstate Commerce Commission.</p> <p>The interstate commerce commission is not invested, and cannot he invested, under the constitution, with either legislative power or purely judicial power. Its functions are necessarily restricted to the performance of administrative duties, with such quasi judicial powers as are incidental and necessary to the proper performance of those duties.</p> <p>5. Same — Right op the Commission to Fix Rates.</p> <p>It is not an incidental light. It is not a right or power to he derived by implication or construction from general librases in the first or other sections of the act to regúlale commerce, nor can it he imported into the act by reference to or by reason of the necessities of the case. If found at all, it must he found in express and specific language, among the powers and rights granted in direct terms, and there is no such language in the act.</p> <p>6. Same.</p> <p>The power of the commission to fix rates was denied by the supreme court in Cincinnati, N. O. & T. P. Ry. Go. v. Interstate Commerce Commission, 102 TJ. S. 196, 16 Sup. Ct. 700.</p> <p>7. The Act to Regulate Commerce.</p> <p>Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers, as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rate's so as to meet the necessities of commerce, and, generally, to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits.</p> <p>8. Cases Cited.</p> <p>Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 18-1-197, 16 Sup. Ct. 700; Texas & Pac. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197 -255, 16 Sup. Ct. 666; Interstate Commerce Commission v. Louisville & N. R. Co., 73 Fed. -109-429; Interstate Commerce Commission v. Northeastern R. Co., 74 Fed. 70-73; Interstate Commerce Commission v. Alabama Midland Ry. Co., 69 Fed. 227-233, 74 Fed. 715-723; Interstate Commerce Commission v. Lehigh Yal. R. Co., 74 Fed. 784-788.</p> <p>(Syllabus by the Court.)</p>

<p>1. Railroad^ Rates — Control bv Congress.</p> <p>The presumption that a rat» fixed by congress is reasonable cannot be overcome except by some showing as to expenses and receipts during an adequate period.</p> <p>2. Same — Construction op Charter.</p> <p>Act July 27, 1866 (Atlantic & Pacific Railroad Company Charter) § 13, provided that the directors of the company “shall, from time to time, fix, determine, and regulate the lures, tolls, and charges to be received and paid for transportation of per,sons and property.” Held, that the government did not thereby renounce its right to reasonably limit the charges for transportation of persons and property over such railroad.</p> <p>3. Same.</p> <p>The proviso, in section 5 of taicl act, that the company shall not charge the government higher rates than individuals for like transportation, did not affect the right of the government to further limit the rates to be charged to it.</p> <p>4. Same.</p> <p>Nor was the right of the government to limit charges affected by section 11, providing that the road should “be a post route and military road, subject to the use of the Untied States for postal, military and all other government service, and also subject to such regulations as congress may impose restricting the chargee, cor such-government transportation.”</p> <p>5. Same.</p> <p>A reservation in the charter of the power, “having due regard to the rights of said” company, to “add to. alter, amend, or repeal this act,” empowered congress to regulate the freights and fares, and this could properly be done by an act applying to all land-grant railroads, prescribing a maximum charge for government transportation. '</p>

<p>This was an action at law by Frank Columb against tlie Webster Manufacturing Company. The cause was heard upon the petition of the complainant in forma pauperis. The statute relating to suits by poor persons is, in full, as follows:</p> <p>“Be it enacted by llie senate and bouse of representatives of the United States of America in congress assembled: That any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to xrrepay fees or costs, or give security therefor before or alter bringing suit or action, upon iiling in said court a statement under oath, hi writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action.</p> <p>“Sec. 2. That alter any such suit or action shall have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or security for costs by filing a like affidavit, and wilful false swearing in any affidavit provided for in this or the previous section, shall he punishable as perjury as in other cases.</p> <p>“Sec. 3. That the officers of court shall issue, serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases.</p> <p>“Sec. 4. That the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court he satisfied that the alleged cause of action is frivolous or malicious.</p> <p>“Sec. 5. That judgment may be rendered for costs a.1: the conclusion of Ihe suit as in other cases: provided, that the United States shall not be liable for any of the costs thus incurred.”</p> <p>27 Stat. 252.</p>

The plaintiff was injured by a locomotive which was operated by an engineer of the defendant, and ran over and severed the plaintiff’s foot, while caught in an iron cattle guard, in the track of the defendant’s railroad, in the village of Carlton, Minn.

Bach party to this record proseemos a writ of error. The action was commenced by Augustus T. Post, since deceased, and is in assumpsit, ujion coupons from bonds of Hamilton couuly, 111., issued to the St. Louis & Southeastern Rail way Company.

<p>Carriers — ,Who are Passengers — Evidence.</p> <p>Where the court, on an issue as to whether one injured in a railroad accident was a passenger on the train, admitted evidence that a few minutes, before the accident the conductor of the train looked into the ear where plaintiff was, addressed him, and remarked that he would be back soon, it was error to exclude evidence by one of the brakemen that the conductor, who was killed in the accident, did not go to the box car in which plaintiff was riding, while' he was in charge of the train, and did not know that plaintiff was riding t.ierein. Caldwell, Circuit Judge, dissenting.</p>

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

TMs was an action at law by George W. Witty against the Southern Pacific Company and Wells, Fargo & Co., to recover a reward for making an arrest. The case was tried to the court without a jurj-

These were two indictments against Richard S. Williams for demanding and receiving, as a Chinese inspector, compensation not authorized by law. The case was heard on motion in arrest of judgment.

Appeals from the Circuit Court of the United States for the Southern District of New York, This was a suit in equity by Theodore A. Tuttle, trustee, etc., against John Claflin, as executor of Horace B. Claflin, and others, formerly partners, under the name of H. B. Claflin & Co., for alleged infringement of a patent for a machine for crimping textile materials. The patent was sustained, and held to be infringed, by the court below, and an accounting was ordered. 19 Fed. 599.

<p>This was a libel in rem by Wil iam V. Abbott and others, owners-of the schooner pilot boat D. J. L : wlor, against the fishing schooner Horace B. Parker (John Chisholm and others, claimants), to recover-damages resulting from a collision whereby the Lawlor was sunk and lost. The district court rendered a decree holding the Parker solely in fault, and the claimants appealed. This court on January 9,1896, reversed the decree below, and remanded the Cause, with- directions to enter a decree dividing equally' the damages and the costs in each-court. ’ See 18 C. C. A. 406, 71 Fed. 9S9. On February 18,.1896, the-appellants filed a peiition for a rehearing, both upon the merits of the appeal and the question of costs.</p> <p>accompanied their petition for rehearing with a brief, which, in so far as it related to the matter of costs, was in the following language:</p> <p>(3) The decision of this court, so far as it divides equally the costs in iliis court, is erroneous. We respectfully submit that the appellants are entitled to full costs in this court, and that the costs in the district court should he divided, unless the libel is dismissed on this hearing, in which event claimants and appellants are entitled to full costs in each court. The America, i)2 U. S. 432, 438; The Umbria, 8 O. O. A. 181, 59 Fed. 475. As this court is now the court of last resort in collision cases, the rule of the supreme court relating to costs in that court should be followed here. Whatever diversity of opinion may have formerly existed regarding this matter (The Hercules, 20 Fed. 205, and cases cited), the order of the court in The America, cited above, and the apparent justice of the language, of ihe court in The Umbria, cited above, “there is no good reason why the appellant should be required to bear the costs of a necessary appeal,” would seem to definitely settle the question.</p> <p>Thereafter, by leave of court, the parties were heard on briefs on the question of costs, and the following additional brief was filed in behalf of the appellants:</p> <p>While admitting that costs in admiralty are entirely under the control of the court in each particular case, we respectfully submit that, in the absence of particular circumstances of equity, the courts have always followed some gen-eial rule, concerning which the decisions have heretofore been more or less conflicting. However, it is manifest that any rule regarding the allowance of costs in the appellate court must necessarily be different from that prevailing in courts of original jurisdiction.</p> <p>(1) The costs of the district court should be divided. The appellants in this case sustained damages which they are entitled to recoup or set off against any damages awarded to libelants. We hardly imagine that this court will follow the practice suggested in appellees’ brief on the question of costs, which would result in compelling every claimant in a collision ease in which his adversary’s vessel was totally lost, to incur the expense of filing a cross libel, useless for any purpose except to enable him to recover his costs if partially successful on appeal. In the case of The Mary Patten, 2 Low. 1ÍX5, 199, Fed. Gas. No. 9,223, one party suffered all the damages; and, even under those circumstances, judge Lowell was in doubt whether full or divided costs should bo awarded. It is evident, therefore, that the case of The Mary Patten would not be applicable to the case at bar, even in the district court, because the Horace B. Parker suffered substantial damages as well as the Lawlor. Moreover, the decision in the case of The Mary Patten appears to have met with criticism and opposition, and to have been modified by Judge Lowell himself in The Hercules, 20 Fed. 205.</p> <p>(2) The appellants are entitled to full costs in this court. See Metropolitan S. 8. Go. v. British & N. A. Steam NTav. Go. (decided by this court April 16, 1896) 20 O. C. A. 214, 74 Fed. 316. In the ease of The Parthian, 5 O. C. A. 171, 55 Fed. 426, cited in the appellees’ brief on the question of costs, it does not appear that the steamer sustained any damage, or that the question of costs was raised in any form. In the case of The .T. j. Driscoll, 12 O. 0. A. 4, 63 Fed. 1023, cited in the same brief, it will be observed that half costs were allowed to the libelant against each of the two defendant steam vessels, thus awarding full costs in each court to libelant. But, as the decree of the lower court was affirmed in that case, it has no application whatever to the case at bar. The rule in the Second circuit appears to be in accord with the practice followed by this court in Metropolitan S. S. Go. v. British & N. A. Steam Nav. Co., cited above, and in no respect as stilted in the appellees’ brief. The Princeton, 14 0. 0. A. 527, 67 Fed. 557; The Umbria, 8 G. 0. A. 181, 59 Fed. 475.</p> <p>We respectfully submit that, although the question of costs in this district is discretionary with the court, uniformity of practice should prevail, and that the former practice in the district of Massachusetts should govern.</p> <p>• (1) The costs- of the, district court should be awarded to the libelants, it will be noted that this is not a collision cause where there is both a libel and a cross libel, but is the case of where but one action was commenced. Judge Lowell fully considered this question in the case of The Mary Patten, 2 Low. 199, Fed. Oas. No. 9,223, which presents exactly this question of allowance of costs in the district court where the damages were divided; and this rule, which was there adopted, has been the uniform rule in the district of Massachusetts since that date, in the absence of a special order of the court. It is founded on the familiar principle that a person who is entitled to a money decree, even though for a less amouui than he originally ashed for, should be entitled'to his costs, in the absence of a tender or offer of judgment made by the defendant. The whole question is fully discussed, on the last page of that opinion. ;</p> <p>(2). That the costs of this court should be equally divided. This rule was adopted in the case of The Parthian, 5 O. O. A. 171, 55 Fed. 426, decided by this court in 1893, which was an appeal from a decree from the district court of Massachusetts, being an appeal from the same court as the case at bar. In that case the libel was dismissed in the court below; and this court reversed the decision of the district court, finding both vessels at fault, and decreeing that the costs in the circuit court of appeals should be divided. This rule should apply in the case at bar, the i ases in this regard being in every respect the same. The same rule has been followed in the ease of The J. J. Driscoll, 12 O. 0. A. 4, 63 Fed. 1023. In the Sixth circuit, see The Fountain Oity, 10 O. 0. A. 278, 62 Fed. 87; The North Star, 10 O. C. A. 262, 62 Fed. 71.</p> <p>We think that the true rule in collision cases in the circuit court of appeals on the question of costs is, viz.: First, if the appellant fully reverses the decree of the district court, and his own vessel be held free from fault, then he should be entitled to full costs on appeal; second, if, the appellant being found alone to blame in the district court, the circuit court of appeals finds both vessels to blame, then that the cost of the appeal should be divided.</p> <p>That in the case at bar, for the reasons above given, the logical order should be that the libelants recover the costs of the district court, and that the costs of the appeal should be divided.</p>

be Circuit Court of the United States for the Northern District: of Illinois, Northern Division. This was an action against the United States, prosecuted under the act of March 3, 1887, c. 359 (21 Slat. 505), and it is contended that the appeal should be dismissed because the action was one at law, a,nd the judgment reviewable only upon a writ of error.

<p>1. Diverse Citizenship.</p> <p>Diverse citizenship, to sustain federal jurisdiction, must he such that all the parties on one side of the controversy are citizens of different states from all those on the other side; and, in determining the question of jurisdiction, the parties are to he arranged on one side or the other, as their interests require.</p> <p>2. Necessary Parties.</p> <p>Where a person is so related to the subject-matter of a suit in equity, that his rights must unavoidably he passed on by the court in reaching a final decree, he is a necessary party.</p> <p>3. Same.</p> <p>Complainant company, as owner of the bonds and most of the stock of two water companies which were furnishing water to a city and its inhabitants under a contract with the city, filed a hill to restrain the city from making and carrying out a contract with defendant water company for the furnishing of water by the latter, on the ground that such contract would he made through corrupt influences, and that its consummation would practically confiscate the property of the water companies, the stock and bonds of which were held by the complainant, and render' such stock and bonds worthless. Held, that the water companies were necessary parlies.</p> <p>4. Same.</p> <p>The fact that the bonds of one of such water companies owned by complainant exceeded the assets of such company did not affect the necessity of making it a party.</p>

<p>Jn Error to the Circuit Court of the United States for the District of South Dakota.</p> <p>This is an action of replevin brought by H. M. Miles, a citizen of South Dakota, the defendant in error, in the circuit court of Brule county, S. D.. against the People's Savings Institution, a corporation and citizen of the state of Pennsylvania, the plaintiff in error, to recover the possession of contain artesian well machinery, engines and boilers, and 2,800 feet of drive pipe. On the petition of ihe defendant the cause was removed into' the United States circuit court for the district of South Dakota. The defendant’s ar-swer alleges a purchase of the drive pipe from the plaintiff, wh.o executed and delivered a bill of sale therefor and delivered the possession thereof to the defendant, and, as to all the other property, alleges the plaintiff on the 3d day of August, 1893, executed to the defendant a chattel mortgage thereon to secure an indebtedness of 88,130.65; that the mortgage debt matured on the 1st day of May, 1894, and remained due and unpaid, excepting a payment of if2,000, until the 22d day of January, 1895, when the plaintiff delivered the property to the defendant to ho sold under the mortgage; and further avers that it was entitled to the possession of the property by the terms1 of (he mortgage. On the 3d day of April, 1895, Brule county filed its petition of intervention in the cause, claiming to be the owner of the 2,800 feet oí drive pipe. As to the drive pipe;, the plaintiff conceded that it wa.s the property of the county, and the controversy as to the ownership of that was between the county and the defendant. By consent of the parties the issues between the plaintiff and defendant and between the intervener and defendant were tried to the same jury. There was a verdict and judgment in favor of the county for the drive pipe, and in favor of the plaintiff for the remainder of the property, and the defendant sued out this writ of error.</p>

In September, 1888, the appellant, Graver, brought a bill in the superior court of Cook county, Ill., against the appellee, Faurot, and one Bailey, charging in substance that ihe defendants by deceitful and fraudulent practices had induced the complainant to purchase of Bailey 500 shares of stock in the Edwards Oil-Burner Company, at the price of 00 cents on the dollar, when the stock was in fact worthless; that Faurot, who was the president of the Lima National Bank, at…

<p>Assignment for Benefit or Creditors — Preferences—Chattel Mortgage'</p> <p>Under the laws of Kansas, a chattel mortgage executed in favor of a creditor in compliance with a demand for security is not invalidated by an assignment for the benefit of creditors, made within a few hours thereafter, the mortgagee having accepted and recorded the mortgage without any knowledge of the mortgagor’s intention to make an assignment. Sanborn, Circuit Judge, dissenting.</p>

Appeals from the Circuit Court of the United States for the District of Kansas. Those are appeals from a decree of foreclosure of a trust deed upon the waterworks in the city of Arkansas City, in the state of Kansas.

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This suit involves ihe validity and duration of the street franchises claimed by the Cincinnati Inclined Plane Railway Company, a corporation organized and existing under the laws of the state of Ohio, and owning a.nd operating a line of su-eet railway occupying certain streets in the city of Cincinnati. The street grants claimed and occupied by the said railway company are held and claimed under and by virtue of acts of the legislature of Ohio and ordinances of die city of Cincinnati. The questions arise under an original bill filed by the Louisville Safety-Vault & Trust Company, a corporation organized and existing under the laws of the state of Kentucky. The complainant company is the trustee under a mortgage executed by the Cincinnati Inclined Plane Railway Company, January 1, 1889, duly recorded. This mortgage was made for the purpose of securing an issue of $500,000 in negotiable bonds, the principal being payable in 3911, with interest coupons attached, payable semiannually. Of these bonds ■l)i375,000 have been issued and are in the hands of unknown holders, for value. The remainder are held by the complainant trust company for ihe purpose of taking up a prior mortgage made by the same company and secured upon the same property. The property mortgaged embraces all of the property of the mortgagor company, including its street franchises, rights of way, leases, contracts, iron rails, street cars, and equipments of every kind and character. The bill alleges, and the fact is, that ihe value of the property mortgaged consists principally in its street franchises and rights of way; that, aside from the value of the iron rails, forming a fixed track upon the streets of the city, the rolling stock and other equipment of the company is of comparatively small value, and wholly insufficient, if removed from the streets of Cincinnati, to secure the bonds outstanding. The bill alleges that the defendant, the city of Cincinnati, denies the right of said Oincinnati Inclined Plane Railway Company to further occupy the streets of the city with is rails and equipment, and claims that the said railway company .is a trespasser upon the streets mentioned in the hill and is unlawfully maintaining and operating its line of street railway thereon, and through its officers and agents threatens to remove said tracks and appliances for the operation of the cars thereon, and to grant the right to use the same to a rival company holding and operating a parallel competing line in said city. The bill charges that the actings and doings of the said defendant are wholly unlawful and contrary to equity and good conscience; that they are very hurtful to said railway company’s credit and business, and'tend greatly to depreciate its bonds in the market and destroy the security thereof, and thereby cripple it in its ability to serve the public; and.that, if permitted to remove its tracks from the streets, as it threatens to do, it wiil almost wholly destroy the security conveyed to the complainant, and upon the faith of which the bonds of the said company have been negotiated. The bill sets out the charter and other provisions made by the legislature of Ohio and the ordinances of the city of Cincinnati under which the s'aid inclined plane railway company claims a right to continue the exercise of its franchises as a street-railway company upon the streets of Cincinnati, and insists that its said street rights are perpetual, or are at least for a term not yet expired, and prays that the city be restrained from its threatened acts of destruction, and from granting to any other company the street franchises lawfully owned and exercised by the said mortgagor company. The answer of the city is in substance an assertion that the street rights of the said inclined plane railway company were either invalid, as having been granted without authority, or have expired by limitation, and insists that the said company no longer has any legal right to occupy the streets in controversy with its tracks, equipments, etc. It sets out that this contention has been heretofore the subject of a direct litigation between the city and the mortgagor corporation, and that in said suit it has been determined finally that certain of the street rights claimed had expired by limitation, and that certain other street grants claimed had never been lawfully granted and were void; that in said suit it was adjudged that the said company had no longer a right to occupy the controverted streets against the will of the city; and that an injunction had been awarded to prevent the further occupation thereof, 'though this injunction had been suspended until further direction of the court. The decree thus relied upon as an answer to the bill of the complainant was pronounced in the case of City of Cincinnati v. Cincinnati Inclined Plane Ry. Co., at a general term of the superior court of Cincinnati, and is reported in 30 Wkly. Law Bui., at page 321 et seq. An appeal was taken from that decree to the supreme court of Ohio, and there affirmed, “for the reasons stated in the opinion of the superior court.” See 52 Ohio St. 609, 44 N. E. 327. The answer further insists that, whether the United States courts are obliged to follow the opinion of the supreme court in the case cited or not, the conclusions therein reached were right and proper, and that, if this court shall exercise an independent judgment in respect to the validity, extent, and duration of the street franchises claimed by the inclined plane railway company, the opinion of the supreme court of the state properly interprets the street contracts of that company, which is therefore a trespasser upon the streets, and subject to be removed as such. Upon the final hearing the circuit court dismissed the bill. 73 Eed. 716.</p>

<p>1. Water Companies — Establishment of Rates.</p> <p>No corporation appropriating water under and by virtue of the constitution and laws of California for sale, rental, or distribution has the right to exact any sum of money or other thing in addition to the legally established rates, as a condition upon which it will furnish to consumers water so appropriated.</p> <p>2. Same — Rights op Consumer.</p> <p>Since by Civ. Code Cal. a consumer whose right to demand a supply of water from a company has once vested is protected from the injury of having his supply cut off, he may prevent, by injunction, if need be, the distributor from disposing of it to others beyond the capacity of the system.</p> <p>8. Same.</p> <p>Should the rates iixed by the county board of supervisors for the sale, rental, or distribution of water appropriated for those purposes, as provided by Act Cal. March 12, 1885, be unreasonable, a person aggrieved may have the rates annulled by the court, and the question be again remitted to the board.</p> <p>4. Same.</p> <p>Where water is appropriated and furnished by a public or quasi public corporation, the water being charged with a public use. the rates must be established in pursuance of law, and no attempt to fix them by private contract with consumers is of any validity.</p> <p>8. Same.</p> <p>Since Act March 12, 1885, provides that, in case of failure of tiie board of supervisors to establish rates for furnishing water as provided in the act, the rates established by the company shall control, the latter is not divested of the power to so fix rates by the fact that before the passage of the act it contracted to furnish water at a lower rate, the persons with whom it so contracted being chargeable with notice that the constitution conferred power upon the legislature to prescribe the manner in which such rates should be established.</p>

<p>1. National Banks.</p> <p>A national bank lias power to borrow money on call for the purposes of its business.</p> <p>S. Same — Authority oe President — Borrowing Money.</p> <p>A vice president of a national bank, who is the acting president, may, in conformity with established custom, without special authority from, the board of directors, borrow money on behalf of the bank from another bank. Bank v. Armstrong, 14 Sup. Ct. 572, 152 -U. S. 346, distinguished.</p> <p>S. Same.</p> <p>A bank dealing with the chief executive officer of another hank has a right to trust in his integrity, and transact business with him accordingly, there being nothing in the known state of the affairs of his bank or his relations to it to excite suspicion.</p>

<p>This was an action by Anderson R. Lamburth against the Winchester Avenue Railroad Company to recover damages for personal injuries. The case was heard on demurrer to the complaint.</p>

<p>In Error to the United States Court in the Indian Territory.</p>

<p>1. United States Commissioner — Pees.</p> <p>A commissioner is entitled to the legal fee for a written order to a jailer for the release of a prisoner on bail.</p> <p>2. Same — TránsPrípt.</p> <p>Where proceedings are had before the commissioner, under Rev. St. § 1014, agreeably to the usual mode of proceedings against offenders in the state, and the offender is imprisoned or bailed for trial, the commissioner is entitled to fees for a transcript of proceedings returned into the clerk’s office of the court having cognizance of the case.</p> <p>8. Same — Reducing Evidence to Writing — Practice.</p> <p>It is important that a commissioner should write out the testimony taken before him in preliminary examinations, and he is entitled to fees therefor as an examining magistrate.</p>

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

<p>1. Review of Judgment — Appeai,—Whit of Error.</p> <p>Judgments of the circuit courts in suits against the United States, under the act of March 3, 1887, may he reviewed in the circuit courts of appeals, either by appeal or by writ of error. Chase v. TJ. S., 15 Sup. Ct. 174,155 U. S. 489, followed.</p> <p>2. Same — Review of Finding of Facts.</p> <p>In such cases the question whether the findings of fact made by the lower court support its conclusions of law may be reviewed by the circuit courts of appeals, without exceptions taken, upon seasonable assignments of error.</p> <p>6. District Attorneys — Extra Services — Compensation.</p> <p>The acts of congress regulating the pay of district attorneys impose three conditions precedent to the recovery of any extra compensation: (1) The services must be such as he is not obliged to perform; (2) extra compensation must be authorized by law; and (S) there must be an appropriation expressly therefor.</p> <p>4. Same.</p> <p>A district attorney is not entitled to extra compensation for services rendered by direction of the attorney general, in examining the titles to sites for public buddings, in taking depositions in his district in an action pending in another district, in defending officers of the army in suits against them for acts done in the line of their duties, or in preparing briefs in or arguing cases to which the United States is a party.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri.</p> <p>The United States filed in the district court ol' the United States for the Eastern district of Missouri an information to forfeit certain packages of liquors and wines described in the Information for alleged violation of section 3449 of the Revised Statutes of the United States, which reads as follows: ‘‘Whenever any person ships, transports, or removes any spirituous or fermented liquors or wines, under any other than the proper name or brand known to the trade as designating the kind and quality of the contents of the casks or packages containing the same, or causes such an act to be done, he shall forfeit such liquors or wines, and casks or packages, and be subject to pay a fine of five hundred dollars.”</p> <p>William C. Richardson, public administrator for the city of St. Louis, in charge of the estate of Lehman Meyer, deceased, the claimant of the property, filed a, demurrer to the information, which was overruled in an opinion as follows (Thayer, District Judge):</p> <p>“Section 3449, Rev. St. U. S., which first appears as a proviso to section 29, Act July 13, 1866 (14 Stat. 156), was designed to prevent a fraudulent evasion of the internal revenue laws. Congress acted upon the assumption that persons engaged In the manufacture or sale of spirituous and fermented liquors would be prevented to some extent from putting illicit goods upon the market, and that officers of the revenue would be aided somewhat in the discharge of their duties if dealers were required to brand all casks and packages containing spirituous liquors which they shipped or removed from one place to another with the true name by which they were known to the trade. The purpose was to make the exterior of every cask or package containing distilled spirits, when shipped, speak the truth with reference to its contents. Congress intended to prohibit dealers, and manufacturers from resorting to any artifice whereby the. contents of packages containing spirituous liquors might be concealed or disguised by the name under which the package was branded. It is easy to conceive how the enforcement of this provision of the law might operate to some extent to prevent fraud and to insure a faithful collection of the duties imposed by the government on distilled spirits. Such beiug the purpose of congress, it is quite immaterial (and it does not affect the validity of the statute in question) that the statute as framed also has some tendency to prevent private frauds. U. S. v. Loeb, 49 Fed. 636. See, also, Opinion of the Attorney General, 22 Int. Rev. Rec. p. 261, and Commissioners’ Decision, 30 lilt. Rev. Rec. p. 278. It cannot he denied that the facts stated in the informations bring the cases within the language of section 3449. Boxes or cases containing spirituous liquors in bottles appear to have been shipped, which boxes or cases were not so branded or marked as to indicate the true character of the liquors contained therein as they were at the time known to the trade. It is evident that when bottles containing spirituous liquors are inclosed and shipped in boxes or cases, there is as much necessity for requiring the boxes to be correctly branded, so as to Indicate their contents, as when liquors are shipped in casks. We may readily conceive how the purpose which congress evidently had in view might be defeated by putting liquors in bottles, and inclosing them in boxes, if dealers were permitted to make shipments in that form without properly branding the boxes. Upon tbe whole the court concludes that the demurrer and the motion to quash should be overruled.”</p> <p>After th.e demurrer was overruled, the claimant filed an answer. The case was tried'below upon the following agreed statement of facts:</p> <p>“That the one hundred and twenty-seven packages of spirituous liquors and the five packages of wine mentioned in the information herein and sought to be forfeited to the United States did, in fact, contain spirituous liquors and wines, respectively. That the said spirituous liquors .and wines contained in said packages were compounded and prepared at the establishment of the Western Distilling Company, a corporation doing a distilling and rectifying business at Number 201 North Main street, in the city of St. Louis, Missouri; and that said liquors and wines, after being so compounded, were put into bottles marked and branded as hereinafter stated, and that said bottles were packed in one hundred and thirty-two eases or crates, which are the packages mentioned herein, and that the said packages were respectively marked and branded as hereinafter stated; that is to say: Fifteen of said packages and the bottles therein contained were marked and branded as containing ‘X & F. Martell Cognac.’ Thirty-nine of said packages and the bottles therein contained were marked and branded as containing ‘Booth and Company London Superior Old Tom Gin.’ Forty of said packages and the bottles therein contained were marked and branded as containing ‘Sir Robert Burnett and Company Vauxhall Old Tom Gin.’ One of said packages and the bottle therein contained was marked and branded as containing ‘John De ICuyper and Son Gin.’ Eight of said packages and the bottles therein contained were marked and branded as containing ‘Boonekamp Maagbitter.’ Ten of said packages and the bottles therein contained were marked and branded as containing ‘Farnet Branca.’ Four of said packages and the bottles therein contained were marked and branded as containing ‘Noilly Prat & Cie. Vermouth.’ One of said packages and the bottle therein contained was marked and branded as containing ‘Italy Vermouth Torino.’ Four of said- packages and the bottles therein contained were marked and branded as containing ‘Curacao de Holland.’ Five of said packages and the bottles therein contained were marked and branded as containing ‘Eduard Pernod Absinthe.’ Four of said packages and the bottles therein contained were marked and branded as containing ‘Boker’s Stomach Bitters.’ One of said •packages and the bottle therein contained was marked and branded as containing ‘Yellow Chartreuse, L. Gamier.’ That the several names and brands hereinbefore mentioned, and which were marked upon said packages, were each a name and brand known to the trade as designating a particular kind and .quality of imported spirituous liquor or wine, and that the contents of said packages were respectively of the same generic class as the liquor or wine known to the trade under the name and brand marked upon the package'. containing the same; that is to say, the packages bearing the mark ‘Booth and Company London Superior Old Tom Gin’ contained gin, and the packages marked ‘X & F. Martell Cognac’ contained cognac brandy, etc., etc.; bu.t that the spirituous liquors and wines contained in said packages respectively were not the specific kind and quality of spirituous liquor or wine known to'the trade by the name and brand marked upon said packages, respectively, but differed from the spirituous liquors and wines known to the trade under said marks and brands, respectively, in taste, and in.inferiority in quality of excellence. That the marks ‘X & F. Martell Cognac,’ etc., are trade-marks known to the trade, indicating the soul-ce of manufacture; that the goods contained in the various bottles were lawfully compounded. That the several packages mentioned in the information herein, bearing the marks and brands above stated, were, between the 18th day of May, 1803, and the 12th day of October, 1893, transported in drays or wagons by the St. Louis Drayage Company, a common carrier in the city of St. Louis, from the distillery and rectifying establishment of the Western Distilling Company at 201 North Main street, St. Louis, Missouri, to the warehouse of the St. Louis Drayage Company, number 407 South Main street, St Louis, Missouri, said warehouse being a public warehouse under the control of said drayage company, and used by it as a place of deposit for goods intended for shipment by rail or river; and that said packages were deposited in said warehouse for. the purpose of being shipped thence by railroad or river to purchasers or consumers.- That said packages were seized by Charles F. Wenneker, collector of internal' revenue for the First collection district of Missouri, as forfeited to the United States under the provisions of section 3449 of the Revise'd Statutes of the United States; that said seizure was made on the 9th day of November, 1893; on land, at the Eastern division of the Eastern judicial district oí Missouri, and that proceedings to enforce said forfeiture were commenced on the 17th day of November, 1893, and that said packages of liquors and wines were held in the custody of sn.id Charles F. Wenneker, collector, under said seizure at the time of beginning said proceedings, and that said packages were taken into the custody of the marshal upon process issued herein by this court.”</p> <p>The lower court rendered judgment in favor of the claimant, and the United States sued out this writ of error.</p>

<p>' Appeal from the Circuit Court of the United States for the Northern District of Illinois, Northern Division.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This suit was brought to enjoin the use of the appellant’s trade-name, “Pet-tijohn’s California Breakfast Food,” applied to the manufacture of rolled wheat. The bill charged that in the year 1889 three brothers of-the name of Pettijohn (William A., Lawrence W., and Samuel R.) commenced the manufacture of rolled wheat at Minneapolis, Minn., selling their product under the name of “Pettijohn’s California Breakfast Food." This business was continued until November, 1890, when it was sold to a corporation, Petti-john California Breakfast Food Company, which succeeded to the business, and continued to manufacture the product at that place, and to sell the same under the same name. The corporation erected or leased a mill in Minneapolis, operated It, and acquired from the three Pettijohns all their rights 1o the use of the name “Pettijohn” and “Pettijohn’s,” the word “California.” and the words “Breakfast Food.” This business, wiih its machinery and good will and trade-name, was sold to the appellee in October, 1893. who continued the business as successor, selling rolled wheat under the same name, in packages of the same size and shape, and under the same labels, with such changes as were necessary to indicate that the American Cereal Company was the proprietor. On January 7, 1,894, the mill was destroyed by fire, since which time the appellee has manufactured this product at other milis owned by it, disposing of the product under the same name. Eli Pettijohn, the father of the three brothers named, came to the city of Minneapolis from his home in the state of California in the autumn of 1893, and, after the destruction of the appellee’s mill by fire, in connection with certain other persons organized a corporation for the manufacture and sale of rolled wheat, and placed upon t:he vessels containing the product the trade mark and name “Mi Pettijohn’s Best,” accompanied by a picture of 3Ji Pettijohn. It is alleged in the bill that at this time the name of Pettijohn was not known in the United States of America in connection with any cereal food product other than the rolled wheat which was first made by William A. Pettijohn and his brothers a.t Minneapolis, and by their successors in that business, except that it is alleged that, some rolled wheat had been niade in the state of California, and in other parts of the United States west of the Rocky Mountains, under the name of “Peltijohn’s California Breakfast Gem,” and that the name “Pettijohn,” used in connection with rolled wheat, has come to indicate and mean to purchasers and consumers east of the Rocky Mountains the rolled wheat made by the appellee.</p> <p>The answer asserts that rolled wheat was first invented and made known by Eli Pettijohn, the father of the three brothers mentioned, who originated the article and commenced its manufacture at San Francisco in 1877, since which time he has continued to manufacture and sell the product under his own name and under various trade-names, and that MU Pettijohn instructed his sons in the manner of making such product, and suffered and permitted them to make and sell the same at divers times and places for Iris a.nd their benefit; that, at the time of the organization of the appellee, Eli Pettijohn was part owner in the Pettijohn Manufacturing & Milling Company, which operated a mill at Oakland, Cal., manufacturing and selling rolled wheat under the trade-names of “Pettijohn’s Breakfast Food" and “Pettijohn’s Breakfast Pearls”; that Eli Pettijohn first applied the name “Pettijohn” to rolled wheat in 1877, in San Francisco; that he continued to sell the product under the name of “Pettijohn’s Boiled Wheat” until the year 1880; that in 1884 he resumed the manufacture of rolled wheat in San Francisco under the name of “Pettijohn’s Pearled Boiled Wheat,” which was afterwards changed to “Pettijohn’s Breakfast Gem,” and that he continued the manufacture and sale of the product under that name until September, 1889; that in February. 1892, Eli Pettijohn again resumed the manufacture and sale of that product in San Francisco, and so continued until November, 1892, when he removed to Oakland, and there manufactured the same product, and sold it under the name of “Pettijohn’s Breakfast Gem,” “Pettijohn’s Breakfast Food,” and “Pettijohn’s Breakfast Pearl”; that such wheat product-had acquired a wide and valuable reputation under the name of “Pettijohn,” and was in good demand in all that part of the United States west of the Rocky Mountains, and that tlxis reputation was created and acquired by and through the efforts of Eli Pettijohn; that in September, 1889, William A. Pettijohn, his son, -who was associated with him in business, sold to one Bauineister, of San Francisco, the right to make and sell rolled wheat under the name of “Pettijohn’s Breakfast Gem,” together with a certain interest in the business of Eli and William A. Petti john, and that Laumeister has since that date, and particularly since he acquired the entire interest of that concern, manufactured and sold rolled wheat under that name not only west of the Boeky Mountains, but also in the city of New York, and that the name “Pettijohn,” used in connection with rolled wheat prior to the incorporation of the' appellee, did not refer exclusively to the product of the appellant and his predecessor, but referred to the product made by Eli Pettijohn in San Francisco, by the Pettijohn Manufacturing & Milling Company in Oakland, and by Laumeister manufacturing both at San Francisco and in New York; and that the name was and is descriptive of the product, and indicated rolled wheat prepared by the Pettijohn process. The answer further states that Eli Pettijohn has been connected with the appellee as stockholder and director, and except for about six months,' when he was absent in California, he had always been in advisory relations with, and in supervision of the product manufactured by, the appellee; that Eli Pettijohn’s process consisted in subjecting wheat for food purposes to the rpller process in such condition as to flatten, but not disintegrate, the grain; that prior to the year .1877, when the thought was conceived by Eli Pettijohn, no similar product of wheat had ever been made or sold.</p> <p>The suit was brought in the superior court of Cook county, Ill., and thence removed into the circuit court of the United States for the Northern district of Illinois, and on the 28th day of March, 1896, an order was entered dissolving an injunction pendente lite issued in the cause while it was pending in the state court. From that order this appeal is taken. The opinion of the court below will be found recorded in 72 Fed. 903, to which reference may be had for a fuller statement of the facts.</p>

This was a libel in rein by Casimir Thoron against the steamer Mississippi. (Thomas F. Oates, claimant) to recover for damage to ai consignment of oleo stearine, shipped as "tallow,” under a through bill of lading, from Paris, transshipped at London, for New York, upon the steamship Mississippi. The trade-name for stearine in Prance is pressed -fallow. The steamer arrived on July 3d, her arrival being known to the libelant.

<p>1. Shipphstg — Liability of Owner for Master’s Tort — Abduction—Involuntary Service.</p> <p>Claimants were employed by the master of a Mississippi steamer to unload freight at Helena. While awaiting payment for their services, the boat, by authority of the master, was loosed from her moorings. Claimants were forced to remain on board, and compelled to involuntary service, under threat of bodily harm if they attempted to leave. Claimants escaped at different times, and on returning home each filed his libel against the boat. Held, that the owner of the vessel was liable for this act of the master, upon the grounds (1) that it was breach of the contract of hiring; and (2) that it was a tort of the master, committed within the general scope of his employment. Sunday v. Gordon, Fed. Cas. No. 13,-616, disapproved.</p> <p>2. Costs in Admiralty — Docket Fees — Separating Claims.</p> <p>Where separate claim's and demands are filed, which could, and properly should, be united, all the causes of action being proven by the same witnesses in the same depositions, all the parties appearing by the same attorneys, and the causes covered by one final decree, it is error for the court to allow more than one docket fee provided for by statute (Rev. St. § 821).</p> <p>8. Costs — Motion to Retax.</p> <p>In reviewing the action of the court below in overruling a motion to retax costs, the circuit court of appeals will not consider an objection which was not specified in such motion.</p>

<p>Maritime Liexs — State Statutes.</p> <p>Liens created by state statutes for repairs or supplies to a vessel at her home port merely operate to render rebuttable the presumption imposed by maritime law that credit is given to the owner personally. This lien is not implied, but must rest upon a mutual contract which contemplates a credit upon the res. Express terms to that effect are not in all cases essential, but may be implied, when clearly pointed out by circumstances.</p>

Bill in equity by the Third National Bank of Pittsburg against Amos H. Mylin, auditor general, and Samuel M. Jackson, treasurer, of the commonwealth of Pennsylvania. Defendants interposed a plea to the jurisdiction of the court.. The Third National Bank of Pittsburg was organized .Time 3, 1864.

Action commenced in the superior court of the state of Washington, and removed to this court by the defendants. After his appearance in this court, the plaintiff filed a special plea to the jurisdiction, controverting the allegations of the petition for removal as to the citizenship of the defendants.

At Law. Action to recover money deposited in an insolvent national bank, commenced in the superior court of the state of Washington for Spokane county, and removed to this court by the defendants.

Upon petition of Yernon Harrison Hartley, a minor, claimant for one-lialf of the estate, as the duly-recognized illegitimate son and heir of M. D. Foley, deceased. John D. Foley et al., contestants. Motion of John T). Foley et al. for an order of court to set the matter of contest herein for trial without a jury, on the ground that said matter is a proceeding in equity and not an action at law.

<p>Removal of Causes — Local Prejudice.</p> <p>Defendant railroad company submitted affidavits showing that a few years previously there was a bitterly contested litigation between, its predecessor in the possession of the road and the city in which the cause was to be tried; that during this litigation there was almost a riot; that several of the servants of such predecessor were arrested in consequence of the litigation, and that litigation still existed between itself and said city; and a number of respectable and disinterested witnesses testified that defendant could not obtain justice in that county, and that a prejudice against corporations existed there. Held, that it was proper to order the removal of the cause under Act March 3, 1887, though a number of witnesses testified that defendant could obtain justice in that locality.</p>

<p>Appeal — After Mandate.</p> <p>Mandamus will issue to direct the execution of a judgment of the circuit court of appeals, notwithstanding a second appeal for matter arising previous to that judgment.</p>

<p>Appeals — Election of Remedies — Act March 8, 1891 — Practice.</p> <p>By Act March 3, 1891, a party seeking to appeal is not put to an election of remedies where a constitutional question arises, but has a right to raise such question by a resort to the supreme court, under the fifth section, and, while such appeal is pending, to avail itself of the defenses permissible under the sixth section by an appeal to the circuit court of appeals; but the latter court will continue the cause to await the decision of the supreme court. McLish v. Roff, 12 Sup. Ct. 118, 141 U. S. 661, distinguished.</p>

<p>1. Jurisdiction or Federad Courts — Enjoining Collection or State Taxes.</p> <p>Where a state has provided for suits against its treasurer for taxes claimed to be illegal (Pol. Code Cal. § 8669), such a suit, even if it be considered as a suit against the state, may be brought in a federal court when other jurisdictional facte exist, although the statutory provision may only apply to suits in the state courts.</p> <p>2. Constitutional Law — Taxation-Situs of Railroad Rolling Stock — Interstate Commerce.</p> <p>It is no objection to the imposition of a state tax upon railroad rolling stock used partly within the state that the same is engaged as a vehicle of interstate commerce, or that its legal situs is in another state or territory, where taxes on it have been paid.</p> <p>8. Same.</p> <p>The constitution of California, which provides that “all property of the state not exempt under the laws of the United States shall be taxed,” etc., and declares that “property,” as hero used, includes moneys, credits, etc., “and all matters and things, real, personal and mixed, capable of private ownership,” applies to and includes rolling stock used partly ip the state, but belonging to a corporation of another state,' whose property is operated under a lease.</p>

Cross Appeal from the Circuit Court of the United States for the Western Division of the Western District of Tennessee. Th is is a bill in equity to enforce the specific performance of certain covenants in a lease, and for the collection of rents in arrear.

<p>Diversion of Water — Preliminary Injunction.</p> <p>Preliminary injunction to restrain the diversion of water from a river will not tie granted when it does not appear that sufficient water would not he left for plaintiffs’ uses as ordinary riparian proprietors, nor that substantial injury would accrue, which could not he well compensated for at law.</p>

<p>Corporations — Receivers’ Certificates — Priority of Liens.</p> <p>In the case of an insolvent private corporation the court will not order receivers’ certificates to be issued for the purpose of raising money to pay interest on the bonds of the company, thus displacing existing liens. Farmers’ Loan & Trust Co. v. Grape Creek Coal Co., 50 Fed. 481, followed.</p>

<p>Foreign Corporations — Compliance with Local Laws — Surety Bonds.</p> <p>A surety bond taken as security for the conduct of an agent of a foreign corporation which undertakes to do business in Pennsylvania without complying with the requirement of the second section of Act April 22, 1874, that a statement showing the title and object of the corporation, the location of its officers, and names of its agents, etc., shall be filed in the office of the secretary of the commonwealth, is invalid. 74 Fed. 597, affirmed. Thorne v. Insurance Co., 80 Pa. St. 15, and Johnson v. Hulings, 103 Pa. St. 498, followed.</p>

<p>1. Trial — Instructions—Province of Jury.</p> <p>Where sufficient evidence has been adduced upon which a finding may reasonably be based, the court cannot withdraw the issue from the jury, but must require them to ascertain from the evidence the truth as to the facts.</p> <p>2. Sale — Collateral Warranty.</p> <p>Where a warranty is part of a transaction of sale, no separate consideration is necessary to support it.</p>

This was an action by Hector De Castro against the Compagnie Francaise du Telegraphe, de Paris fi Hew York, a foreign corporation. Defendant appeared for the purpose of moving to set aside the service of the summons, and to stay all proceedings.

<p>Contract of Sale — Damages for Breach.</p> <p>The measure of damages for refusing to accept and pay for the subject of a. contract of sale is the difference between the contract price and the market value at the time when it should have been accepted, less expenses which the seller was saved by such refusal.</p>

<p>Wills — Technical Words — Intent—Presumption.</p> <p>Testator devised a certain estate, “to have and to hold to the said E. and the heirs of her body,” followed by a provision that, if any of the children of E. should marry into a certain family, the share of the child or children so marrying should go to the other children. Held, (1) that E. took an estate tail, the presumption being that the words were used in their technical sense; (2) that the proviso as to the children did not present such an unequivocal intent to limit E. to a life interest as to rebut such presumption. 68 Fed. 513, affirmed.</p>

The plaintiff below, C. H. Morgan, sued the defendant below in the circuit court of Shelby county, Tenn., in March, 1895, for negligence which occurred in November, 1891, and which negligence is alleged to be the direct and proximate cause of an injury to the plaintiff, by reason of which his leg was amputated. The neglect alleged upon the part of the railroad company was the failure to furnish a safe and suitable switch engine.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This was an action for personal injuries. J. R. Miller, the defendant in error, who was the plaintiff below, sued the Chicago, Burlington & Quincy Railroad Company, the plaintiff in error, for damages sustained by the derailment of one of its trains near Tower Station, in Boulder county, Colo. The derailment of the train was alleged to have been occasioned in the following manner: Because the engine which was hauling the train at the time of the accident was old and worn, and could not hold the train when it was descending a steep grade; also because the brakes on the cars composing the train were out of repair; a.nd, furthermore, because a safety switch, which led to a switch bade, was out of repair, and could not be used on the occasion of the accident to let the train into the switch back.</p> <p>Among other defenses which were pleaded by the defendant company to the plaintiff’s petition, was the following: “For a third and separate defense the defendant alleges: That, prior to the time of the accident complained of, the defendant and its employés organized an association for the relief of employes of said company injured while in the service of said defendant, and for other purposes,' known as ‘The Burlington Volunteer Belief Department,’ which was a department of the defendant company; that said association thus formed was a department for the protection and relief of the employés injured in the service of said company, and provided for the payment of certain sums of money for injuries received, and in ease of sickness, disability, or death from any cause while in the service of said company, and for care and maintenance, under certain specifications, terms, and conditions provided for in the organization and rules of the said relief department, and that membership in said department was voluntary; that at and prior to the time of said injury, to wit, in the month of May, 1890, the plaintiff had made application for membership of said association, and became a member thereof, and continued to be a member thereof at the time of the injury sustained by him on the 22d day of August, 1890, and that the plaintiff, as a condition of his membership, in his said application promised and agreed to and with the said company, in consideration of certain amounts which had been and were to be paid by the said company for the maintenance of the relief department, that the acceptance of benefits from the said department for injury should operate as a release and satisfaction of all claims for damages against the defendant company arising from or out of such injuries; that the said plaintiff has subsequently received and accepted the benefits due to him by reason of his membership in said relief department on account of the injury complained of by him in his complaint herein, and the defendant company has paid to the plaintiff the amount of the benefits due to him by reason of his membership in the said relief department on account of said injury, and the same have been received by the plaintiff as benefits accruing to him by reason of said injury on account of his membership in said association. And, more particularly, the defendant alleges that there was paid by the said relief department to the said plaintiff, on account of said injury, benefits to the amount of $24.50, being the amount due for 49 days next after the 22d of August, 1890, at the rate of fifty cents a day, which was the rate to which the plaintiff was entitled as a member of said relief department; and there was also paid by sa.id department the sum of $43 to certain physicians for care and surgical attendance upon the said plaintiff, and that the said relief department did all on its part to be done for and in behalf of the said plaintiff by virtue of his membership in the said department; whereby the defendant was released from any and all claims for damages against the defendant company arising in any way out of the injury of which he complains in his •said complaint.”</p> <p>The circuit court sustained a demurrer to the foregoing plea. There was a trial before a jury of the remaining issues raised by the pleadings, which resulted in a judgment in favor of the plaintiff below. To reverse that judgment. the defendant below sued out a writ of error.</p>

<p>1. Appeal — Specifications op Error.</p> <p>It is unnecessary and cumbersome 1o give, in a specification of error, the reasons why the ruling complained of is claimed to be erroneous, or to state the fact that the x>arty duly objected and excepted to such ruling, and to further give the grounds of objection.</p> <p>3.Negligence — Instructions—Questions of Law and Fact.</p> <p>It is error to instruct a jury that “it was incumbent on the plaintiff to establish by a preponderance of evidence the alleged negligence, or such parts or portions thereof a.s may constitute a cause of action”; and, where nothing in the charge explains upon what allegations of negligence there may or may not be a recovery, the error is not cured or immaterial.</p> <p>3. Same — Master and Servant — Railroad Companies — Defects in Foreign Oaks — Fellow Servants.</p> <p>Where a railroad company receives in its yard a car of another railroad, and such car is examined, and notice given that it is defective and is to be returned, the company has fulfilled its duty in regard to the car, and is not liable for injuries resulting from such defect, which an employe receives while the car is being shifted about the yard; the negligence in such case, if any, being that of his fellow servants.</p> <p>4. Same.</p> <p>A railroad company is only required to use reasonable care in examining a foreign car coining into its yards, and is not under a duty to examine it with “sufficient, care” to a,«certain whether it is in safe condition for use by its employes.</p> <p>5. Practice — Motion to Direct Verdict — Assignment of Error.</p> <p>A motion to direct a verdict need not be made in writing, and does not require any such accuracy of expression as a request for instruction upon a proposition of law; and an assignment of error on the ruling upon such a motion is not governed by the provision of rule 11 of the circuit court of appeals for the Seventh circuit (11 O. O. A. cii., 47 Fed. vi.), concerning instructions given or refused.</p> <p>6. Same — Request to Charge.</p> <p>The right to assign as error the refusal of a request to instruct the jury to bring in a certain verdict is not waived by presenting other requests to charge after the first has been refused.</p>

<p>This was an application for an order of deportation against Suey Sun as an unregistered Chinese laborer.</p>

<p>Chinese Laborer — What Constitutes — -Registration—Deportation.</p> <p>A Cbinaman who was a peddler at the time of the passage of the act of May 5, 1892 (27 Stat. e. 60), relating to registration of Chinese laborers, but who ceased peddling and became a member of a trading firm prior to the passage of the act of November 3, 1893 (2S Stat. c. 14), which includes Chinese peddlers, etc., in the term “laborers,” is not a laborer and liable to deportation for want of registration.</p>

<p>Customs Duties — Classification—Manufactures of Silk.</p> <p>Drapery net, consisting of a silk fabric having a foundation of plain net with embroidered figures, was dutiable as manufactures of silk, or of which silk is the component material of chief value, not specially provided for, under paragraph 414 of the act of 1890.</p>

This was an application by the United States for a review of a decision of the board of general appraisers reversing the action of the collector in classifying for duty certain merchandise.

<p>Customs Duties — Construction or Laws — Fkesii Fish.</p> <p>In the tariff act of August, 1894, the free list (paragraph 481) enumerates, “Fish, frozen or packed in ice fresh.” The schedule relating to dutiable fish enumerates (paragraph 210), “Herrings, pickled, frozen, or salted, and saltwater fish frozen or packed in ice, one-half of one cent per pound.” Held, thiii, under the rule of construction requiring each part of a law to be made effective if possible, the paragraph in the free list must be held as generic, and paragraph 210 as exceptional or specific; consequently salt water fish, fresh and packed in ice, are dutiable under paragraph 210. 70 Fed. 775, affirmed.</p>

<p>Patents fob Inventions — Infringement—Brick Machines.</p> <p>Letters patent No. 315,855, issued April 4, 1885, to Albert D. Thomas; No. 324,453, issued August 18, 1885, to John J. Brewis; No. 375,660, issued December 27, 1887, to Albert D. Thomas; and No. 395,871, issued January 8, 1889, to John J. Brewis, — for improvements in brick machines, which operate by filling and compressing pulverized clay in plungers that approach each other with varied relative motions, are not infringed by a device which, while accomplishing the same result in much the same way, Is mechanically different from the patented machines.</p>

This was a' suit in equity by Seabury & Johnson against Johnson & Johnson for alleged infringement of letters patent No. 390,314, issued October 2, 1888, to Charles EL Shaw, for an improvement in disinfectants.

<p>This was a libel by the owners of the schooner Ben Hur against the steam barge Passaic and her tows, the barges Elma, Hattie, ■Jenness, and Superior, to recover damages for a collision which resulted in the sinking of the Ben Hur.</p>

<p>On Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was a suit in equity by the Royal Baking-Powder Company against George E. Raymond for alleged infringement of a trade-mark. After a final hearing on ihe merits, a decree was entered for complainant (70 Fed. 376), and the defendant has appealed.</p>

<p>Appeals from the Circuit Court of the United States for the District of Rhode Island.</p>

This was an action of trespass on the case in assumpsit in the circuit court of Wood county, W. Va., by Ellen M. Hill against the Supreme Lodge of Knights of Pythias of the World, to enforce the payment of a policy of life insurance issued by the endowment rank of that order upon the life of Arthur E. Hill, in favor of the plaintiff. By petition of the defendant the case was removed to the circuit court of the United States for the district of West Virginia,.

<p>Costs in Equity — Master’s Pees.</p> <p>A defendant who successfully defends himself upon an accounting before a master, so that only nominal damages are awarded against him, will not be required to pay any part of the master’s fees. As the result of the litigation shows that he has been needlessly harassed, it would be inequitable to require him to share the expense thereof.</p>

<p>Equity — Demurrer—Sufficiency of Bill.</p> <p>A bill is good on general demurrer, although it may contain redundant or superfluous matter, where its allegations show that defendants obtained possession of complainant’s property, agreeing to accomplish a certain object; ■ that they violated this agreement, converted his property to their own nsn, so manipulated it that they made personal gains, and refused to return either the original property or the profits, the amount of which is unknown.</p>

This ease was removed by the appellant, the insurance corupany, to the circuit court of the United States for the district of South Carolina. It is a bill in equity, originally filed in the court of common pleas for Greenville county, S. C., to correct an error in a verdict and judgment in that court in a case there tried, in which the Pelzer Manufacturing Company, the appellee, was plaintiff, and the Hamburg-Bremen Fire Insurance Company, the appellant, was defendant.

<p>1. Fraudulent Conveyances — Preferred Creditor.</p> <p>J. was in embarrassed circumstances, and Ms creditors were urging Mm to . secure tbeir claims. He was indebted to Ms son for services actually rendered at a stipulated price while he was solvent. J. voluntarily executed his note, secured by a deed of trust of his personal property, in favor of Ms son. Bold a valid transaction.</p> <p>2. Same — Debt Due to Minor Son.</p> <p>In such case, a bond given by the father to secure a debt to his son is not fraudulent because a part of the services were performed while the son was a minor.</p> <p>0. Same — Statute of Limitations.</p> <p>A deed tiras executed by tlie father to secure the son Is not void because a part of such debt is barred by the statute of limitations.</p> <p>4. Same — Preferred CredItor — Virginia Laws.</p> <p>Under the laws of Virginia it is not fraudulent for an insolvent debtor to prefer one creditor over another, even where the secured creditor knows of the insolvency of ihe debtor. Citing Dance v. Seaman, 11 Grat. 782.</p> <p>5. Same — Fraud of Grantees — Inadequate Consideration.</p> <p>.T., while insolvent, and pressed by creditors for payment, conveyed certain properly lo his two sons and a son-in-law. The deed was made at J.’s home, in the absence of and without the knowledge of the grantees, who subsequently assented verbally to its provirions. The consideration expressed was less than half the value of tlie property, and said to be part cash, part as security for debts due the grantees, and part for a debt of the grantor assumed by the grantees. No money was in fact paid; the grantees had not demanded security for any debts; they had not, in writing, assumed to pay any debt of the grantor to a third party, nor were they persons of .means. Held, (1) that the grantees were not purchasers for value without notice; (2) that the deed was fraudulent and void.</p>

The Richmond & Danville Railroad Company was a corporation created by the laws of the state of Virginia. It became the owner of several other railroads, and the lessee of others, and it created and maintained a great system of railroads traversing several states.

The American Brake Company, a creditor of the railroad company, intervened, claiming priority over the mortgage debts. From a decree in favor of the intervener, this appeal was taken.

<p>Railroad Companies — Receivers—Priority—Current Supplies.</p> <p>Railroad receivers, by accepting a draft covering an account for supplies furnished prior to the receivership, with interest thereon, approve the claim; and when it is shown that they received earnings in excess of operating expenses sufficient to pay such claims, and expended the same in permanent improvements and payment of interest, the claims should be paid out of the proceeds of the property in preference to mortgage bonds. Morris, District Judge, dissenting as to the allowance of interest.</p>

This was a bill for foreclosure of mortgage by the Central Trust Company against the Richmond & Danville Railroad Company. The Dunlop Mills intervened, and sought payment of interest on a claim for supplies, the principal sum of which had been paid by the receivers of the road. From a decision in favor of the intervener, this appeal was taken.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>This was a bill for foreclosure of a mortgage by the Central Trust Company against the Richmond Sc Danville Railroad Company. John R. Tillett intervened, proved his claim, and, after the purchase of the property, filed his petition, praying payment as against the purchaser. From a decree in favor of the intervener, this appeal was taken.</p>

This was a special inquiry directed by tlie court to determine the ■validity of a mortgage executed by Manuel Marco to Pelzer, Rodgers & Co., and resisted upon tbe ground that Marco was insane at the time of its execution.

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was an action on the case by Wilbur F. Davidson against the Illinois Central Railroad Company for damages for personal injuries.</p> <p>This ease has been tried three times, and is here the second time. See 12 C. C. A. 118, 64 Fed. 301. The action is on the case for personal injury suffered by the defendant in error, Wilbur F. Davidson, as a passenger, while leaving a suburban train of the plaintiff in error at Hyde Park station, Chicago, February 27, 1893. On the first trial the jury disagreed; on the second there was a verdict for §43,000, of which the court required that §18,000 be remitted; and on the last trial the verdict was for §50,000, of which the court required a remittitur of §20,000, and gave judgment for the remainder, with interest.</p> <p>The amended declaration contains five counts. The first, after alleging the duty of the railroad company to provide reasonably safe means at the station whereby the plaintiff could leave the train and premises without unnecessary or unreasonable hazard of injury to his person, proceeds to charge that: “The defendant, disregarding its duty in that behalf, carelessly, negligently, and willfully, then and there, at to wit, its said Hyde Park station, provided means for leaving its said train and premises that, as the said defendant well knew, were grossly unsafe and inadequate in this, to wit: it then and there ■provided a narrow platform of the width, to wit, of four feet, between two •of the tracks of its said railway, and close to, to wit, within one foot of, the rails thereof on either side of said platform, for its passengers and the said plaintiff to go and walk npon in leading the train aforesaid, at, to wit, its said Hyde Park station, which platform was of insufficient width to permit passengers to he or walk thereon with reasonable safety from injury from passing trains, and was so constructed that the defendant’s engines and trains running upon its two tracks last mentioned, in passing by the said platform on either side thereof, ex( ended to wit, six inches over the said platform, leaving an unreasonably insufficient and narrow space for the defendant’s passengers upon said platform between such trains when so passing each other, of but, to wit, three feet in width; and also permitted and caused its servants in charge of its said trains to manage and drive the same in approaching and passing the said platform at frequent intervals and at a rapid and dangerous rate of speed; and by reason of the said grossly inadequate and unsafe means so afforded its passengers and the plaintiff as aforesaid the said defendant then and there exposed its passengers and the said plaintiff upon the said platform to great and.imminent danger of being struck and injured, and while the plaintiff, being a passenger as aforesaid, of the said defendant, was then and there on the said platform for the purpose of leaving the said defendant’s train hereinabove first mentioned and its premises at, to wit, its said Hyde Park station, ,gnd being in the exercise of ordinary care on his part, and while at the same time a certain cattle train of the defendant, going south, and running at, to wit, the rate of twenty miles an hour, was passing by the said platform, upon the defendant’s track next east of said platform, the said defendant then and there caused a certain other passenger train going north upon its track west of said platform, under the care and management of certain of its employds and agents in that behalf, to pa,ss tho said platfofm at a rapid and dangerous rate of speed, to wit, at the speed of twenty miles an hour, whereby the plaintiff "was then and there exposed to' great and imminent peril of his life, and he, the said plaintiff, being unaware of tbe danger to which be was so subjected, by reason of tlio. gross and willful negligence aforesaid of tbe said defendant in providing the unsafe and inadequate means aforesaid for leaving its said first-mentioned train and premises, was, without want of due care on his part, then and there caught in the narrow space aforesaid upon said platform between said passenger train and said cattle train, and was-struck and run down by the said passenger train of the said defendant as it passed the said platform, and the said plaintiff was then and there thereby thrown and hurled by the said passenger train against the side of said defendant’s cattle train, by means whereof,” etc.</p> <p>The second count, alleging the same construction and situation of platform and tracks, charges that it was the duty of the defendant, in order to apprise passengers upon the platform of the approach of trains on the adjacent tracks, to cause the bell or whistle upon the engines thereof to be sounded, and that the passenger train by which the plaintiff was struck was negligently run npon him without the hell or whistle being sounded.</p> <p>In the third count it is charged that the passenger train was run carelessly at an unreasonably rapid and dangerous rate of speed.</p> <p>The fourth count is not perceived to be essentially different from tbe first, the negligence causing the injury being alleged to have been in the construction of the platform.</p> <p>The fifth count, which was added after the reversal by this court of tbe first judgment, alleges that at its Hyde Park station “the defendant had divers main tracks of its said railway running north and south, and lying, to wit, seven feet distant from each other, and divers platforms between and alongside of the said main tracks; and tho passengers of the said defendant and the said plaintiff, as the said defendant well knew, unless they were prevented by it from so doing, were likely to, and naturally would, select tho east side of the said train in which the said plaintiff was so being carried in alighting therefrom at its said Hyde Park station, which east side of the said train, by reason of the number of the said defendant’s main tracks on that side, and the frequency with which trains passed by thereon, as from time to time they were wont to do, and at a high rate of speed, was a place on its premises at its said Hyde Park station where its passengers and the said plaintiff in leaving its said train, if permitted so to do, would he and were, as the said defendant well knew, exposed to the unreasonable, great, and unnecessary danger of being struck by its trains and injured; and it then and there became and was requisite and necessary for the said defendant, as a measure of ordinary care and prudence, to prevent its passengers and the said plaintiff by gates or fenders on its ear platforms, or by an agent or guard, to direct them from leaving its said train on the east side; but the said defendant, disregarding its duty in that behalf, as the said plaintiff, being then and there a passenger of the said defendant as aforesaid, and being in the exercise of ordinary care on his part for his own safety, was about to leave its said train, to wit, at its said Hyde Park station, then and there carelessly, wrongfully, and negligently failed by any of the means aforesaid, or by any means, to prevent the said plaintiff from leaving the said train by the east side thereof, and by its agent in that behalf directed him, the said plaintiff, to leave by that side. And the said plaintiff, being unaware of the dangers aforesaid, to which he was then and there thereby exposed as aforesaid, and being in the exércise of ordinary care on his, part to avoid injury, then and there alighted from the said train on the east side thereof, and, while walking on one of the said defendant’s said platforms between its said main tracks and its said Hyde Park station, in leaving its said train and premises, by reason of the gross negligence and carelessness aforesaid of the said defendant in permitting him to so leave the said train on the east side thereof, was, without want of due care on his part, then and there caught in the narrow sxjace upon said platform between a certain passenger train and a certain cattle train of the said defendant passing by said platform on either side thereof, and was struck and run down by the said passenger train,” etfc.</p> <p>The errors assigned have relation to the admission of evidence and to instructions given, or refused.</p>

<p>1. Vendor and Vendee — Executory Contract.</p> <p>It is not necessary to a valid executory contract for the sale of lands that the vendor shall be absolute owner thereof when he makes the contract. It is sufficient if he has an enforceable contract for the purchase thereof, or stands in such relation to it that he can carry his contract of sale into effect at the time specified. Easton v. Montgomery, 27 Pac. 280, 90 Cal.- 307, followed.</p> <p>2. Judgmeht — Quieting Title — Barring Contingent Estate.</p> <p>Lands were devised to testator’s married daughter for her natural life, and after her decease “to her children or the survivor or survivors of them.” The testator’s wife disclaimed under the will, and sued to quiet title, making all persons interested parties defendant, including the daughter and her husband and their children then born. Judgment was given for the plaintiff. Held, that this judgment barred the right of after-born children.</p> <p>3. Statute of Frauds — Sufficiency of Memorandum — Identification of Lands.</p> <p>A contract for the sale of land is sufficient to satisfy the statute of frauds if, when all the circumstances of position, ownership, situation of the parties, and their relation to each other and to the property, are disclosed as they were at the time the writing was made, the meaning and application of the writing are plain and certain.</p> <p>4. Same. '</p> <p>Where a contract in writing designated some of the lands to be conveyed as “land at Sites, consisting of 3,281 and % acres, at $5.00,” and it appeared that the vendor had several tracts of land near Sites, held that, as the land to be sold was identified by quantity and value, and by a further statement that the vendor’s agent would point it out to the vendee, this was a sufficient identification and description to satisfy the statute of frauds.</p> <p>6. Executory Contracts — Dependent Covenants.</p> <p>Where one had contracted to purchase a tract of land for $165,000 in cash, and thereafter contracted with a third party to sell the same for $125,000 in cash and certain other lands to be taken in part payment, held that, the covenants in the latter contract being dependent and concurrent, he could not maintain a- suit against such third party for damages for breach of the contract where it appeared that he was not prepared at • the time fixed for the consummation of the transaction to pay his vendor $165,000 in cash, but expected to raise the difference between said amount and the $125,000 in cash which he was to receive upon the credit of the lands so received in exchange.</p>

<p>1. National Banks — Increase of Capital — Comptroller’s Certificate— Collateral Attack. '</p> <p>Under the national banking law (Rev. St. § 5142), and the amendment ot May 1, 1886 (24 Stat. 18), the action of the comptroller of the currency in approving of an increase in the capital of a national bank, and certifying that the amount thereof has been paid in, is conclusive, and the validity of the increase cannot be assailed in a collateral proceeding such as an action to enforce the liability of the stockholders.</p> <p>2. Same — Stockholders’ Liability — Estoppel—Laches.</p> <p>Where the capital of a national bank has been increased, and defendants have received their additional stock, and for several years held themselves out as stockholders, they cannot, when the bank becomes insolvent and they . aro assessed to pay its indebtedness, deny their liability upon the ground that the increase of capital was fraudulent, and that they could not have discovered the fraud with ordinary care. More diligence was required of them, and they are estopped by their laches. Upton v. Tribilcock, 91 U. S. 45, and Sanger v. Upton, Id. 64, followed.</p> <p>3, Sam® — Agexcy.</p> <p>The officers, in taking the necessary stops for such increase, act as the agents of the stockholders, and such stockholders cannot set up the fraud of tho officers concerning iho increase, to defeat the claims of innocent creditors.</p> <p>4, Same — Power to Incubase Oaiutai,-— Irregularities — Stockholders' LIABILITY — EsTOI'I’EL.</p> <p>Under the United States statutes, national hanks have the abstract power to increase their capital to such a limit as may be approved by the comptroller of the currency, and where stockholders have assented to an increase they cannot sot up any defects or irregularities in the exercise of the power, a.S a defense in an axition to enforce their liability. Chubb v. Upton, 95 TJ. S. 665; Veedor v. Mudgett, 95 N. Y. 295, followed. Scovill v. Thayer, 105 U. S. 143, and Implement Go. v. Stevenson, 13 G. G, A. 661, 66 Ifed. 633, distinguished.</p>

This was an action by James R. Lawrence against the United States to enforce payment of a balance of $7,601, withheld under a contract for building a courthouse and post office, in favor of persons who had furnished labor and material. The Greenwood Savings Bank and George A. Norwood tiled their claims against this fund, which, by order of the circuit court, were disallowed, and they appealed.

<p>Interest on Costs — Law of South Carolina.</p> <p>The South Carolina law of 1815 (6 St. at Large, 4), allowing interest on judgments when the cause of action on which judgment is recovered carries interest, did not provide for interest on costs, and was not repealed by the act of 1866 (13 St. at Large, 463), which fixes the rate of interest on “all money decrees and judgments”; hence, under Rev. St. § 966, allowing interest on judgments of federal courts according to state laws, interest cannot be collected upon a judgment for costs, recovered in a federal court of that state. Kirk’s Adm’r v. Riehbourg’s Ex’r, 2 Hill (S. C.) 351, distinguished.</p>

., The language of the brief of plaintiff in error on page 3, to which reference is made in the opinion, was: “The following are the errors assigned and urged: Second assigned error,” etc.; no reference to the first assigned error being made. On January 28, 1895, Alexander Reeder instituted this suit in the district court of Marion county, Tex., against the Texas & Pacific Railway Company.

<p>* ■ This was a petition filed by N. G. Gonzales in the case of James Donald against J. M. Scott and others, praying for an attachment against certain police officers, constables, and the chief dispenser of the state of South Carolina for alleged contempt by violating an injunction.</p>

This was a petition by A. E. and W. E. Gonzales, in the case of James Donald against J. M. Scott and others, praying for the delivery to them of certain packages of liquors seized by the officers under the dispensary act.

This was a suit by William F. Scott, as assignee in bankruptcy of James Boyle, against Andrew Little, Eleventh Ward Bank, Henry-Steers, and others. The cause was heard on a motion for an injunction.

This was an indictment against William R. Hall ior embezzling a letter from the mails. The case was heard on a motion in arrest of judgment and for a new trial.

<p>1, Marine Insurance — Intoxication.</p> <p>Incompetoncy of the master is not established as a defense against a claim of loss on a marine policy by proof of a single instance of more or less intoxication, where previous good character and competency are established.</p> <p>2. Towers Policy" — Date oe Loss — Computation ov Time.</p> <p>On limitation of suit to one year from the date of the loss in an action on a “Towers policy” insuring against liability to other vessels for negligent collision, where the policy requires the establishment of the loss by suit in behalf of the other vessel, the time does not begin to run until the adjudication of liability for loss; to which 60 days required for submitting proofs is added. The requirement 1hat “suit be prosecuted” is satisfied by a joint suit in which the liability can be lawfully adjudged; and this is not changed by the fact that the defendants require a severance; nor should time he computed during which the common attorney of insurers and insured is endeavoring to bring about a compromise of the claim with Ihe concurrent action of each.</p>

<p>1. GENERAL Average — Personal Liability.</p> <p>The owners of a cargo are liable on an implied promise for general average.</p> <p>2. Same.</p> <p>Where a master, in order to preserve his cargo, tafees measures such as a wise and prudent man would thinfe most conducive to the benefit of all concerned, he has a lien on the cargo for the expenses so incurred.</p> <p>8. Same — Lien.</p> <p>The lien for general average is one recognized by the admiralty law, and. stands on the same fooling as a maritime lien on cargo for the price of its transportation.</p> <p>4. Same.</p> <p>The lien may be preserved by a qualified or conditional discharge of the cargo.</p> <p>6. Same.</p> <p>Though, strictly, the right to payment of general average does not, perhaps, always await a discharge of the cargo, yet no admiralty court will enforce payment prior to an opportunity for an inspection of the cargo by its owner for the purpose of determining its contributory value, so that, practically, a prior discharge of the cargo is necessary to enable the owner s of the vessel to collect the amount due for general average.</p> <p>6. Same.</p> <p>The owner of a vessel cannot ordinarily retain the cargo aboard for nonpayment of freight, and thereupon charge demurrage arising from such detention.</p> <p>7. Same — Bom).</p> <p>An average bond should be conditioned in the simplest terms to pay the obligor’s share of general average, and it is improper to demand a bond requiring more than this, or which would in any way prejudice the owner of the cargo in denying liability, or in questioning the amount of it, or which would close any of 1he methods which the la.w gives for determining the existence or extent of liability.</p> <p>8. Same.</p> <p>The cargo owner cannot insist that the bond shall provide for a posv ponement of any suit against the sureties until the end ol* litigaiion with the consignees.</p>

These were libels filed, respectively, by the Botany Worsted Mills, and by Henry P. Winter and others, against James Knott, to recover for damage to cargo shipped on board the Portuguese Prince, which is o/wned by respondent.

<p>Maritime Lien — Supplies to Chartered Vessel — Captain Present — Credit , of the Ship.</p> <p>The superintendent of the charterer’s agents purchased a pump for the chartered vessel, for which the charterer, by the terms of the charter, was bound to pay. The superintendent stated to the libellant at the time of the purchase that his principals were the ship’s agents, which was incor- ' _ reet. The captain was present with the superintendent at the time of the purchase, and examined the different pumps, and he gave no notice to the libellant that the purchase was not on the ship’s account and the libellant relied upon the credit of the ship: Held, the circumstances Justified trusting the ship, and that she was liable.</p>

<p>This was a libel by William W. Hurlbut, against Lawrence Tur-nare on a general average bond.</p>

<p>Collision — Crossing Courses -- Contrary Signals — Privilege» Vessel Rigütly Stops — Rule 21.</p> <p>Tlie steamship Friesland, inward bound, soon after leaving Quarantine, saw the steamer Bellarden coming- down the Bay at least a half mile distant, a little on tlie starboard bow. The B. gave 3 signals of one blast each, being bound for anchorage ground on her right, and having tlie F. 2 or 3 points on her port hand. The F., not hearing the first two signals of the B., gave two successive blasts of two whistles each, and starboarded. These whistles being heard by tlie B. and understood as a dissenting reply to her own signal of one whistle, she first slowed, then, stopped. To her third signal of one whistle the F. replied with one and tlie B. then started ahead. Had she not slowed and stopped previously, the collision would have been avoided. Held, that stopping by the B., the privileged vessel, was in conformity with the requirements of Rule 21, in the presence of immediate danger of collision; and that the F. was wholly in fault for going to the left instead of the right, and for undertaking to cross the bow of the B. and starboarding without the B.’s assent.</p>

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

<p>1. Collision — Duty of Tugs — Narrow Channel —Negligence — abandon must of Tow.</p> <p>Tbe steamer Packer, in tow of two tugs, — the Gee and tbe Alpha, — was brought through Pock slip stem foremost, and headed up Buffalo river, the Gee leading. Without warning, the Alpha threw off her line and steamed away, leaving the Ge.e alone with the steamer. The Packer made no objection to the Alpha's desertion, and the latter claimed to have received an oral command from the Packer to leave, hut there was no signal to that effect. Lying in Pock slip, with her stern projecting 25 or 30 feet into Hie river, was the Denver. Opposite the Denver was another largo vessel, leaving a narrow passage. The canal boat Bartholdi was coming down the river, properly towed by the tug Puritan, which had no notice of danger tmtll within 50 feet of the Gee. The Puritan promptly attempted to avoid collision. The Gee kept straight up the river, and passed safely. The Packer, instead of following the Gee, started her wheel, and ported her helm prematurely, striking the Bartholdi and seriously injuring her. Held, (1) that the conduct of the Alpha in abandoning the tow was negligent; (2) that the conduct of the Packer produced the collision; (3) that the Alpha and the Packer were liable for the damage.</p> <p>8. COLLISION — Tugs and Tows — Signals—Oral Commands.</p> <p>When it Is customary for a tug to give orders by signals from the steam whistle to another tug assisting in towing a vessel, the assisting tug should pay no heed to oral orders from the vessel in tow, unless clearly authorized; and if, in obedience to such oral order, the tug abandons the vessel, the abandonment is negligence.</p> <p>3. Same — Maneuvering—Inadequate Harbor.</p> <p>Where the facilities of a harbor are so inadequate as to require maneuvering within narrow limits, vessels must be subjected to stricter rules than they would be in a commodious harbor.</p> <p>A Same — Desertion by Tug — Acquiescence—Negligence.</p> <p>If one of the tugs engaged in towing a vessel is permitted to abandon the tow without protest from the officers of the vessel in tow, they, by remaining mute, ratify the act of desertion, and involve themselves in the negligence.</p>

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

This was au action at law by W. W. Collins against F. H. Stott and others, brought in the superior court of New London county, and removed by petition of the defendants into the United States circuit court for the district of Connecticut.

. This was an action by John Allmark against the Platte Steamship Company, Limited. The case was heard on a motion to remand to the state court, from which it had been removed.

<p>Removal ob1 Causes — Motion to Quash Sebvice — Ruling by State Coubt.</p> <p>Wliere defendant has removed a case from a state court after denial by the state court of a motion to set aside the service of summons, he cannot renew such motion in the federal court without having obtained leave to do so, either from the state or federal court.</p>

This was an action at law by Charles Johnson against the F. C. Austin Manufacturing Company to recover damages for personal injuries. The case-was heard on a motion to remand to the state court, from which it had been removed by the defendant

<p>1. Circuit Court of Appeals — Jukisdtctios—Filing Writ of Error.</p> <p>Where the record does not show that the original writ of error sued out in the circuit court of appeals has been formally filed in the trial court, even though it was in fact delivered to and lodged with the cleric, the appellate court is without jurisdiction.</p> <p>2. Same.</p> <p>It is essential to the filing of a writ of error in the trial court that it bo indorsed as filed by tlie cleric. Gilbert, Circuit Judge, dissenting.</p>

<p>1. Proceedings .-beeoiib Rkberee — Review.</p> <p>To obtain a review of the evidence and proceedings, exceptions taken to any order or ruling made by the referee should ‘be embodied in a bill of exceptions signed by him.</p> <p>2. Same.</p> <p>An objection that the findings are against the weight of evidence cannot he considered unless the entire evidence is preserved by a bill of exceptions taken before the referee.</p>

Appeals from the Circuit Court of the United States for the District of Kentucky. Held: which were to collect or sell all assets and adjust all claims against the company, in order to convert the property and assets into cash in the most speedy and satisfactory manner: First, to pay all costs and expenses; second, to pay all advances made, with interest thereon as may be agreed upon; third, to pay all the debts and…

<p>1. COJJBITTORAR SAIjE — MORTGAGES.</p> <p>Where property is sold and delivered under a contract that it is to remain the property of the vendor until fully paid for, which is not acknowledged and recorded, it is not subject, under Code Iowa, § 3093, to the lien of a prior mortgage of all the property then owned, or thereafter to be ac-quirt-xl, by the vendee, except in so far as the interest of the vo.ndee extends. Myers v. Oar Oo., 102 U. S. 1, followed.</p> <p>2. Street-Railway Comi*anies — Power Furnishkb — Liens—Priority.</p> <p>Where a street-railway company whose property is mortgaged has contracted a debt for motive power furnished since the mortgage was executed, such indebtedness takes priority of the mortgage.</p> <p>3. Equity — Circuity of Action — Subrogation.</p> <p>Where a debt contracted by a. corporation is a first lien upon property which never became its own, by reason of its failure to carry out the terms of the contract of sale, equity will decree that it be paid out of a fund in court arising from a sale of the corporation’s properly, in order to avoid the circmiy of action which would result if the owner of the property paid off the lien, and thus became subrogated to the righto of the lien creditor.</p>

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

This was an action by Mary R. Tate and others, heirs at law of Eliza Francis, against Huida G. Holmes and Byron Z. Holmes, to set aside a conveyance from said Eliza Francis to the first-named defendant. Judgment was rendered for defendants, and plaintiffs appeal.

<p>Monopolies — Combination op Patent Owweks.</p> <p>A combination among manufacturers of spring-tooth harrows, by which each manufacturer assigns to a corporation organized for the purpose the patents under which he is operating, and takes hack an exclusive license to make and sell the same style of harrows previously made by him, and no other, all the parties being bound to sell at uniform prices, held to be an unlawful combination for the enhancement of prices, and in restraint of trade.</p>

<p>Railroad Companies — Charge of Gauoe in Streets — City Ordinances.</p> <p>A railroad company authorized by its charter to build a “three-feet, standard narrow-gauge railroad” cannot broaden its tracks to the standard gauge without the consent of a city through whose streets the tracks are laid, even though the city ordinance granting the use of such streets to the company did not specify any gauge. The charter and ordinance should be construed together.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was a bill by the Mercantile Trust Company against the Colorado Mining-Stock Exchange, to foreclose a deed of trust in the nature of a mortgage. David W. Hart, treasurer of Arapahoe county, filed an intervening petition, setting forth the payment by himself of certain taxes upon the mortgaged property, and praying that he might be subrogated to the rights of the state, the city of Denver, and the board of education, as if the taxes had not been paid, and that the lien decreed in his favor might be adjudged superior to that of the bond holders. From a decree in favor of intervener, plaintiff appealed.</p>

<p>'Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This suit, which was a bill filed by Alexander Wilson, Robert Mure McKerrell, and William Brown, the appellants, against Ellen R. Seymour and William G. Pell, the appellees, grows out of the following facts: Some time prior to August 18, 1887, Ellen R. Seymour and William G. Pell, the appellees, being the owners df the Slide and Spur mining claims located in Boulder county, Colo., had entered into an agreement with John Haldeman, of London, England, for the sale of said mining claims at the price of $750,000; $2-5,000 thereof to be paid in cash one week after the receipt of a certain report concerning said mining claims, and the balance to be paid within two months thereafter, one-half thereof in cash, and one-half in the stock of a company that was to be organized in England to purchase and work said mining claims. Such a corporation, termed “The Slide and Spur Gold Mines, Limited,” was afterwards organized under the laws of Great Britain with a capital stock of £400,000 sterling, divided into 400,000 shares of £1 each; and on May 16, 1887, ar; agreement was entered into by John Halde-man with Harry Edward Gilbert, ihe latter of whom acted for and in behalf of said company, to sell the aforesaid mining claims to said company for the sum of £375,000, which was to be paid as follows: £85,000 in cash within 14 days after the first allotment of shares in said company, £133,000 in fully paid up shares of said company, and £157,000 in cash, or in fully-paid shares of stock of said company, at the option of the directors of said company. Prior to August 18, 1887, said John Haldeman had paid to the appellees, on account of the aforesaid purchase of said mines, about $58,444, but was unable to make further payments. On August 18, 1887, J. FentoD Seymour, the husband of Ellen R. Seymour, one of the appellees, who was then in England, acting for and in behalf of both of the appellees, entered into a further agreement, with John Haldeman, of the following tenor:</p> <p>“Memorandum of agreement made this 18th day ot August, 1887, between John Haldeman, of * * * the city of London, and J. Fenton Seymour, of Denver, ■ Colorado, in the United States of America, acting for himself and partners, the owners of the Slide and Spur gold mines, situate in Boulder county, Colorado, ' United States of America.</p> <p>“The said John Haldeman agrees to pay forthwith the sum of ten thousand pounds sterling in addition to twelve thousand five hundred pounds already paid on account of the purchase money of the said mines, such sum of ten th msand pounds to be paid through Messrs. AVells, Fargo & Company (who now hold the deeds of the said property in escrow), and to be held by them and paid over to the said J. Fenton Seymour upon the titles of the said mines being registered in the name of the Slide and Spur Gold Mines, Limited, free from all charges and incumbrances; and the said J. Fenton Seymour hereby undertakes and agrees to register the titles as above upon the said ten thousand pounds being deposited with Messrs. Wells, Fargo & Company. The said J. Fenton Seymour hereby undertakes and agrees to have the Slide mine worked to its full capacity, and, after the due and legal registration of the title to the said companyl he further agrees that the returns from the said mine shall be cabled weekly to the said company in the form of cables sent herewith, it being understood and agreed that tlio money value of the first weekly returns so cabled shall not be less than the sum of two hundred pounds sterling, and that each successive weekly return shall show a moderate increase over that sum. The said J. Fenton Seymour herein undertakes and agrees to take the control of the management of said property until the payments hereinafter mentioned are completed, and it is understood and agreed That he shall retain sueli control until the said payments are completed.The said John Haldeman agrees that 373,000 shares of one pound each In the above company shall be transferred to Mr. Clarence Preston Elder, as trustee, and deposited with Messrs Wells, Fargo & Company in London, to the intent that the said shares shall be held as security for the dne performance of the following conditions, viz.: First, the payment of ten thousand pounds in addition to the above-mentioned twenty- two thousand and five hundred pounds within three days * * * after the receipt of the third successive weekly return from the mine as hereinbefore mentioned; and, second, the balance of 43,000 pounds at the expiration of ten days after the receipt of eight successive weekly returns of the nature and value above specified. Upon the completion of the above-mentioned payments, the said J. Fenton Seymour hereby undertakes and agrees to release the above-mentioned three hundred and seventy-live thousand shares, less seventy-seven thousand five hundred, to which he is entitled, and also less the number of shares sold with the consent and under' the supervision of the aforesaid Clarence Preston Elder, acting for the said J. Fenton Seymour. In case the weekly returns cabled from the mine shall from any cause fall below the sum of two hundred pounds sterling per week, then in that case such returns shall not count, but the lime for paying the second ten thousand pounds and the balance of forty-five thousand pounds shall be extended pro rata; but, should the successive weekly returns amount to two hundred pounds sterling per week, * « * with a moderate increase weekly as hereinbefore mentioned, and the said John Haldeman shall make default in the payment of the balance of forty-five thousand pounds, then in that case the said J. Fenton Seymour shall have the right to forfeit the amounts already paid and to claim the above-mentioned 375,000 shares. As witness the hands of the said parties ihe day and date first above written.</p> <p>“J. Fenton Seymour. '</p> <p>“Jno. Haldeman.”</p> <p>When the aforesaid agreement was executed, It was understood that the money to make the first payment of £10.000 therein referred to was to be obtained from Robert Mure McKerrell and William Brown, the appellants, who were sometimes designated as the “Scotch Syndicate,” and on the following day, to wit, August 19, 1887, the following agreement was entered into:</p> <p>“Minute of an agreement between J. Fenton Seymour and Clarence Preston Elder, both of Denver, United States of America, and Robert Mure McKerrell, of HUlhouse, Ayrshire, and William Brown, Solicitor, Hamilton, Lanarkshire.</p> <p>“Whereas, by art agreement made on the 18th day of August, 1887, between said J. Fenton Seymour, for himself and others, owners of the Slide and Spur gold mines in Boulder county, Colorado, United States of America, of the one part, and John Haldeman, of * * * London, of the other part, it is stipulated and agreed that 375,000 fully paid up shares of one pound each, of and in the Slide & Spur Cold Mines, Limited, are to be issued by the said company to the aforesaid John Haldeman in payment in full for the said mines, against a clean transfer of the property to the company free of all Incumbrances and liabilities whatsoever, and the due registration of tire said transfer, and which shares are immediately upon the same being so issued to be transferred to the said Clarence Preston Elder, a director of the company, as trustee, for behoof of all concerned, and the said shares are to be then deposited with Wells, Fargo & Company, merchants, London, in the name of the said Clarence Preston Elder, as a guaranty for the fulfillment by the said John Haldeman of the rorms of said agreement so far as Incumbent upon hinr, all as fully set forth in the said agreement: Now it is hereby specially covenanted and agreed that, notwithstanding the terms Of the aforesaid agreement, 75,000 fully-paid share.? of one pound each * * * of the said total number of 375,000 shares shall be held by the said Clarence Preston Elder, and the said Wells, Fargo & Company, for and on account of the said Robert Mure McKerrell and William Brown, and the said 75,000 shares shall be delivered and transferred to them or their nominees immediately upon the cash payment mentioned in the aforesaid agreement being received by the said J. Fen-ton Seymour, or his heirs and successors, or his or their agent; and further, it is hereby specially provided and • agreed that, in the event of the terms of the aforesaid agreement not being implemented by the said John Haldeman, and, in consequence thereof, the said shares deposited with Wells, Fargo & Company, or part thereof, becoming claimable by or on account of the said J. Fenton Seymour, or his heirs or successors, yet, nevertheless, the said 75,000 shares in that event shall be forthwith delivered and duly transferred by the said Clarence Preston Elder and Wells, Fargo & Company to the said Robert Mure McKerrell and William Brown or their nominees, notwithstanding any failure on the part of the said John Haldeman to implement the said agreement or any portion of the same. ' J. F. Seymour.</p> <p>“Clarence P. Elder.</p> <p>“Robert Mure McKerrell.</p> <p>“William Brown.”</p> <p>On September 6, 1887, the first payment of £10,000 mentioned in the agreement of August 18th was made to the appellees, and on the same day the aforesaid mining claims were conveyed to the Slide & Spur Gold Mines, Limited. On September 10, 1887, on the due organization of said company, the aforesaid contract of August 18, 1887, between J. Fenton Seymour and John Plaldeman was laid before the board of directors of the company, and was by them approved, and thereupon, by the action of the board of directors, the contract made by Harry Edward Gilbert in behalf of said conqiany on May 16, 1887, with said John Halde-man, was so modified that Haldeman was to receive for the mining claims an allotment of 875,000 shares of fully-paid stock in the company, in lieu of the money and stock previously agreed to be paid. Subsequent to September 10, 1887, 375,000 shares of the stock of said Slide & Spur Gold Mines, Limited, were issued and placed in the hands of Clarence P„ Elder, on the trusts specified in the aforesaid agreement of August 18, 1887, but Haldeman made no further payments in addition to the payment of £30,000, which latter sum was advanced by the Scotch syndicate. Matters remained in this condition until about December 15, 1888, when Alexander Wilson, one of the appellants, made a further payment to the appellees in the sum of £3,500 sterling. This latter payment by Wilson appears to have been made upon a further understanding had between the parties, which was entered into on or about October 6, 1888, to the effect that when the payment of £3,500 was made, Clarence P. Elder should deliver to the Scotch syndicate the 75,000 shares of the stock by him held in trust, as aforesaid, also 45,000 shares of stock to a Mr. Rust, and that 15,000 shares of stock should be delivered to Alexander Wilson, or whoever should advance the £3,500 on a final settlement to be made, “not later than three months,” of the amount due to the appellees on account of the purchase price of the mines. The total amount due to the appellees on account of the sale of said mining claims was not paid, and on February 16, 1889, the appellees filed a bill against the Slide & Spur Gold Mines, Limited,- in the circuit court of the United States for the district of Colorado, claiming a vendor’s lien for the unpaid purchase money,-and seeking an enforcement of the same. A decree was rendered in favor of the complainants in that case, establishing a vendor’s lien on June 17, 1890. Seymour v. Slide & Spur Gold- Mines, 42 Fed. 633. From that decree the defendant corporation appealed to the supreme court of the United States, and upon such appeal the decree establishing the lien and directing a sale of the mines for its satisfaction and payment was affirmed on May 14, 1894. Slide & Spur Gold Mines v. Seymour, 153 tr. S. 509, 14 Sup. Ct. 842. Afterwards, on July 13, 1894, the present bill was filed by the appellants against the appellees to restrain the sale that was about to take place under the aforesaid decree. The bill of complaint so filed by the appellants recited, in substance, the various facts and transactions heretofore stated, and as a ground for the relief sought charged, in substance, that prior to the making of the aforesaid agreements of August 18, 1887, and August 19, 3887, said J. Fen-ton Seymour, as the agent of the appellees, had represented to the appellants who compose the Scotch syndicate that, if they advanced the £10,000 sterling necessary to secure a conveyance of the aforesaid mining claims to the Slide & Spur Gold Mines, Limited, as contemplated by said agreement, of August 18, 1887, “such conveyance of said property should and would be free and clear of all liens and in-cumbranws of any nature or kind whatsoever, and particularly that such conveyance should and would he free and clear from any grantor’s or vendor’s lien of the said líllon II. Seymour and William G. Pell, arising from or by reason of such conveyance, * * * and that seventy-live thousand shares of stock should be held for * * * said Scotch syndicate in such manner that the same should be fully paid up shares of said company, and so as to secure to * * * such Scotch syndicate the rights, powers, and interests that pertain to the holders of fully paid-up shares, and that no lien or incumbrance, and particularly no grantor’s or vendor’s liens, should exist or be asserted against said property by said Ellen It. Seymour and William G. Pell by reason of said conveyance of said property to said company.” Similar averments were made in the hill with respect to representations said to have been made by said .T. Fenton Seymour, on or about December 15, 1888, when Alexander Wilson, another of the appellants, was induced to pay to the appellees £3,500 towards completing the purchase of the mines; that is to say, it was averred, in substance, that at said time said Seymour represented that, if said Scotch syndicate should pay £3,500 sterling, and should receive 35,000 shares of stock In the Slide & Spur Gold Mines, Limited, the shares so received should be held free and clear of all liens and incumbrances, and that the mining claims aforesaid should be held by said company free and clear of all incum-brances, and particularly free and clear of any grantor’s or vendor’s lien that might be set up or claimed by Ellen R. Seymour and William G. Pell, and that the 15,000 shares of stock should be held in every respect as the aforesaid 75,000 shares were held, and that the holders thereof should have like rights, powers, and interests. On the strength of these averments, the appellants prayed that the appellees might he adjudged to he estopped from asserting or enforcing their claim to a vendor’s lien against the property of the Slide & Spur Gold Mines, Limited, or that In lieu of such decree it might he adjudged that the appellants wore entitled to a prior lien on the aforesaid mining claims for the money which they had respectively advanced and caused to bo paid to the appellees on account of the sale by them made of said mining- claims. The circuit court, after a full hearing of the case, dismissed the bill of complaint, and the complainants below have appealed.</p>

Appeals from the Circuit Court of the United States for the District of Massachusetts.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>W. F. Werner was the collector of the public revenue of the county of Crit-tenden, in the state of Arkansas; and, being unable to settle his accounts as such collector in the time and mode required by law, he signed and delivered to his bondsmen on the 26th of July, 1898, the following paper:</p> <p>“Gayoso Hotel, Memphis, Tenn., July 26, 1893.</p> <p>“Assets of W. F. Werner.</p> <p>21 head of nuiles.... 1,000</p> <p>Farming utensils . 100</p> <p>3 four-horse wagons. 100</p> <p>1 buggy ........ 75</p> <p>1 surrey . 50</p> <p>2 horses......... 100</p> <p>25 bogs, more or less....... 00</p> <p>20 bead of cattle, more or less.. 100</p> <p>1 jackass........ 100</p> <p>500 acres of cotton, more or less.... 2,000</p> <p>100 acres of corn, inore or less.... 400</p> <p>“.$500 due me by citizens of Crittenden county, more or less. $5,000.00 interest in Crittenden county scrip, held by -Tno. (mortgaged for $3,500.00) Armestead. $500 due me in Crittenden Co. scrip, more or less, by citizens of Crittenden Co. W. E. Werner.”</p> <p>On the 28th of July, 1893, Werner delivered the possession of all the property mentioned in this paper to O. L. Lewis, as trustee and pledgee for Werner’s bondsmen, with authority to him to sell the same, and to gather and sell the crops of cotton and corn, and appropriate the proceeds of the sale to the payment of Werner’s indebtedness to the school fund of Crittenden couniy, for which the sureties on his official bond were liable. On the 23d day of August, 1893, a distress warrant was issued by the auditor of the state, addressed to the constable of Jasper township, Crittenden couniy, which recited, in substance, that there was duo to the slate from Werner, as collector of the public revenue, the sum of $10,378.70, and commanding- the constable to levy and sell t.he goods and chattels, lands and tenements, of Werner and his sureties (naming them), to satisfy the sum due the state. The property, the proceeds of which are here in controversy, was dnly levied upon by the constable under tiiis distress warrant; and while the same was in his possession by virtue of such levy the possession was forcibly taken from him on the 15th of September, Í893, by the United States marshal, who proceeded to levy on the property an execution issued on a judgment against Werner, and in favor of Cochran. The judgment in favor of Cochran was recovered on March 20, 1893, for $12,018.30. On July 29, 1893, execution was issued on this judgment, and came into the hands of the marshal the same day, and on the 15th of September, 1893, was levied on the property, the proceeds of which are here in dispute; the marshal taking the property from the possession of the constable for the purpose of making- such levy, as before stated. Hillard & Coffin had a deed of trust or chattel mortgage on ail the properly mentioned, which was prior in date and superior to the claim of all the parties to this suit. At this stage of affairs, Cochran, Lewis (Werner’s bondsmen), and Dillard & Coffin entered into an agreement, on the 19th of September, 1893, which, after reciting in substance the foregoing claims of the parties, and also the further fact that the state of Arkansas was asserting a right to Subject the property mentioned to payment of the debt due the state from Werner in his official capacity, as collector of the public revenue, provided that the marshal, by his deputy, llowen, might continue in possession of the property, gather and sell the crops of cotton and corn, and sell (he other property, and pa.y the proceeds, less certain costs and charges and the rent on the land, to Dillard & Coffin, who. after satisfying their own mortgage debt against Werner, were to pay the remainder into the registry of the United grates circuit court for the Eastern division of the Eastern district of Arkansas, there “to await the determination as to whom the property belongs; it being hereby expressly agreed that the rights of the parties hereto, respectively, are preserved, it being the intention of this instrument merely to avoid costs and expenses, and obtain the largest amount of money possible, over which the said Cochran, Lewis, and the state of Arkansas may litigate their rights. * * *” The property was sold, and the proceeds applied as provided in the agreement. Dillard & Coffin’s debt was satisfied in full, and they paid into the registry of the court the remaining proceeds of the sale of the property, amounting to $2,039.77. This bill was filed on the 1st of December, 1894, by Cochran, the appellee. Lewis, one Morris, and Werner are made defendants. The bill alleges that the appellee is entitled to the fund in the registry of the court by virtue of the levy by the marshal of the execution issued on the Cochran judgment. Lewis answered, denying the complainant’s right to the fund, and setting up a claim thereto as trustee and pledgee for Werner’s sureties on his official bond. The state of Arkansas, by leave of the court, intervened, and set up a claim to the fund by virtue of the issuance and levy of the auditor’s distress warrant on the property. So that there are three claimants to the fund in the registry. Cochran claims it upon the ground that he acquired a lien on the property by the levy of his execution thereon, Lewis claims it as trustee and. pledgee for Werner’s sureties on his official bond, and the state of Arkansas claims it by virtue of the levy thereon of the distress warrant issued by the auditor against Werner as a defaulting collector of the public revenue. The court below decreed that the fund belonged to Cochran, and Lewis and the state of Arkansas appealed.</p>

<p>1. TRESPASS ON GOVERNMENT LANDS — REMEDY.</p> <p>The United States has the same right as a private owner to institute legal proceedings to protect its property from threatened injuries.</p> <p>2. Same — Implied License.</p> <p>There is no implied license to use for pasture purposes public land reserved for the preservation of forests, to the destruction or injury of such forests.</p>

<p>CORPORATIONS — Liability os’ Trustees — Pkvalty—Right or Actiox.</p> <p>The Montana statute providing that, if the trustees of a corporation organized thereunder fail to make a report of its affairs at a specified time, they shall bo liable for its debts, creates a joint and several liability to each creditor, which can he enforced by an action at law against one or all of the trustees. This liability is not in the nature of a penalty. The right of the creditor is vested as soon as it accrues, and may bo assigned, and cannot be defeated by any subsequent change or repeal of the statute.</p>

This was an action by the National Bank of Oxford against George O. Whitman to enforce his liability as a stockholder in the Arkansas Oitv Investment Company. Defendant moves to set aside a verdict for plaintiff.

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

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>This was an action by Eliza M. Fraser against the Standard Life & Accident Insurance Company to recover §4,000, which she alleged was due her under a policy of accident insurance issued by the company upon the life of Harry L. Fraser. From a judgment in favor of plaintiff, defendant brings error.</p>

<p>1. Contracts — Assignment—Agency—Undisclosed Principal.</p> <p>Where one party to a contract stipulates therein that he will not assign the same without the consent of the other, this does not prevent an undisclosed third party, for whom he acted as agent in making the contract and in carrying on the work provided for therein, from maintaining an action upon it.1</p> <p>2. Breach of Contract — Assumpsit.</p> <p>Where, under a contract with the owner of certain land to convert trees thereon, into railroad ties, and sell them, and to pay for them after sale, the ties were manufactured and removed from the land, and, before the time in which they were to be sold had expired, the owner of the land seized and sold them, and appropriated the money to his own use, it eld, that assumpsit would lie to compel him to account therefor.</p> <p>3. Appeal — Assignment of Error.</p> <p>The circuit court of appeals will not consider assignments of error relating to the giving or refusing of instructions unless they set out fully the parts of the charge referred to, according to rule 11 (11 C. C. A. cii., 47 Fed. vi.).</p> <p>4. Same — Review of Action of Trial Court.</p> <p>In the United States courts the refusal of the trial judge to set aside a verdict or grant a new trial is not subject to review.</p> <p>5. Same — Bill of Exceptions — Evidence.</p> <p>It is not error for a federal court to certify in a bill of exceptions merely what the evidence tended to prove, instead of setting it out in full. Railway Co. v. Ives, 12 Sup. Ct. 679, 144 U. S. 408, and Lees v. U. S., 14 Sup. Ct. 163, 150 U. S. 476, followed.</p> <p>6. Same.</p> <p>The practice and rules in the circuit courts embracing the preparation, settling, and signing of bills of exception are not within the “practice and forms and modes of proceeding” required by Rev. St. § 914, to conform as near as may be to those existing in like causes in the courts of record of the state.</p>

<p>In Error to tbe United Stales Court for tbe Indian Territory.</p>

<p>1. Appeal — Trial by Court — Finding—Review.</p> <p>Where a jury is waived, and the court finds generally for one side or the other, the losing party has no redress on error except for the wrongful admission or rejection of evidence. 75 Fed. 130, affirmed.</p> <p>2. Evidence — Record of Judicial Proceedings — Exhibits. ■ •'</p> <p>Ah objection to the introduction of the record of a judicial proceeding on thé ground that it does not contain all the exhibits-in the original bill is sufficiently answered by afterwards proving and introducing the original exhibits. .... . . . ;</p> <p>3. Same. , . .....</p> <p>, . A party desiring to use as evidence some part, of the record of a judicial proceeding' need produce a transcript of. only the pari which he wishes to use.</p> <p>4. Same — Authentication of Records.</p> <p>It is the uniform practice to follow the requirements of Rev. St. § 905, as to the certificate of the clerk and judge in authenticating the records and judicial proceedings of the United States courts, though that section does'not include them in terms, and an authentication which conforms thereto is sufficient.</p> <p>5. Same — CORPORATIONS—PROOF of Existence.</p> <p>Where a party has admitted the existence of a corporation hy contracting with it, and has admitted in a former judicial proceeding that he entered into the. contracts, it is not necessary, when the record of that proceeding is introduced in evidence, to prove such corporate existence. ¡</p>

<p>1. Judgments — When Void — Rkveustrle Error — Liens—Shake in Pkoceeds of Sale.</p> <p>The fact that a decree for the sale of several pieces of property, to satisfy liens aghinst them, permits a lien which only attached to one piece to share pro rata in the proceeds of all, does not render the decree void, but only reversible for error. 62 Ifed. 695, affirmed.</p> <p>2. Federal Courts — Following State Decisions.</p> <p>A single decision of a state supreme court, applying principles of the common law to the solution of a question as to the validity of judgments, does not establish a rule of property which is binding upon a federal court, in a ease where the rights of a. party claiming property under such a judgment became vested before the decision was made.</p> <p>8. Judgment — Reversal—Redemption of Property.</p> <p>The reversal of a judgment under which property has been sold does not affect the rights of the holder of another judgment who redeemed the property, under sections 2547-25d9, Mills’ Ann. St. Colo., before the writ of error was sued out, and who was a stranger to the writ of error.</p> <p>4. Same — Notice of Sale — Date of Newspaper — Impeaching Kecord.</p> <p>Where a newspaper containing a notice of sale under a judgment was dated the day before such judgment was rendered, evidence to show that the paper was not in fact published until the day succeeding its date does not tend to impeach the record in the case, and is admissible in a collateral proceeding.</p> <p>5. Ejectment — Parties to Actions — Evidence.</p> <p>. In an action of ejectment, it is not error to reject testimony tending to show that the plaintiff lias only the legal, and not the equitable, title to the property in dispute, as the legal tiñe is sufficient to maintain the action.</p> <p>6. Same — Tax Titles.</p> <p>A tax title, offered in evidence, is properly rejected, when the notice of the tax sales contained no sufficient description of the property sold to render the sale valid.</p>

Frederic J. Stimson, the defendant in error, filed a complaint against Hyman Schradsky, the i>laiutiff in error, in the circuit court of the United States for the district of Colorado, which complaint, omitting the caption thereof, and the jurisdictional averments, which were in due form, was as follows: “That on, to wit, the 3d day of April, A. D. 1894, this plaintiff was, and ever since said date has been, and now is, the sole owner and entitled to the possession of the…

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>This action was brought by II. E. Bronson, the plaintiff in error, against Thomas b\ Oakes, Henry C. Payne, and Henry O. House, as receivers of the Northern Pacific Itailroad Company, the defendants in error, to recover damages for a personal injury received while traveling as a passenger on a train on the Northern Pacific Railroad, operated l>y the defendants as receivers. The action was commenced in the district court of Hennepin county, Minn., and, on the application of the defendants in error, removed into the circuit court of the "United States for the district of Minnesota.</p> <p>Omitting the formal parts, the complaint reads as follows:</p> <p>“Plaintiff further alleges: That on the 30th day of December, 1898, this plaintiff, in company with his wife, took passage at the city of St. Paul, in the state of Minnesota, on a regular passenger train o-n said Northern Pacific Railroad, operated by said defendants, for the purpose of traveling over the same westward from said state to the Pacific coast, upon a route of said railway. conducted and operated by said defendants, and that the plaintiff duly purchased from the agent of said defendants at the said city of St. Paul the usual and regular tickets for such passage over said railway, and paid to said defendants the regular fare for said tickets for said passage and travel over said line of railway. That the said train consisted of the usual sleeping and day coaches, baggage and express car; and tiiat said train was a ‘vestibule train,’ so called, with the passageways between said cars wholly inclosed, in so-called ‘vestibules,’ each of said vestibules having an outer door opening upon the steps at the end of each of said cars, and which said so-called ‘vestibules’ were and are designed for the protection of passengers traveling upon trains operated by said defendants on said line of railway, and to enable passengers to pass -with safety through the passenger trains operated by said defendants; and that upon said train in which plaintiff was so traveling at the. time of the occurrence and consequent injury to plaintiff hereinafter mentioned there was maintained upon said train by said defend ants free and uninterrupted access through said vestibules, for the accommodation and convenience of the passengers on said train, passing through the same, both in the night and day time, from car to car.</p> <p>“Further complaining, plaintiff further alleges: That the passage from said city of St. Paul, Minnesota, over the line of said railway, to plaintiff’s destination, does and did consume several days and nights of continuous travel; and plaintiff and his said wife, while so traveling on said train as aforesaid, and on the night of December 31, 1893, were occupying berths upon the rear sleeping coach of said train, and that at the hour of about 11:30 o’clock p. m. on the night of said day the plaintiff, as he lawfully might, and for the purpose of passing to the forward end of said train upon which he was so traveling, in order to obtain from the conductor in charge of said train a stop-over cheek at a.point on said line of railway where plaintiff desired to stop over on said journey, left said rear sleeping coach, and walked through said train towards the forward end thereof, for the purpose aforesaid, and, having transacted said business with the conductor in charge thereof, plaintiff started to return-to his said berth in said rear coach at about the hour aforesaid. That at said time all of the coaches upon said train were dimly lighted, and that the vestibule connections between said several ears through which plaintiff, for the- purpose aforesaid, was compelled to and did pass had been and were by said defendants carelessly left and were in a wholly darkened condition, without any lights therein. That the outer door in one of said vestibuled connections, through which plaintiff so passed, had been by said defendants carelessly and negligently left unfastened and open, which fact was wholly unknown to this plaintiff. That plaintiff, in returning to said rear sleeping coach on said train at the time aforesaid, and in passing through said vestibule,' as he lawfully might, and without any notice or knowledge on his part that said outer vestibule door was so open as aforesaid, and without any fault or negligence on his part, fell from said train through said open outer vestibule door, so carelessly and negligently as aforesaid left unfastened and open by said defendants, and, so falling, was preeipitited from said train with great.force and violence, and then and there fell from said train, while said train was running at a rapid rate of speed, and while the same was passing over a certain lake in the state of Idaho, known as ‘.Lake Pend d’Oreille,’ on a trestle bridge about 22 feet in height above the waters of said lake, into which plaintiff fell. That plaintiff, as a result of said fall, broke and fractured the bone of his left leg between the knee and the ankle joint, and was otherwise bruised, maimed, and wounded, thereby causing plaintiff great physical pain and anguish. That said place was in an uninhabited district, with no means near at hand whereby plaintiff could obtain aid or assistance; and that, plaintiff’s fall from said train being unnoticed by the operatives thereof, the same passed rapidly beyond the sight and hearing of this plaintiff. That the point upon said bridge where plaintiff so fell as aforesaid from said train was distant about three-quarters of a mile from the shores of said lake. That the weather at that time was intensely cold, below the freezing point, and the ground covered with snow and ice; and that although plaintiff was greatly exhausted and prostrated as the result of said fall, and was suffering great pain and anguish from his said broken limb, plaintiff nevertheless, by great physical exertion, and suffering intense pain from his broken limb, and there being no other means of escape from his perilous and dangerous position, was compelled to and did climb upon the piling of said bridge to the track thereon, and with great difficulty dragged himself along said bridge to the main land; and that by reason of the unfrequented district where said occurrence took •place plaintiff was unable to and did not receive any aid or assistance until the hour of about 5 o’clock a. m. on January 1, 1894. That plaintiff’s clothing was thoroughly and completely drenched with water, and by reason of the inclement weather his clothing froze upon his person, whereby plaintiff suffered additional pain and anguish and discomfort; and that, as a consequence ;of his said injuries and the attendant results therefrom, plaintiff’s nervous system was greatly shocked and impaired, and Ms health, as a consequence thereof, has been, as plaintiff is informed and verily believes, permanently undermined and impaired; and that plaintiff was confined to his bed for a long-period of time thereafter, and suffered great mental and physical pain, anguish and suffering, caused by his said injuries and his exposure, and that he still suffers (herefrom; and, as plaintiff is informed and believes, he will never recover from the effects of his said Injuries and exposure as aforesaid.</p> <p>“Plaintiff further alleges: That the forward end of the coach upon said train into which plaintiff was endeavoring to pass at the, time he fell from said train as hereinbefore alleged bad an inclosed compartment, occupying the entire width of said car, except a narrow aisle along the side thereof; and that persons entering said car. in order to pass through the same, are required to make a sharp turn to ihe left, and pass down said aisle. That said open outer vestibule door through which plaintiff so fell was on the left hand of plaintiff as he passed through said vestibule. That plaintiff, in passing through said vestibule, saw through said open outer vestibule door, hut which opening he supposed and believed was the entrance into said car, a dim light, which shone through the windows of said car. and which light plaintiff supposed and believed was the light from the car shining through said passageway or aisle into which plaintiff supposed and believed he was passing. That when plaintiff passed out of said car, going to the forward end of said train, and a. few seconds before he returned, plaintiff, to facilitate his return, left the end door of the coach into which ho was about passing- when he fell from said car open; and that the light which plaintiff saw through said outer open vestibule door he supposed and believed was the light from said car into which he was about passing, shining through said narrow aisle; and that plaintiff, so mistaking said light, visible through said open vestibule door, for the light shining through said aisle, inrned to the left, for the purpose, as he supposed, of passing inio said aisle, and, so iurning, walked or fell through said open outer vestibule door, sustaining the injuries hereinbefore complained of.</p> <p>“Plaintiff further alleges that it was the duty of the said defendants in operating said train, aud particularly in the nighttime, to keep securely fastened and closed the outer vestibule doors on said ears, and to furnish sufficient light in said vestibules to enable passengers upon said train to pass in safety -through the same; and that plaintiff suffered and sustained said injuries wliolly by reason of the carelessness and negligence of said defendants in allowing and permitting said outer vestibule door on said train through which plaintiff fell as aforesaid to he and remain in said open and unguarded condition, and in failing: to provide lights in said cars and vestibules, by reason whereof this plaintiff, without any fault or negligence on his part, as aforesaid, fell through said open outer vestibule door, thereby sustaining the injuries herein complained of.”</p> <p>After an answer had been filed, and ihe jury impaneled to try the case, the defendants asked and obtained leave to withdraw their answer and file a demurrer to the complaint. A demurrer was thereupon filed, the ground of which was that the complaint did not state sufficient facts io constitute a cause of action. The court sustained the demurrer, and rendered a final judgment in favor of the defendants, and the plaintiff sued out this writ of error, assigning as error the ruling of the court sustaining- the demurrer.</p>

In the matter of the petition and application of the secretary of the treasury for a review, under an act of congress, approved June id, 1890, entitled “An act to simplify the laws in relation to the collection of revenues,” of the questions of law and fact involved in a decision of the board of general appraisers on duty at the port of New York, in the matter of the classification of certain T steel rails, merchandise imported by the.

<p>This was a suit by the plaintiff, as executor of Oliver Wendell Holmes, against George D. Hurst, upon an alleged copyright.</p>

<p>This was a suit in equity by Buck’s Stove & Bange Company against Frederick Kiechle and others, for an injunction and accounting of damages for alleged unfair competition in the manufacture and sale of cooking stoves and ranges. The cause was heard on demurrer to the bill.</p> <p>After stating the requisite facts to show jurisdiction, the bill avers: That, many years ago, to wit, in or about 18(5(5, the complainant adopted, as a distinguishing characteristic for its cooking stoves and ranges, white enamel lining,— that is to say, a lining of white enamel for the inside of the doors of its cooking stoves and ranges, — to the end that the trade and public might come to recognize the cooking stoves and ranges of complainant’s manufacture by this peculiarity, as a characteristic which would distinguish the cooking si ovos and ranges of' complainant’s manufacture from the cooking stoves and ranges of all oilier manufacturers of cooking stoves and ranges; the fact being that, at the lime the complainant adopted the aforesaid distinguishing characteristic, and for years thereafter, and until the actions of the defendants hereinafter complained of, no other cooking- stove manufacturer in the United States had or has made and sold cooking stoves and ranges with oven doors having the inside thereof lined with white enamel. That the similarity in general style, shape, and design of cooking stoves and ranges made by different stove manufacturers in the United Si ales, is, and has been during all the time hereinafter referred to, so very similar (bat, to the average purchaser buying a stove or range for use in the household, it is difficult to distinguish the stove or range of one manufacturer from the stove or range of another; especially so in view of the fact that the plates comprising the different parts of the stove or range can lie and readily are (alien apart and used by a rival manufacturer as patterns from which to mold a stove or range of its own in close similitude to the stove or range of the manufacturer who has obtained celebrity in the market for his goods. That complainant, since in or about 18(50, has used great skill and fidelity in the manufacture of its stoves and ranges, always enameling with white enamel the inner face of its stove and rauge doors, with the result that for years last past, and long prior to the action of defendants hereinafter complained of, its stoves and ranges had obtained great celebrity in the market of the United States, especially in the Middle, Northern, Southern, and Western states, and in the city of Evansville, Ind., as “White Enamel” stoves and ranges, and were so known by the trade and public in all the territory aforesaid, and distinguished by the trade and public from the stoves and ranges of other stove manufacturers as “White Enamel” stoves and ranges. That, in exposing stoves and ranges for sale, it is the custom and demand to show the intending purchaser the oven of the stove or range, and to open the oven door to that end, or (what is also common) to leave at least one of the oven doors open, so that ilie oven is in plain view; and that in recognition of this custom and demand, as an effective wa.y of impressing on the mind of the trade and public complainant’s sl.oves and ranges, and characterizing by a distinguishing feature its stoves and ranges from all others, it has, since 18(50, continuously used, and now uses, white enamel lining for the oven doors of its cooking stoves and ranges, with the result intended and desired as here-inbefore set forth. That its trade in the manufacture and sale of cooking stoves and ranges, with white enamel used, as aforesaid, as a distinguishing feature, has steadily increased from year to year; that it was the first to adopt the aforesaid white enamel for an inner lining for oven doors of cooking stoves and ranges; and that, but for 1he action of defendants hereinafter complained of, it would now he in the undisturbed enjoyment of the celebrity which it has earned with the trade and public Cor its cooking stoves and ranges as White Enamel sioves and ranges. That the good will of complainant in tile manufacture and sale of cooking- stoves and ranges under said name, “White Enamel,” because of said distinguishing characteristic, is of the value of 8100,000. That defendants, well knowing the promises, but seeking how they might trade on the reputation of complainant, and find a ready sale for their products, without authority of complainant, and in violation of its rights, and contrary to equity and good conscience, have recently, before the filing of this bill, made or caused to bo made cooking stoves and ranges in general external appearance similar to complainant’s manufacture, enameling the inside face of suca cooking stoves and ranges with white enamel, with the result that said cooking stoves and ranges can he, and in fact are, sold to the trade, and by the trade to the public, as “White Enamel” cooking stoves and ranges, to the manifest and irreparable injury of complainant, the actions of said defendants hereinbefore set forth being calculated to deceive, and resulting in actual deception of, the trade and public. That by reason of such wrongful conduct the complainant has suffered loss and damage in the sum of $10,000. That complainant has called the attention of defendants to its aforesaid rights, and to defendants’ wrongful conduct, and asked them to desist, which they have refused to do. That complainant has no adequate remedy at law,, and it therefore brings this suit, and prays for an injunction and for an accounting of damages.</p>

<p>1. Res Judicata — Interlocutory Decrees — Patent Oases.</p> <p>A decree awarding a perpetual injunction in a patent suit, but with an order of reference to a master to ascertain the damages suffered by the infringement, is an interlocutory, and not a final, decree, and therefore does not operate as an estoppel in a subsequent suit.</p> <p>¡2, Patents — Intekpbetation and Inminokiient— Doubm-Caebon Electric Lamps.</p> <p>The Brush patent, No. 219,208, for a double-carbon electric lamp, is not void as being for a function or result. But the claims are not to be construed as- covering the arc-forming separation of each set of carbons as it begins to bum. They are limited to mechanism of which an essential feature is the dlssimultaneo-us Initial separation of the carbons, and are not infringed by the Scribner lamp (patents Nos. 418,758, 502,535, and 502,536), in which the initial separation is simultaneous. 69 Fed. 240, affirmed. '</p>

■ Appeal from the Circuit Court of the United States for the Northern District of Illinois.

<p>Appeal from the Circuit Court of the United States for tbe Western District of Pennsylvania.</p> <p>This was a suit in equity by Stephen Jarvis Adams and S. Jarvis Adams & Co. against the Kinzer & Jones Manufacturing Company for alleged infringement of a patent for an improvement in molds for casting tubular articles. The circuit court dismissed the bill on the ground of noninfringement, and the complainants have appealed.</p> <p>The following opinion was delivered below, on January 11,1895, by</p> <p>BUFFING-TON, District Judge: On December 21, 1891, letters patent No. 465,771, issued to S. J. Adams for an improvement in molds for tubular articles. The present bill is filed by complainants, the 'owners of that patent, against the Kinzer & Jones Manufacturing Company for alleged infringement of its single claim, which is as follows:</p> <p>“A mold for tubular articles, having a matrix, a core entering the matrix from above and closing the upper end thereof, a runner extending entirely through the mold, and a gate connecting the base of the runner and the base of the matrix, these parts being contained and supported within a single flask, in combination with a level sand bed, supporting the mold, and closing the base of the runner.”</p> <p>The latter company justify their making and using the alleged'infringing device under letters patent No. 410,285, issued to Jacob Kinzer September 3, 1889. The alleged infringing device is in fact, the one shown by said patent. Being prior in date to Adam’s patent, Kinzer’s forms a complete answer to the bill; but, to avoid the effect of this prior patent, Adams avers that he invented the device in question prior to Kinzer. The subject-matter of the two patents is a device-for casting axle boxes and other tubular articles. Prior thereto, in casting axle boxes, molten metal was poured through a sprue at the top of the matrix. Unless the matrix walls and core sides were hard and firm, the pouring of the metal was liable to cut the;m. This made the casting faulty, either by reason of rough surfaces, or by flaws caused by the presence in it of the cut sand. On the other hand, in attempting to get a solidity capable of withstanding this cutting process, the cores and walls were liable to be made so dense as to cause scabs on the. castings. So far as axle-box castings are concerned, these difficulties, with others that need not be set forth, were overcome by the devices shown in the two patents. This was done by pouring the molten metal through a runner ex-1 ending to the bottom of the matrix, and through the entire body of the sand, thus causing the metal to well up from below, and without any cutting action, when the mold was placed in combination with a level, supporting sand bed, which closed the base of the runner. By these devices, also, two-part flasks were dispensed with in this character of castings. But while this method of the metal entering from</p> <p> </p> <p>below was new as applied to axle-box castings, it had been previously applied to several other kinds of castings. Since 18GB it had been used in a two-part flask in the castings of bushings and plungers for steamboat pumps; since 1885, in guide-point molds; and at least since August, 1887, in pipe-ball molds, in which a side runner reached three-fourth way to the bottom of the matrix. Kinzer’s application was filed March 5, 1889, and the patent issued September 3d, following. It showed a pouring runner extending through the flash, and entering a gate provided with arms, by means of which, when placed on the casting floor, the metal entered the matrix from below. The core was seated in core seats at either end, formed in the sand itself, and the whole was formed in the single body of sand, by which the use of two-part flasks was avoided. Adams’ application was filed September 30, 1889. Fig. 2 thereof shows what is known as a “Kentucky axle-box mold.” In it a pattern was used which is larger at each end than in the middle, and is consequently in two parts, one of which is withdrawn from each end. Ring or cup cores, designated in the patent as “auxiliary cores,” are seated in seats or prints at the base of the matrix, and in these the principal or central cores are centered. Fig. 3 is intended for casting tubular articles, where the pattern is straight, or tapers towards the lower end. It can therefore be wholly withdrawn from the upper end. The matrix being wholly closed at the lower end by the sand of the mold, no auxiliary cores are or can be used, and the central core is centered at the base in core prints, molded by the prints on the patterns themselves.</p> <p>An interference, which was limited to the device shown by Fig. 3 of Adams’ patent, was granted between Kinzer and Adams, and resulted in the final decision by the commissioner that Adams was the prior inventor of device Ño. 2, and Kinzer of No. 3. While the commissioner subsequently modified his opinion to the extent of rescinding his direction to the primary examiner to erase Fig. 3 from Adams’ application, yet there was no change or modification of the finding that Kinzer was the prior inventor of the device shown by Fig. 3 of the Adams application. Irrespective of the weight to be given such findings, as noted in Morgan v. Daniels, 153 U. S. 125, 14 Sup. Ct. 772, and upon a careful, independent examination of the testimony bearing on that point, which is much fuller than that taken in the patent office, we have reached the same conclusion which was there arrived at, and are of opinion that Adams has not shown that, as to Kinzer, he was the prior inventor of the device shown in Fig. 3, or, indeed, that he (Adams) invented it at any time. The evidence shows that in November, 1877, Mr. Adams had in operation, in his firm’s foundry, his Kentucky axle-box mold, which is shown in Fig. 2 of his application. In August or September, 1887, pipe balls were being cast in the foundry in a mold where the core was seated at the base, in the body of the sand. A runner extended down about three-fourths through the body of the sand, turned at right angles, and entered the matrix at the bend of the ball. In December, 1887, one Elliott, the molder in charge of this pipe-ball casting, having seen the process of pouring the Kentucky axle-box mold, in which the metal entered at the base of the matrix, conceived the idea of applying the same method of pouring to the pipe-ball molds, or, in other words, of extending the runner the remaining quarter of the way through the entire body of the sand; cutting the gate at right angles from the runner to the matrix, and placing the flask on a casting floor, so the latter would close the gate. If this constituted invention, such invention was not Mr. Adams’ work. There is nothing to connect him with the original conception, or its reduction to practice, except the fact that it was done in the foundry of the firm of which he was a member, and by one of the firm’s employés. Indeed, in the testimony he has not personally claimed it as his own. As between Adams and Kinzer, there can be no question that Adams has not shown that he was the prior inventor of the device shown in Fig. 3. Whether the testimony on the part of the re-, spondents is sufficient to establish an invention of this device at a time earlier than Elliott, we do not deem it necessary to now decide. For present purposes, it is sufficient to say that, so far as Mr. Adams is concerned, he has not shown that the device shown in Fig. 3 was invented by him at any time; and this, of course, is an end of the case, unless the invention disclosed in Fig. 2, of which he was confessedly the inventor, was of such a primary character as to include the device shown in Fig. 3. We do not regard it as of that character. While it may have been a step in advance in the molder’s art, it was not such a stride as made it a pioneer. The field was by no means a new one. in the prior art was found the guide-point mold, where a runner extended through the entire body of the sand, and in combination with this a level sand bed, supporting the mold and closing the base of the runner. In defendant’s Exhibit A we have a two-part flask in use for 25 years before the present patent issued, in which a runner extends through the cope, and reaches the matrix at its base, thus allowing the metal to enter from below. In the Rider patent of 1875 the matrix is formed in one body of sa.nd, and the core is centered in the body of the sand itself. However broad this claim inay seem to be, in view of the prior state of the art;, of the finding by the patent authorities that Mr. Adams was not the prior inventor of device 3fo. 3, — a finding in which we concur, — we are of opinion that the claim must not be construed to cover a device such as the alleged infringing one, where the core is seated at the base of the matrix, in the body of the sand itself, and no separate, auxiliary ring or cup cores are employed. Such being our conclusion, we hold the defense of noninfringement is established, and the bill should be dismissed.</p> <p>ACHE SO X, Circuit Judge, concurs.</p>

<p>This was a suit in equity by the Edison Electric Light Company against J. George Kaelber for alleged infringement of a patent.</p>

This was a suit in equity by William Dodge and others against Post & Co. and others for infringement of a patent for a separable pulley. Pinal hearing on the merits.

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This suit was brought by Mast, Foos & Co. and William D. Hooker, the appellants, against the Iowa Windmill & Pump Company, the appellee, to restrain the infringement of claims 1, 2, 3, and 4 of patent No. 8,631, reissued to Roscoe Bean under date of March 25, 1879, the original patent being No. 175,588, dated April 4, 1876; also to restrain! the infringement of certain claims of patents No. 339,445 and No. 259,394, which patents were issued, respectively, to Samuel W. Martin under date of April 6, 1886, and to William D. Hooker under date of June 13,1882. Defenses were interposed by the defendant below to the entire bill. The circuit .court sustained the charge of infringement so far as it related to the two patents, Nos. 339,445 and 259,394, issued to Samuel W. Martin and to William D. Hooker, and granted the relief prayed for as to those patents. It held, however,' that the first, second, third, and fourth claims of reissued letters patent No. 8,631, granted to Roscoe Bean on March 25, 1879, were void. It accordingly dismissed the bill in so far as it was founded upon the claims of that patent. 68 Fed. 2Í3. The complainants below have appealed from that part of the decree holding certain claims of the reissued patent to be void. The controversy therefore relates wholly to the validity of the first .four claims of the reissued patent. The following are copies of the specifications of the original patent, No. 175,588, issued to Roscoe Bean on April 4, 1876, and of the reissued letters patent founded thereon, dated March 25,1S79. For convenient comparison, the specifications have been placed in opposite columns; and, for the purpose of more clearly indicating certain changes that were made in the original specification, some parts of the specifications are printed in italics:</p> <p>Original. .</p> <p>The nature of my invention consists in the construction and novel arrangement of a pump stock, connected with the cylinder by two tubes, one forming an air chamber and the other the discharge pipe; said tubes opening into the cylinder directly opposite each other, as will be hereinafter more fully set forth.</p> <p>Reissue.</p> <p>The nature of my invention relates to force pumps, and if consists in a tubular air chamber attached to the pump stock or platform flange, and connecting to and opening into the cylinder or chamber, and forming also a support for the same.</p> <p>My invention further consists in a supporting tubular air chamber and discharge pipe attached to the pump stock or flange plate, and connecting with and opening into a cylinder or chamber; also, in the combination of parts as will be hereinafter more fully set forth andnoint-ed out in the claims.</p> <p>A represents an ordinary pump or pump stock as used above ground. B is the pump cylinder, connected to the pump, A, by means ol two tubos, O and D. The lower ends of these tubes are screwed into pieties, a, a, between whieh the cylinder, B, is placed, and the parts then firmly bolted together; the pieces or elbows, a, a, open into the cylinder on opposite sides thereof, and in the same horizontal plane. The tube, G, is closed at its upper end. and forms, not only a support lor the pump, but also the air chamber. This air chamber, being in the form of a tube, has a direct action on the water, and also has greater power for forcing water, as well as to give it a more steady action. The pipe, I), extends up along the pump stock, A, and forms the discharge pipe as well as the second support for the pump cylinder. By this mode of connecting the pump stock and cylinder a substantial support is formed for the cylinder, and it is very simple and readily put together. By these means, also, the cylinder is placed down in the ■well below the freezing point; and in cisterns, or whore the cylinder is submerged, it will not fill up with water, and at the same time connects and supports the cylinder, however deep the well may be.</p> <p>By having two holes in the cylinder (one for discharge and one for the air chamber), it gives a place for the air chamber to have a direct action on the water while in use; giving it an even, steady stream, and a direct discharge for the water, independent of the air chamber. ,</p> <p>Having thus fully described my invention, what I claim as new, and desire to secure by letters patent, is:</p> <p>(1) The combination of the pump stock, A, and cylinder, B, with the pipe, O, forming the air chamber, as well as the supporter between the pump and cylinder, substantially as herein set forth.</p> <p>(2) The combination of the pump stock, A, and cylinder, B, with the tubular air chamber, G, and discharge pipe, 1), forming connection between the pump and cylinder, substantially as herein set forth.</p> <p>(3) The cylinder, B, having the air chamber and discharge pipe opening into the same on opposite sides, substantially as and for the purposes herein set forth.</p> <p>A represents an ordinary pump stock connected to the platform flange or flange plato, A'. B is the pump cylinder, connected to the pump stock, A, or flange, A', by means of two tubes, C and D. The lower ends of these tubes connect with the cylinder, B, and open into the same, or into a chamber, a, interposed in any suitable manner, the object being simiñy to form a connection between said cylinder and the tubes.</p> <p>The tube, C, is closed at its upper end, and forms, not only a support for the pump, hut also the air chamber. This air chambox-, being in the form of a tube, has a direct action on the water, and has also greater power for forcing water, as well as 1 o give it a more steady action.</p> <p>The pipo, I), extends a suitable distance above the flange, A', and forms the discharge pipe as well as the second support for the pump cylinder.</p> <p>By this mode of connecting the pump stock or flange with the cylinder or chamber, a substantial support is formed, which is very simple and readily put together. By these means, also, the cylinder may be placed down in the well below the freezing point; and in cisterns, or whei’e the cylinder is submerged, it will not fill up with water, and at the same time connects and supports the cylinder, however deep the well ma,y be.</p> <p>By having two openings (one for the discharge and one lor the air chamber), it gives a place for the air to have a direct action on the water while in use, giving it an even, steady stream, and a direct discharge for the water, independent of the air chamber.</p> <p>Having thus fully described my invention, what I claim as new, and desire to secure by letters patent, is:</p> <p>(1) A supporting tubular air chamber attached to pump stock or platform flange, connecting to and opening into a cylinder or chamber.</p> <p>(S) A supporting tubular air chamber and discharge pipe attached to pump stock or flange plato, connecting to and opening into a cylinder or chamber.</p> <p>(3) In a pump a tubular air chamber forming a support for the lower part o f the pump, and connecting the same with the upper part, substantially, as herein set forth.</p> <p>(4) In a pump a tubular air chamber and discharge tube, forming supports for the lower pa/rt of the pump, and connecting the same with the upper part, substantially as herein set forth.</p> <p>(5) The cylinder, B, having the air chamber and discharge pipe opening into the same on opposite sides, substantially as and for the purposes herein set forth.</p> <p>The subjoined figures, 1 and 2, are copies of the drawings attached to the original patent of Roscoe Bean to illustrate his invention. Pig. 3 represents a kind of pump that appears to have been manufactured and placed on the market subsequent to the date of the original Bean patent, but prior to the grant of the reissued letters patent No. 8,631. ></p> <p> </p>

This was a suit in equity by J. P. Baldwin and the Miller, Du Brul & Peters Manufacturing Company against Charles Kresl and John H. Mallue for alleged infringement of a patent for cigar molds. The circuit court dismissed the bill, and the complainants have appealed.

<p>This was a bill by Jacob V. Rowlett against Francis S. Anderson and others for alleged infringement of a patent relating to lawn mowers.</p>

<p>Bottomry and Respondentia Bond Invalid, as Unnecessary and without Communication — Poet on Refuge — Repair of Ship — Seaworthiness Upheld— Bureau Yeeitas Certificate — General Average.</p> <p>The bark Mauna Loa, with a cargo of nitrates shipped at Chili for New York, sprung a leak after proceeding about 1,500 miles on her voyage and put into Valparaiso for repairs, where she had to unload her cargo, involving some loss; by arrangement between tbe libellants and the ship owners at New York, the latter remitted a cable credit for the estimated expenses of repairing the ship, as well as for the ship’s estimated share of general average charges, on the understanding that the libellants would advance tbeir share of the general average chargeable against the cargo. The libellants’ agents at Valpariso were also agents of the ship at that, place. The libellants instructed the agents to take a respondentia bond for the cargo’s share of the general ave.rage. The agents took from the master a bottomry and respondentia bond, considering that the ship owners had not advanced their whole share. The bond was taken without noiice to the shipowners, who were in good credit and prepared to furnish on nolice by telegraph any further money that might be needed. The agents themselves, after advertisement, took the bottomry and respon-dentia bond from the master, ’and afterwards assigned it to the libellants. The bond embraced about $8,000 for premiums and various charges beyond the actual advances. Held: (1) That the bottomry bond was invalid, as an express contract, for want of communication with the owners; also as being taken without necessity and contrary to the libellants’ instructions; but that the ship was answerable for any deficiency in the sum paid for her share of the general average charges; (2) that upon the conflicting testimony as to the seaworthiness of the ship at the time she sailed, the fact that her certificate Issued by the Bureau Veritas had just expired was not conclusive; and that upon all the circumstances, including the contemporaneous judgment at Valparaiso, the seaworthiness of the vessel should be sustained; and that the cost of putting in to Valparaiso and of unloading the cargo were, therefore, valid charges in general average.</p>

<p>The steamship Willamette Valley, formerly owned by the Oregon Pacific Railroad Company, having been sold to satisfy various maritime liens proved against her, the receiver of the company petitioned the court for the surplus proceeds. Counter petitions were also filed hy several creditors of the Oregon Pacific Railroad Company.</p> <p>This corporation was insolvent, and, by virtue of a certain action to foreclose a mortgage held against it by the Farmers’ Loan & Trust Company, instituted in the circuit court of the state of Oregon, in and for Benton county, all of its property, including the steamship Willamette Valley, was placed in the possession and under the control of a receiver appointed and acting under the orders of that court. Subsequently the road and property of the company were sold to satisfy the decree of foreclosure, and, upon confirmation of the sale, the then acting receiver, Charles Clark, was discharged, and exonerated from his trust, except as to this surplus fund, which he now seeks to obtain as against the claims of these various «•editors. These claims are as follows: (1) That oí W. A. Swinerton, who petitions to have a common-law judgment, which he obtained in the courts of this state, satisfied out of the surplus. (2) That of A. J. Storrs, the master, who claims his wages as such by virtue of certain services rendered as pilot of the steamship. (3) That of the sureties given to secure the release of the steamship when she was first libeled, by reason of which they had to pay the decree and costs. They also ask for an allowance for counsel’s fees. (4) Several holders of receiver’s certificates, claiming a lien on the vessel, also petition to he given priority over other petitioners, and to he awarded the surplus in full or partial satisfaction of their demands. Surplus awarded to the receiver, and the counter petitions dismissed; all costs to be first deducted from the surplus.</p>

These were libels by the Canadian-Australian Steamship Line and by the Pacific Improvement Company, owner of the steamship Mineóla, and A. F. Pillsbury, master of said vessel, against the British steamship Strathnevis.

<p>Collision — Fog—Anchoring in Channelway — Choice of Anchorage Grounds —Letting Chain Run.</p> <p>The S. S. Ailsa, outward bound from New York, anchored in the channel-way in dense fog a little below Ft. Lafayette. The customary anchorage of vessels outward bound was. in Gravesend Bay to the eastward of the A.’s place of anchorage. The large steamship Bourgogne, going down-about an hour afterwards, and seeking anchorage at Gravesend Bay, ran into the A. Held (1) that the Ailsa was in fault for negligent navigation in not going within anchorage limits, having means of knowledge, both by soundings and by the course of other vessels passing near her, that she was off of anchorage ground and in an improper position, and also for not letting her chain run when the B. was seen approaching; (2) that the B., having no reason to expect any vessel to be anchored in the channelway, had a right to proceed to the anchorage In Gravesend Bay just below Ft. Lafayette, the customary and appropriate anchorage ground for vessels of her class; and that she was not in fault for not anchoring at a less convenient and appropriate place above the Fort.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p> <p>This was a libel by the New England Dredging Company against the steamer D. F. Miller, the Merchants & Miners Transportation Company, claimant, to recover damages resulting from two collisions of the steamer with the libelant’s barge or dredge. The district court rendered a decree for the libelant, and the claimant has appealed.</p>

<p>These were cross libels in rem to recover damages resulting from a collision.</p>

<p>Fedekal Courts — Jurisdiction — Diverse Citizenship — Assigned Cause of Action.</p> <p>A mortgagee, holding by assignment a contract made between two corporations of the same state, cannot sue in a federal court for the specific performance of such contract, though itself a corporation of another state.</p>

This was a suit by the Concord Coal Company and others against John J. Haley and others. A claimant upon the fund in controversy sought to remove the case into the United States circuit court on the ground of diverse citizenship.

The principal cause in the court below was a suit by the Illinois Trust & Savings Bank, as trustee of a first mortgage of the railway lines and other property of the Seattle Electric Railway & Power Company, for tire foreclosure of that mortgage. That suit was begun December 31, 1894.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This was an action upon a promissory note by the Interstate National Bank oí' Kansas City, Kan., against the Florence Oil & Refining Company a.nd William E. Johnson. From a judgment entered in favor of plaintiff after the overruling of a demurrer to the complaint, defendants brought err •.</p>

This was a suit by Moses H. Gone against the Tuscaloosa Manufacturing Company. The cause was heard on a motion by -the defendant to set aside the service of summons.

This was a suit in equity by S. B. Thompson, receiver of the Central Nebraska National Bank, against the German Insurance Company and others, to recover the amount of an assessment upon certain shares of stock. Demurrers to the bill were sustained and the bill dismissed. Complainant thereupon filed an amended bill (77 Fed. 258), which upon demurrer was also dismissed.

<p>This was a bill in equity, filed by the United States against the Joint Traffic Association to enjoin alleged violations of the interstate commerce law.</p>

This was a bill by Warren O. McClure against F. O. Adams to quiet title to certain realty situated in Harlan county, Neb. The cause was submitted on pleadings and proofs.

<p>These were appeals in two suits in equity, one of which was heard and determined by the circuit court for the Northern district of Iowa, and the other in the circuit court for the district of Nebraska. See 65 Fed. 559, and 68 Fed. 72. On April IS, 1896, this court affirmed the decrees below, without any opinion, the two judges sitting being divided in opinion. The appellants have now moved for a rehearing.</p>

<p>1. Det'BS — CONPIIHSNTIAL RELATIONS — BURDEN OP PliOOP.</p> <p>When a deed is attacked on the ground of fraud in the grantee, by taking advantage of confidential relations between himself and the grantor, and the answer admits such relations, the burden is upon the grantee to show that the grantor was not influenced by these relations in making the deed.</p> <p>2. Sam’5 — Pleading.</p> <p>When confidential relations between the parties to a conveyance are admitted in a suit to set the same aside, the grantee cannot deny knowledge, information, or belief as to whether the grantor yielded to his solicitations or directions; nor is it enough to say that the grantor was in need of ready money, which the grantee advanced, and that the deed was executed without fraud, duress, or undue influence. The answer must set forth facts going to ¿how that the deed did not result from such confidential relations, and it should also appear that the grantor had independent advice.</p>

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

<p>This was an action by Frederick Miles against Susan L. Roberts and others, executors of Marshall O. Roberts, to recover upon the testator’s warranty of certain corporate bonds.</p>

■ In Error to tbe Circuit Court of the United States for the Western Division of the District of Washington. This was an action brought by Chester H. Keihl, as receiver of the South Bend Water Company, against the city of South Bend, to recover money alleged to be due said company as rentals for 'the use of hydrants. The case is brought here by writ of error.

<p>This was a suit by Ludwig Westenfelder against Flora E. Green, Obed Green, and Frederick Westenfelder, to quiet title to a certain parcel of land.</p>

In Error i.o the Circuit Court of the United States for the District of Washington, Northern Division. This was an action by the Merchants’ Exchange Bank of Milwaukee, Wis., against John H. McOraw, sheriff, to recover damages for the alleged wrongful conversion of 100 bales of hops. From a judgment in favor of defendant, plaintiff brings error.

<p>Í» Affidavit of Defense — Set-Off.</p> <p>An affidavit of defense, under the Pennsylvania practice, to an action for the price of cement, which claims a set-off because of inferior quality, whereby the ceilings and walls of buildings erected by defendants cracked, and part of the floors broke and fell out, is insufficient, where the extent of the damage, the amount of the various items of loss, or the cost of repairs are not specifically stated.</p> <p>K. Same.</p> <p>An affidavit of defense to an action for the price of cement, which claims a set-off because of inferior quality, whereby defendants’ building construction was defective, so that Ihey lost other contracts, and the value of a patent under which they were operating was impaired, is insufficient, where the contracts lost are not specified, only the gross amount of damages is averred, and the losses are not shown to be connected with the contract of sale,</p>

This was an action brought by J. It. Marks and others against the Northern Pacific Railroad Company. From a judgment in favor of defendant, plaintiffs bring error.

<p>Corporations — Transfer of Stock -Executory Agreement — Stockholders.</p> <p>Defendant agreed to purchase 1,000 shares of a certain stock from a syndicate, but before the stock was issued to such syndicate he refused to take 400 of the shares. When the stock was issued, the trustee of the syndicate executed an assignment of the 1,000 shares to the defendant, and the corporation, at such trustee’s request, transferred the stock to defendant upon its ledger. Two certificates were issued, but the one for the 400 shares in question defendant never took, and it remained in the possession of the corporation. Held that, as to the 400 shares, he was not liable as a stockholder, his agreement being merely an executory engagement for the purchase of shares, which, while rendering him liable in damages for a breach on refusal to perform, did not authorize a transfer of the shares to him on the books of the corporation.</p>

This was an action by Richard J. Swancoat against Charles Remsen and others. The cace was heard on objections made by the plaintiff to the marshal’s fees.

This was an appeal by Chnng Shee, a Chinese woman, from an order of deportation made by a United States commissioner. The district court reversed the order of the commissioner, and discharged thie prisoner (71 Fed. 277), and the United States have sued out this writ of error.

This was a petition by Donald 0. McGregor for a writ of habeas corpus, to be directed to John. Cone, sheriff of Linn county,. Iowa, to procure his release from imprisonment under the alleged authority of a warrant issued by a justice of the peace of Rapids township, in said county.

This is an appeal by the defendant from a decree of the circuit court, Southern district of New Yorfc, enjoining defendant from using, the words “Hoff’s Malt Extract” on its labels or advertisements, unless preceded by the name “Leopold.” The circuit court refused any further relief to complainant, and directed the decree to be entered without costs. In such disposition of the case complainant acquiesced, and it has taken no app'eal. Both parties are corporations.

<p>Col.'V RIGHT — TxFXtIXGEMKNT—C< HI l’O V SYSTEMS.</p> <p>Plaintiff issued a copyrighted pamphlet containing advertisements of the various merchants composing an association, and explaining its coupon system, tire main features of which were the giving of coupons with each cash purchase, the delivery of a certain number thereof to ihe manager of the association, a.nd receiving therefor an order for a premium selected from a given list Defendants issued a folded paper, which contained advertisements, and explained their coupon system, which was similar in some respects to that of the plaintiff. But by defendants’ plan, upon presentation of a specified number of coupons, the holder received an order which could be used as cash in the purchase of any article at any store in the combination. Held, that there was no infringement.</p>

Appeal irom the Circuit Court of the United States for the Eastern District of Missouri. This is an appeal from a decree which dismissed- a bill brought by the appellant, the P. H. Murphy Manufacturing Company, against the appellee, the Excelsior Car-Roof Company, for the infringement of letters patent No. 414,069, issued to Peter H. Murphy on October 29,1889, for an improvement in car roofs.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>This was a suit in equity by William Campbell and J. J. Smith against Thomas De Q. Richardson and others for alleged infringement of a patent for an improvement in garment hooks. The circuit court sustained the patent, and found that defendants had infringed, and decreed accordingly. 72 Fed. 525. The defendants have appealed.</p>

This was a suit in equity by the Brunswick-Balke-Collender Company against the Phelan Billiard Ball Company for .alleged infringement of a patent for an improvement in pool-ball frames.

<p>This was a suit by Foster, Paul & Co. against Wertheimer & Co. for infringement of a patent for a glove-fastening device.</p>

This is a suit in equity by the Independent Electric Company against the Jeffrey Manufacturing Company and others for alleged infringement of a patent for an improvement in mining machinery.

<p>This was a suit in equity by G-eorge B. Owen against W. 0. Ladd for alleged infringement of a patent for a gong bell.</p>

This was a bill in personam by the Pacific Coast Steamship Company against Eben W. Ferguson and others. From a decree of the district court dismissing the libel for want of jurisdiction (70 Fed. 870), the company appealed.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a libel in admiralty by Domenico Penco, master of the bark Armonia, against John Cory & Sons, owners of the steamship Redruth, to recover damages caused by a collision between the two vessels. In the district court a decree was entered for the libelant (67 Fed. 362), and the respondents appealed. The appellants have now moved this court, for the reasons given in the affidavit set out below, for leave to file certain further assignments of error, or, in the alternative, that the cause he remanded to the district court with leave to the appellants to file such assignments of error there, and have the same added to the record, and the record then returned to this court, pursuant to the appeal. The additional assignments of error which the appellants desire to file are as follows:</p> <p>The appellants assign further error to the final decision of the district court herein, as follows: (a) For that the court omitted to find and hold that the only negligence, if any, of those on hoard the Redruth, which contributed to the collision, was that of a, compulsory pilot, (b) For that the court omitted to find and hold that the respondents and appellants, in an action in personam, were not liable for damages caused by the negligence of a pilot compulsorily employed.</p> <p>The allegations of the affidavit filed in support of this motion were as follows:</p> <p>J. Parker Kirlin, being duly sworn, says: I am one of the counsel for the appellants herein, and personally tried the case on the merits before Judge Butler in the district court. The case was one arising upon the libel o? Domenico Benco, as master of tin» Italian bark Armonía, against John Cory .and James Herbert Oory, owners of the English steamship Bedruth, for damages sustained in a collision between Hie vessels in Delaware Bay on the morning of the 22d of April, 1893. Process of foreign attachment was issued under the libel, and levied upon the appellants’ steamship Kuperra. No process was ever issued against the Bedruth; said vessel being absent from the jurisdiction at the time the libel was filed, and at all times thereafter, down to the present. At the time of the said collision said steamship Bedruth was in charge of, and being navigated by, Henry 0. Long, a Pennsylvania pilot; the vessel being then upon the pilotage grounds, to wit, between the Ledge light, and Brandywine light, in the Delaware Bay. It was alleged in the libel (article 10) that the collision was “caused solely by the negligence of the officers and crew of the said steamship Redruth” in failing to avoid the bark which was lying at anchor, — an allegation which was denied in the tenth article of the amended answer. One oí the principal issues litigated in the district court was as to whether the Armenia was exhibiting an anchor light, as required by law, at the time of the collision. Judge Butler sustained the libel-ant’s allegation that the light was up (67 Bed. 362, 365), and had been reported to the pilot by the lookout. In his opinion, he says: “The pilot recollects the report [of the light], but explains iliat the light was not on the bark. The explanation, however, is not very satisfactory.” Id. p. 365. The lookout, the wheelman, and the pilot, and the pilot of another ship, which went down a few moments before, testified there was no light upon the bark; but, assuming the court’s finding to be correct, — that the light was up, — the responsibility of avoiding it would appear to have rested with the pilot, as the second officer, who was on the watch, would not ordinarily be 'expected to distinguish fixed lights from vessel lights, nor to interpose to take the control of the vessel away from the pilot, when approaching a light on pilotage grounds. It has been decided by tbe honorable William G. Oboate, Ex-Jndge of the United States district court for the Southern district of New York, acting as referee in the case of Homer Bamsdell Transp. Co: v. Compagnie Generate Trans-atlantique, 63 Fed. 845, that the shipowner is not liable in an action in per-sonam for damages caused by the negligence of a pilot compulsorily taken, for the' reason that such pilot is not his servant nor his agent. The volume (63) of the Federal Reporter in which this case was reported was not delivered to the profession in New York, as T am advised, until the month of March, 1895, during which this case was tried before Judge Butler. In point of fact, the decision did not come under my notice for considerable time thereafter. As this matter had not been dismissed or decided, so far as I am aware, in an admiralty case, for many years, the point, although in my judgment well founded, was not discussed before or decided by Judge Butler in the district court, and accordingly was not nado the subject of a specific assignment of 'error. It is material and important for ihe interest of the appellants, in my judgment, that they should have an opportunity to take the judgment of the court upon this point upon the appeal, which it has been decided is'a new trial; and although, perhaps, some, of the assignments of error already filed are broad, enough to cover the. point, leave is respectfully asked to file distinct assignments of error in this court, giving clear notice of the point, or, in the alternative, and if that be the correct practice, that the cause be remanded to the district court, with directions to have the assignments of error added in that court, and the record thereafter returned, as amended, for consideration pursuant to the appeal.</p> <p>Henry R. Edmunds and J„ Parker Kirlin, for the motion, filed a brief, which, so far as it related to the authority of this court to permit the filing of additional assignments of error here, read as follows:</p> <p>The court has jurisdiction to permit further assignments of error to be filed here. In section 11 of the act establishing this court (chapter 517 of the Acts of 1891), it is provided; “And all provisions of law now in force, regulating the methods and system of review through appeals, or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this net, in respect to the circuit conn of appeals.” The method and system of review through appeals in admiralty cases, thus referred to, was the system applicable to an appeal to the circuit court. Under that method and system an appeal in admiralty was a new trial, in which, it was the right of a party to have the case completely reified upon new pleadings, and upon other testimony. In The Charles Morgan, 115 U. 8. 75, 5 Sup. Ct. 1175. the court said: “In The Imeille, 19 Wall. 74, it was decided that an appeal in admiralty from ihe district court to the circuit, court has the effect to supersede and vacate the decree from which it was taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or if asked for, is contemplated, — a trial in which the judgment of the court below is regarded as though it had never been rendered.” Amongst the provisions of law relating to appeals which were in force at the lime the act of 1891 was passed was section 802 of the Revised Statures, which provided: “The mode of x>roof in causes of equity and of admiralty and maritime jurisdiction shall be according to the rules now or hereinafter prescribed by the supremo court.” Admiralty rule. 50, which was thus given the effect of a statute, piovidod: “When oral evidence shall he taken down by the. clerk of the district court, pursuant to the above mentioned section of the act of congress [section 30 of September 24, 1789]. and shall be transmitted to the circuit, the same may be used in evidence on the appeal, saving to each party the right, to take the depositions of the same witnesses or either of iliem, if he should so elect.” The conclusion from these provisions of law seems irresistible that congress Intended to preserve and continue in force the former system of new' trials in admiralty cases on appeal, and that this court: would hare jurisdiction to permit entirely new pleadings in the present case, and to permit the examination of the witnesses called in the district court, as well as the examination of new witnesses; and apparently, under rule 50, “the right to lake the depositions of the same witnesses, or either of them, if he should so elect,” is absolut e.</p> <p>It has been decided in some of the circuits that the present appeal in admiralty is a new trial. The T-iavilali, 1 IT. S. Apj. 3, 1 O. O. A. 77, and 48 Fed. 084. In Bumll v. Grossman, 35 (J. S. App. (¡08, 16 O. 0. A. ,381, and 09 Fed. 747, new pleadings were permitted to be filed in the circuit court of appeals, and evidence there taken in a cause which was decided in the district court on exceptions. Hule 11 of this court (11 O. O. A. eii., 47 Fed. vi.), providing that assignments of error shall be filed with the clerk of the court below, docs not cover a. case whore, from inadvertence or oversight, some material error may not have been assigned, and the defect is sought to be cured by stating further assignments. The jurisdiction of the court, extending, as it does, to flic retrial of the whole cause, and a restatement of the issues, would seem plainly to include power to permit additional or amendatory assignments of error; and not to permit a further assignment in sncli case, upon seasonable application, would amount to a virtual qualification of that pa.pt of the act of 1891 which saves to the appellant Ills right to a full trial de novo. Under the former practice, the supreme court sanctioned a wide latitude in bringing up wholly new matters upon appeal. In Uivorpool & G. W. Steam Go. v. Plienix Ins. Óo., 129 U. S. 397, 9 Sup. Gt. 474, the question of applying foreign law was considered by the court, although it had not been raised In the district court, and no application had been made to raise it in the circuit court until after the decision there had been rendered. The supreme court nevertheless '■onsidered the question, but, finding foreign law was not to lie applied, it had no occasion to make an actual ruling on the question of permitting an amendment, but plainly intimated that, if it had found the point well grounded, an amendment would have been permitted even at that late day. The court said: “But it appears by the supplemental record, certified to this court: in obedience to a. writ of certiorari, that after the circuit court had delivered its opinion and filed its findings of fact and conclusions of law, and before the entry of a final decree, the appellant moved for leave to amend the answer. by averring the existence of the British law, and its applicability to this case, and to prove that law, and that the motion was denied by the circuit court because the proposed allegation (lid not set up any fact unknown to the appellant at the time of filing the original answer, and could not be allowed under the rules of that court. The Montana, 22 Blatchf. 402-401, 22 Fed. 730. On such a question we should be slow to overrule a decision of the circuit court. But we are not ’prepared to say that if, upon full consideration, justice should appear to require it, we might not do so, and order the case to be remanded to that court, ‘with directions to allow the answer to be amended, and proof of the foreign 'law to be introduced. The Adeline, 0 Cranch, 244, 284; The Marianna Flora, 11 Wheat. 1, 38; The Charles Morgan, 115 U. S. 69, 5 Sup. Ct. 1172; Insurance Co. v. Allen, 121 U. S. 67, 7 Sup. Ct. 821; The Gazelle, 128 U. S. 474, 9 Sup. Ct. 139.</p> <p>Neither of the parties can justly claim that the rule which exempts the shipowner from liability for default of a, compulsory pilot would operate harshly upon their rights, because such is the law both of Italy, to which the Armonía belonged, and of England, the home of the appellants. In Autran’s Code In■ternational de L’Abordage Maritime, the law of Italy on this subject is stated ■as follows: “If a vessel, which is placed under the direction of a pilot, causes 'damage to another vessel, the pilot only responds for the damage. Neither the captain nor the owner of the vessel shall be civilly responsible.” As authority, Mr. Autran cites a decision of the court of cassation of Florence, March 23, 1876, reported in Clunefc (1878) p. 91. It is found in The China, '7 Wall. 53, that the English law is to the same effect</p>

<p>.Marine Insurance — Lloyds’ Pol toy — Several Liability to the Assured for Whole Subscription — Contribution.</p> <p>A Lloyds’ policy insured for .‘4,000 the lighter A., valued at 84,000. The policy was a printed form, with the printed signatures of 30 individuáis, issued and signed by one common attorney. It provided that each subscriber should be severally but, not jointly, “liable for Vaotb. of $1,000.” In the rider was the clause: ‘"Ail insurance covering the property hereby insured shall contribute simultaneously and for their respective amounts without regard to dates.” Two other policies on the same vessel in other companies, insured for $3,000, hie residue of her value. On the failure of the defendant company to pay, alter a loss amounting to $1,015.53: Meld (1) that the rider clause had reference only to an apportionment of the loss as between different policies on the same vessel, and had no reference to the liability of the different subscribers to the assured for the amount apportionable to this policy; (2) that this policy under the rider clause was accountable for 14 of the whole loss; (3) that in the absence of anything in the policy modifying the common law rule, the assured was entitled to call upon any of the subscribers to pay the stipulated amount of his legal liability, viz., V;¡o of $1,000, until the loss apportionable to this policy was satisfied; and that any of the subscribers paying more than their share, as between themselves, must look to their associates for contribution.</p>

This was a libel for salvage, filed by Robert Rogers and others against the canal boat O. C. Hanchett and cargo, Nicholas Wiedener and others being claimants of ¿lie boat, and C. H. Abbott claimant of the cargo. The district court entered a decree for complainants for $500, and the complainants have appealed therefrom, on the ground that the sum awarded was not sufficient in amount.

<p>Railroads — Receivers-*-Priority—Sliu'Lies.</p>

This was a writ of scire facias sued out by the Pullman’s Palace-Car Company against Frank L. Washburn fo enforce against, him a liability for costs as indorser of the writ in an action brought against the Pullman’s Palace-Car Company by one Maggie M. Harrison, in which .iudgment had been rendered against ¡he'plaintiff for $813.94 costs. The circuit court gave judgment. See 66 Fed. 790, where the opinion there rendered will be found in full. The defendant brought error.

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

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

<p>Error from the Circuit Court of the United States for the Eastern District of Michigan.</p>

<p>Error from the Circuit Court of the United States for the Eastern District of Michigan.</p>

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

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

<p>Petition tor Mandamus from the Northern District of Ohio.</p>

<p>Petition for Mandamus from the Western District of Michigan.</p>