Volume 77 — Federal Reporter

<p>1. Federal Courts — Jurisdiction—Nonresidents of District — Monopolies.</p> <p>A bill by members ot' a business exchange to enjoin the board of directors from enforcing against them certain by-laws of the association on the ground that the same are illegal, as being in restraint of trade and commerce, cannot be based upon the “Anti-Trust Law” of July 2, 1890 (26 Stat. 209); for the right given by section 4 thereof to bring suits for injunction is limited to suits instituted on behalf of the government. Therefore the authority given by section 3, to bring in nonresidents of the district, cannot be availed of in private suits, and the court can acquire no jurisdiction over them.</p> <p>2. Parties to Actions — Directors of Unincorporated Associations.</p> <p>All the directors of an unincorporated association are necessary parties to a suit against it arising out of coniraetual relations, even though a less number are authorized by the association to transact business.</p> <p>9. Voluntary Associations — Suspension of Members.</p> <p>"Where a member of a voluntary association has been suspended by the directors for nonpayment oí a fine for violation of the by-laws, his action to be restored to the privileges of membership is founded upon the contract between himself and the association, which lie must either accept in its entirety or repudiate. He does not occupy the position of a stranger injured by the acts of co-trespassers.</p>

This was an action by W. 11. Hartshorn against the Atchison, Topeka & Santa Pd Railroad Company and E. H. Bradbury 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.

<p>This was a motion by William W. Everett, complainant, to compel the payment of master’s fees by John W. Haulenbeelc, defendant. The accounting in this case was contested only by the defendant Haulenbeek. The master found in favor of the complainant. At the time of the rendition of the master’s report, there was due him for fees $325, which he apportioned, $175 to complainant, and $150 to defendant. Complainant refused to pay the balance due, on the ground that ihe charges should he paid by the defeated party. Defendant stated no reason for his failure to pay the same, except lack of funds.</p>

<p>This was a bill in equity by the Western Union Telegraph Company against L. C. Korman, auditor of public accounts of the state of Kentucky, seeking to enjoin him from attempting to collect a certain tax assessed against the complainant for ihe state, and from certifying to the county clerks the assessment to be collected in each county.</p> <p>The bill demurred to is as follows:</p> <p>“[Title of Court and Canse.] Bill in Equity.</p> <p>To tbe Judges of tbe Circuit Court of the United States for the District of Kentucky:</p> <p>“The Western Union Company, a corporation duly organized and existing under the laws of the state of New York and a citizen of said state, brings this its hill against L. C. Norman, a citizen and resident of the state of Kentucky, and auditor of public accounts of said commonwealth, and thereupon your orator complains and says:</p> <p>“That your orator is, and for many years last past has been, engaged in tbe business of transmitting intelligence by means of electricity between points.in America and Europe, and between towns and cities and villages in the United States, including the state of Kentucky, and owns and uses in said business telegraph lines extending, ail over tbe United States, including the state of Kentucky, and lines of cable across the Atlantic Ocean, and employs thousands of persons constantly in the conduct of said business. On June 5th, 1867, your orator duly accepted the provisions of the act of congress, passed July 24th, I860, entitled ‘An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes,’ and all of its telegraph lines in the state of Kentucky, which it owns, operates, or controls, are constructed upon post roads of the United States. On November II. 18S)2, the general assembly of the commonwealth of Kentucky enacted a law nowr known and hereafter referred to as ‘Chapter 108,’ being sections 4019 et seq. of the Kentucky Statutes of 1894. Said act provides (articles 1 and 2) for the taxation of your orator, in common with persons and companies generally, upon all of its property, real and personal, of every kind and nature, including its telegraph lines and moneys and credits held or owned by it within the commonwealth of Kentucky, for state, county, municipal, and other purposes, according to the fair cash value of said property. All of said taxes have been duly assessed and paid by your orator, and it makes no complaint thereof. But articles 3 and 4 of said act provide (section 4077) that every telegraph company, and also certain other companies named in said section, ‘shall in addition to the taxes imposed on it hy law pay annually a tax on its franchise to the state and a local tax thereon to the county, incorporated city, town or taxing district where its franchises may be exercised.’ The place or places where such local taxes are to be paid, and how apportioned, are determined by the auditor, treasurer, and secretary of state, who are constituted by the act a board of valuation and assessment for that purpose. In the case of a .telegraph company, such as your orator, whose lines extend beyond the limits of the state, said stale board is directed (section 4081) to fix the value of your orator’s capital stock, and it is thereupon declared, in said section, that that proportion of the value of the capital stock which the length of the lines operated, owned, leased, or controlled in this state bears to the lines owned, leased, or controlled in this state and elsewhere, shall be the value of the corporate franchise of such corporation liable for taxation in this state; and such corporate franchise shall be liable for taxation in each county, incorporated city, town, or district through or into which such lines pass or is operated, in the same proportion that the length of the line in such county, city, town, or district bears to the whole length of the line in the state, less the value of any tangible property assessed or liable to assessment in any such county, city, town, or taxing district. So that under said act your orator is taxed for state, county, municipal, and other purposes, not only upon all of its property within the state, to which it does not object, but is also declared to be taxable upon that proportion of the value of its capital stock which the length of its lines in Kentucky hears to the length of its lines throughout the world, upon the claim or pretense that the company enjoys or exercises some franchise in the state of Kentucky which is subject to taxation by that state. In order to enable said hoard to determine the value of said pretended franchise, your orator was required to, and did, make and deliver to the defendant, between September 15th and October 1st, 1893, a verified statement, in the form prescribed by the auditor, showing, so far as it could, the facts required hy sections 4078 and 4079 concerning its business, shaves, property, income, and linos, including the number and amount of its shares; the highest price at which they had sold at a bona fide sale within twelve months preceding September 15th; the amount and kind of its tangible property in the state, where situated, assessed, or liable to assessment in the state, and the fair cash value thereof, to wit, $191,976.91; the length of the entire lines operated, owned, leased, or controlled in the state, to wit, 8,647 miles, and in each county, incorporated city, 1own, or taxing district; and the entire line operated, controlled, leased, or owned elsewhere, to wit, 189,576 miles. Tour orator accompanied said statement and report with an express notification to the defendant that the report was made and delivered under protest, upon the ground that the statute requiring the same was invalid, because in conlravention of the constitution of tlie United States. Said board thereupon fixed the valuation of your orator’s alleged franchise, in accordance with tlie provisions of said act, at the sum of $1,042,020, and lias notified the company that -such sum would be assessed against it as a franchise tax. The amount of taxes payable to the state upon said assessment is 42% cents on every $100 thereof, and the total tax, including the various local taxes assessable thereon, will amount to about $10,000. All of your orator’s property, including its telegraph lines, moneys, and credits within the state of Kentucky, have been duly returned and assessed for taxation for state, county, municipal, and other purposes by the taxing officers of the various localities through which said telegraph lines pass, or in which said property is situated, at the fair cash value thereof, which does not exceed the sum of $192,970.01, and the taxes thereon have been duly paid. Your orator has, and on the 15th day of September had, no other property in the state of Kentucky subject to the taxing jurisdiction of that state. The principal business done by your orator in the state of Kentucky is interstate commerce, to wit, the transmission of telegraphic messages between points in that state and points in other states, and across said state between points in other states, although a portion, comparatively small, of its business in Kentucky, does consist of transmitting messages from one point to another in that state.</p> <p>“Your orator holds no franchise from the state of Kentucky, being incorporated alone under the laws of the state of New York. Your orator, therefore, insists that said statute of the commonwealth of Kentucky is in contravention of the interstate commerce clause of the constitution of the United States, because it attempts to enforce against your orator the payment of a tax for the privilege of carrying on its business in said state, which is principally interstate commerce, and also as an agency of the United States in the transmission of messages for the government, and that said statute is therefore a tax upon and a regulation of interstate commerce and of said business done for the government of the United States. Said tax is not, and does not purport to be, a tax against your orator in respect of its property in the state of Kentucky, and subject to the taxing jurisdiction of that state, hut is, and is declared to be, a franchise tax, in addition to the tax assessed against it upon all of its property within the state. If, however, the act can he construed as one for the taxation of your orator’s property in the state of Kentucky, your orator insists that the act is, nevertheless,-in contravention of the constitution of the state of Kentucky, and particularly of section 174 and of section 172, which provides that ‘all property wliether owned by natural persons or corporations shall be taxed in proportion to its value, unless exempt by the constitution and that all corporate property shall pay the same rate of taxation as is paid by individual property,’ and is also in contravention of the interstate commerce clause and of the fourteenth amendment of the constitution of the United States, for the reason that it attempts to tax property that is not within the taxing jurisdiction of the state, and to value and assess property within the state, for purposes of taxation, unequally and otherwise than upon the basis of its value as property. Your orator owns personal property in the state of Kentucky, including its telegraph lines, office furniture, appurtenances, and money and credits, of the value of $192,97(5.91. It did own the same on September 19, 1.393, and it then owned no other property in said state; and a-11 of its property has been duly returned and assessed for taxation, and the taxes thereon have been paid. The entire length of the lines of telegraph leased or controlled by your orator in Kentucky on September 15th was 8,647 miles. The entire length of its lines in other states and countries, including the Atlantic cables, was 189,576 miles. Your orator submits that a fair valuation of its property in the state of Kentucky, which consists entirely of said telegraph lines and apirartenances, cannot be ascertained, even approximately, by applying the proportion which such mileage in Kentucky (- miles) bears to its entire mileage throughout the world, upon ,the valuation of all the shares of the company, whether such valuation be a stock exchange value or the actual value of such shares, because such valuation includes elements of value not existing in the state of Kentucky, and not taxable by it, and because your orator’s telegraph lines are not of uniform value per mile. Thousands of miles of its telegraph lines lie in cables under the high seas, which cost from three thousand to four thousand dollars per mile. In the more densely-settled portions of the country, like Massachusetts, New York, Pennsylvania, and New Jersey, where, also, your orator’s trunk lines are very large, the cost per mile of poles is much greater than in the state of Kentucky, where the lines are light, and built through a sparsely-populated region. A considerable mileage of your orator’s lines lies in underground conduits, where the cost per mile greatly exceeds that in Kentucky. In the Par West of the United States the necessity of transporting poles and wires from the Bast adds largely to the cost per .mile of line, and many thousands of miles of line have been built in advance of the railroads, and at a great cost of transportation, by wagons, across the plains and mountains. The federal and foreign franchises, contracts, and patent rights held and enjoyed by your orator, none of which exist in the state of Kentucky, or enter into the value of the property there situated, are of very great value, and your orator has large investments in bonds and stocks of other corporations, principally telephone companies and local telegraph companies^ none of which are situated in Kentucky, or taxable in said state; all of said bonds and stocks being held in your orator’s treasury, in the state of New York. Said bonds and stocks are of the value, in the aggregate, of $7,633.-230.12. Your orator also has large investments in real estate in New York City and Chicago, and other states and towns in the United States and Canada, of the value of more than $5,013,326.64, none of which is situated in the state of Kentucky, or taxable by that state. Any apixxrtionment to Kentucky of the capital stock of the company on the mileage basis will, therefore, necessarily include the value of such shares, bonds, real estate, federal and foreign franchises, contracts, and patent rights, all of which are without the taxing jurisdiction of the state of Kentucky. Your orator’s income is derived, not merely from the use of personal and real estate in the conduct of its business, but it employs in said business the personal services of thousands of persons skilled in the business of telegraphy, and your oiator’s net income, and therefore the market and actual value of its shares, depend in a great measure upon the fidelity and skill with which their duties are performed; and a (ax based upon such market value, or upon the income of your orator, must therefore rest largely upon the services rendered and income derived outside of the state of Kentucky, and not subject to the taxing jurisdiction of said state. Moreover, the market or exchange price of yonr orator’s shares is speculative and variable, depending upon financial and other conditions not at all connected with your orator, its business, or its property, and does not, therefore, afford any proper, reasonable, or just criterion for estimating the value of your orator’s property. Your orator’s gross earnings throughout its entire system, for the year ending September 15th, 1893, were $24,095,(525.83, and its income for the same period was $6,464,583.83. Its gross receipts in Kentucky, including its receipts from interstate business as well as local business, were $351.183.90. Its gross receipts during the same period upon business done wholly within the state of Kentucky were $72,-410.75. Your orator is not able to state the total expense of said business so doue in Kentucky, but it is estimated by your orator at from $250,000 to $300,000. So that the proposed tax upon said alleged franchises would require your orator to pay. in the state of Kentucky, more than 90 pe,r cent. of its net income in the state from all of its business, including interstate commerce, — a rate of taxation which will he substantially destructive of your orator’s business. The amount of business done per mile in many parts of the country greatly exceeds the amount per mile done in Kentucky, and the profit gained by your orator upon its business per mile in Kentucky is much less than its profits upon its business per mile in many other states and countries, and is considerably less than its average profit per mile.</p> <p>“Said act (section 4091) provides as follows: ‘All taxes assessed against any corporation, company or association under this article, except banks and trust companies, shall be due and payable thirty days after notice of same has been given to said corporation, company or association failing to pay its taxes, after receiving thirty days notice shall be deemed delinquent, and a penalty of ten per cent, on the amount of the tax shall attach, and thereafter such tax shall bear interest at the rate of ten per cent, per annum; any such corporation, company or association failing to pay its taxes, penalty and interest, after becoming delinquent, shall lie guilty of a misdemeanor, and on conviction, shall be fined fifty dollars for each day the same remains unpaid, to-he recovered by indictment, or civil action, of which the Franklin circuit court shall have jurisdiction.’ The defendant claims that your orator is delinquent, and that by virtue of the provisions of said act it is liable to the onerous penalties declared by 1lie act, and is threatening to proceed to enforce and collect said tax and said penalties, and, unless restrained by the order of this court,, the defendant will apportion and certify to the county clerks of more than sixty-eight counties of the state the proportionate amount of said assessment, in accordance with said act; and the county clerks will certify to each county, city, town, or taxing district in which your orator does business the portion thereof taxable in each of said cities, towns, or taxing districts in each of said counties for collection; and your orator will suffer irreparable injury, and will be subjected to a multiplicity of vexatious suits and prosecutions, and to an illegal lien upon its property within the state. To the end, therefore, that your orator may not be subjected to the multiplicity of suits which would otherwise be necessary, and that it may be spared irreparable injury, and that its property in the state may not be subjected to an illegal cloud and lien, your orator prays for a writ of subpoena against L. O. Norman to appear and make full and true answer to this bill (but not under oath, answer under oath being hereby waived), and that an injunction pendente lite be granted commanding him to refrain from certifying said valuation or assessment, or any part thereof, to any county clerk of said state, and to refrain from collecting or attempting to collect any of said taxes alleged to be due to the state of Kentucky under said assessment, until the final order and determination of this court, and that upon such final hearing a decree may be made perpetually enjoining said defendant from making said certification, and from collecting any of said taxes or penalties, and for all other proper relief to which your orator may be •entitled.” '</p> <p>The Kentucky law applicable to the questions raised is this:</p> <p>Chapter 108, § 4019: “An annual tax of forty-two and one-half cents upon each one hundred dollars of value of all property directed to be assessed for taxation, as hereinafter provided, shall be paid by the owner, person or corporation assessed.”</p> <p>Section 4020: “All real and personal estate within this state and all personal estate of persons residing in this state, and of all corporations organized under the laws of this state, whether the property be in or out .of this state, including intangible property, which shall be considered and estimated in fixing the value of the corporate franchises as hereinafter provided, shall be subject to taxation unless the same be exempt from taxation by the constitution, and shall be assessed at its fair cash value, estimated at the price it would bring at a fair voluntary sale.”</p> <p>Section 4077: “Every railway company or corporation, and every incorporated bank, trust company, guarantee or security company, gas company, water company, ferry company, bridge company, street railway company, express company, electric light company, electric power company, telegraph company, press dispatch company, telephone company, turnpike company, palace car company, dining car company, sleeping car company, chair car company, and every other like company, corporation or association, also every other corporation, company or association having or exercising any special or exclusive privilege or franchise not allowed by law t.o natural persons, or performing any public service, shall, in addition to the other taxes imposed on it by law, annually pay a tax on its franchise to the state and a local tax thereon to the county, incorporated city, town and taxing district where its franchise may be exercised. The auditor, treasurer and secretary of state are hereby constituted a board of valuation and assessment for fixing the value o'f said franchise * * * the-place or places where such local taxes •are to be paid * * * by corporations on their franchise, and how apportioned where more than one jurisdiction is entitled to a share of such tax, shall be determined by the board of valuation and assessment and for the discharge of such other duties, as may be imposed upon them by this act. The auditor shall be chairman of said board, and shall convene the same from' time to time, as the business of the board may require.”</p> <p>Section 4078: “In order to determine'the value of the franchises mentioned tn the next preceding section, the corporations, companies and associations mentioned in the next preceding section, except banks and trust companies, whose statements shall be filed as hereinafter required by section four thousand and ninety-two of this article, shall, annually between the 15th day of September and the 1st day of October, make and deliver to the auditor of public accounts of this state a statement, verified by its president, cashier, secretary, treasurer, manager, or other chief officer or agent, in such form as the auditor may prescribe, showing the following facts, namely: The name and principal place of business of the corporation, company or association; the kind of business engaged in; the amount of the capital stock, preferred and common; the number of shares of each; the amount of stock paid up; the par and real value thereof; the highest price at which such stock was sold at a liona fide sale within twelve months next before the 15th day of September of the year in which the statement is required to be made; the amount of surplus funds and undivided profits, and the value of all other assets; the total amount of indebtedness as principal; the amount of gross or net earnings or income, including interest on investments, and incomes ,from all other sources for twelve months next preceding the 15th day of ¡September of the year in which the statement is required; the amount and kind of tangible property in the state; and where situated, assessed or liable to assessment in this state, and the fair cash value thereof, estimated at the price it would bring at a fair voluntary sale, and such other facts as the auditor may require.”</p> <p>Section 4079: “Where the line or lines of any such corporation, company or association extend beyond the limits of the state or county the statement shall in addition to the other facts hereinbefore required, show the length of the entire lines operated, owned, leased or controlled in this state, and in each couni y. incorporated city, town or taxing district, and the entire line operated, controlled, leased or owned elsewhere. If the corporation, company or association be organized under the laws of any other state or government, or organized or incorporated in this state, but operating and conducting its business in other states as well as in this slate, the statement shall show the following facts, in addition to the facts hereinbefore required: The gross and net income or earnings received in this slate and out of this slate, on business done in this slate, and the entire gross receipts of the corporation, company or association in this state and elsewhere during the twelve months next before the 15th day of September of the year in which the assessment is required to tie made. In cases where any of the facts above required are impossible to be answered correctly, or will not afford any valuable information in determining: the value of the franchises to be taxed, the said board may excuse the officer from answering such questions; provided that said board from said statement, and from such other evidence as it may have, if swell corporation, company or association, be organized under the laws of this state shall fix the value of the capital stock of Ihe corporation, company or association as provided in the next succeeding section, and from the amount thus fixed shall deduct the assessed value of all tangible property assessed in this state, or in tlte counties where situated. The remainder thus found shall be the value of the corporate franchise subject to taxation as aforesaid.”</p> <p>Section 4080: “If the corporation, company or association bo organized under the laws of any other state or government, except as provided in the next section, the board shall fix the value of the capital stock as hereinbefore provided, and will determine from the amount of the gross receipts of such corporation. company or association in tlxis state and elsewhere, the proportion which the gross receipts in this state, within twelve months next before the 15th day of September of the year in which the assessment was made, bears °to the entire gross receipts of the company, the same proportion of the value of the entire capital stock, less the assessed value of the tangible property assessed or liable to assessment in this state, shall be the correct value of the corporate franchise of such corporation, company or association for taxation in this state.”</p> <p>Section 4081: “If the corporation organized under the laws of this state or of some other state or government be a railroad, telegraph, telephone, express, sleeping, dining, palace or chair car company, the lines of which extend beyond the limits of this state, the said board will fix the value of the capital slock, as hereinbefore provided, and that proportion of the value of the capital stock, which the length of the lines operated, owned, leased or controlled in this state bears to the total length of the lines owned, leased or controlled in this slate and elsewhere shall be considered in fixing the value of the corporate franchise of such corporation liable for taxation in this state; and such corporate franchise shall be liable to taxation in each county, incorporated city, town or district through or into which such lines pass or are operated in the same proportion that the length of the line in such county, city, town, or district bears to the whole length of the lines in the state, less the value of any tangible property assessed or liable to assessment in such county, city, town or taxing district.”</p> <p>Section 171 of tite constitution provides that' luxes sliall he levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws.”</p> <p>Section 174: “All property whether owned by natural persons or corporations shall be taxed in proportion to its value unless exempted by this constitution, and all corporate property shall pay the same rate of taxation paid by individual property. Nothing in this constitution shall be construed to prevent the general assembly from providing tor taxation based upon incomes, licenses or franchises.”</p> <p>Section 181: “The general assembly may, by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations and professions, or a special or excise tax; and may, by general laws, delegate the power to counties, towns, cities, and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and.professions.”</p>

This was a suit in equity by the Fox Solid Pressed Bteel Company against Charles T. Hchoen and the Hchoen Manufacturing Company, arising out of a contract between the parties.

This was a bill filed in the district court of St. Louis county, Minn., by Theodore M. Krumseig and Louise Krumseig, the appellees, against the Missouri, Kansas & Texas Trust Company, a corporation organized under the laws of Missouri, the appellant, to cancel a mortgage executed by the appellees to the appellant on real estate in the city of Duluth, upon the ground that the same was void for usury, and upon the further ground that it was a contract for life insurance, and…

<p>1. Federal Courts — Enjoining Litigation in State Courts — Violation or 'Injunction — Contempt.</p> <p>In 1889, the C. National Bank being found insolvent, a receiver of its property was appointed by the comptroller of the currency. Such receiver submitted himself and the affairs of ihe bank to the jurisdiction of tho United States circuit court. A suit was afterwards begun in a slate court by one C., a stockholder, for the benefit of the corporation, against three of the directors of the hank, to recover damages for losses caused through their negligence. In this action O. recovered a judgment, which, as against two of the defendants, he settled, upon their payment into court of a sum of money, and from which the other defendant, one T., appealed and secured a reversal. After the receiver of the bank bad paid the creditors, one S. was chosen by the stockholders, pursuant to the statute, as agent to wind up the bank’s affairs. S. applied to the state court for an order directing the fund in its custody to be paid over to him. The court refused the order, but on appeal this decision was-reverses, and the fund, less proper allowances to C. for attorney’s fees, etc., was directed to be turned over to S. S. commenced a suit in the United States circuit court to establish his rights to the position of agent, and as such to have possession of all assets of the bank, and to enjoin any further litigation about the same; and in this suit the court granted a temporary injunction restraining O., his attorneys, etc., from commencing any further litigation, from attempting to take control of any of the assets of the bank, and from attempting to settle or allow any attorney’s or other fees growing out of the past litigation. S. subsequently obtained orders to show cause why O. and his attorneys should not be punished for contempt in violating this injunction — First, by applying to the state court to make an allowance of attorney’s fees out of the funds in its custody; and, second, for applying for writs of error to review the judgment in favor of T., the director who had not settled in C.’s' suit, and the order directing the fund in the state court to be paid over to said S. as agent, in both which writs the bank was made plaintiff in error, and the second of which was sued out against S. as defendant in error. Held, that C. was technically guilty of contempt, in violating the injunction by applying to the state court for an allowance of fees, by using the name of the bank on the first writ of error, and by prosecuting the second writ of error while enjoined from attempting to take control of any assets of the bank; but having abandoned the first proceeding on being advised that it was a violation of the injunction, and his counsel having been of opinion that the writs of error were not prohibited by it, he should be fined only the costs of the proceedings.</p> <p>3. Same.</p> <p>Held, further, that the injunction prohibiting C. from instituting proceédings to obtain control of the assets of the bank did not contravene the provisions of section 3 of the act of August 13,1888, since the United' States circuit court had taken jurisdiction in S.’s suit of the disposition of the assets of the bank, and any proceedings against S. were within its general equity jurisdiction.</p> <p>3. Violation of Injunction — Parties.</p> <p>. Seld, further, that as to certain parties, who disclaimed any knowledge of or participation in the acts of O. and his attorneys, the proceedings should be dismissed.</p> <p>4. Same — Fines.</p> <p>Seld, further, that as C.’s attorney denied by affidavit any knowledge of the existence of the injunction at the time he applied for the allowance and sued out the first writ of error, he must be considered as purged of contempt in those matters, but, as to the second writ of error, he was guilty of contempt, though, as he alleged that he did not understand the injunction to prohibit suing out the writ, he should be fined only the amount of the costs.</p>

<p>1. Evidence — Verbal Contract Void under Statute of Frauds — Injunction Suit.</p> <p>A yerbal contract, though void under the statute of frauds, may still be proved, in resistance to a suit for an injunction, for the purpose of showing that it would he inequitable to grant it.</p> <p>2. Statute of Frauds — Verbal Contract — Part Performance.</p> <p>The D. R. R. Co., being about to extend its road across the tracks of the C. R. R. Co., the latter obtained an injunction to restrain it from doing so. Thereupon, a verbal agreement was made between the two roads, by which each was to be permitted to cross the tracks of the other at certain points. The C. Co. then dismissed its injunction, and permitted the D. Co. to cross its tracks. Afterwards the, C. Co. expended «large sums in procuring right of way and grading track to a crossing over the D. Co.’s line, hut the latter applied to enjoin it from making the crossing. Held, that the verbal contract, if within the statute of frauds, had been taken out of it by the C. Co.’s part performance.</p>

<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 Forbes Holton, as a stockholder of the Newcastle Northern Railway Company, “on behalf of himself and other stockholders of said company,” against O. $. Wallace and several other individuals, to enforce alleged rights of the corporation. The circuit court dismissed the bill, with costs (66 Fed. 409), and the complainant has appealed.</p>

This was an action by R. P. Page and wife, Pattie, against W. B. Dickens and wife and others, to foreclose a deed of trust conveying Dickens’ home lot, and appoint a trustee.

This was a suit by the New York Security & Trust Company and others against the Equitable Mortgage Company. The cause was heard on exceptions to the report of a special master. The special master was appointed to take such proof as might be offered by any of the parties to the cause, or by any creditors or stockholders of the Equitable Mortgage Company, concerning its indebtedness, and specially to take proof of the claim of the First National Bank of Candor.

<p>t. Public Lands — Railroad Grants — Act of Forfeiture.</p> <p>The forfeiture of unearned railroad grants declared by the act of September 29, 1890 (26 St at. 490), was for the benefit of the United States only, and did not operate in favor of any company claiming such forfeited lands under an overlapping location.</p> <p>2. Same — Mac of General Route.</p> <p>The map filed March 6, 1805, with the secretary of the interior by the president of the Northern Pacific Railroad Company (known as the “Per-ham Map”), purporting to designate the general route of the road, but which was rejected by the commissioner of the general land office as being indefinite and not properly authenticated, did not operate as a withdrawal or segregation of any public lands along the route. 69 Fed. 899, reversed.</p> <p>8. Same — Overlapping Grant.</p> <p>The act of July 2, 1861, granting lands to aid in the construction of the Northern Pacific Railroad, did not of Itself operate as a withdrawal or appropriation of public lands within the prescribed limits of the route; and by reason of the failure of the company to file a sufficient map of general location opposite lands subsequently traversed by the Oregon & California Railroad prior to the grant made to the latter company (Act July 25, 186(5), or prior to the definite location of its route (October 29, I860), the grant to the Northern Pacific Company never took effect as to such lands, and the title thereof passed to the Oregon & California Company. 69 Fed. 899, reversed. McKenna, Circuit Judge, dissenting.</p> <p>4. Same.</p> <p>At tba date of the grant of the Oregon & California Company, the right of locating its road so as to take the lands in question existed unimpaired in tlie Northern Pacific Company, and continued to exist until the act of forfeiture, in consequence of which the lands did not pass to the Oregon & California Company, but were restored by the act of forfeiture to the United States. Per McKenna, Circuit Judge, dissenting.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>In the year 1888 the Sioux City & Northern Railroad Company built a line of road from Sioux City, Iowa, to Garretson, S. D., a distance of about 100 miles, and on the 1st day of January, 1890. executed a trust deed to the Manhattan Trust Company, complainant in this cause, to secure an issue of first mortgage bonds, which was acknowledged by the grantor on the 22d day of January, 1890, and by the grantee on the 27th day of January, 1890, and was recorded on the 31st day of January, 1890. The railroad terminal facilities at Sioux City were owned by a separate corporation, organized in 1889, known as the Sioux City Terminal Railroad & Warehouse Company, and this corporation issued its first mortgage bonds as of the same date with the railroad bonds, January 1, 1890, and to secure the same executed its trust deed to the Trust Company of North America, the intervener in this case, on the 1st day of January, 1890, and the same was recorded' on the 18th day of January, 1890. The arrangement between the railroad company and the .terminal company for the use of the terminals was perfected, and consists of a lease for 100 years, which was executed on the 14th day of December, 1889, and acknowledged on the 21st day of January, 1890, and possession taken üiereunder shortly before the 1st of January, 1890. The lease and mortgage were executed at the same time, and with reference to each other. Under this kase the railroad company agreed to pay the terminal company $90,000 a year rent. The lease provided that out of the $90,000 the sum of $75,000 should be payable direct to 1lie Trust Company of North America, to pay the interest on the bonds issued by the terminal company. The mortgage from the terminal company to the Trust Company of North America provided tiiat this $75,000 rental should be applied in the payment of the interest on the bonds and that the Tnist Company of North America should have all the powers and rights for the enforcement of the lease to the extent of the amount of the rental it was entitled to receive, which the terminal company had for the enforcement of the payment, of the rent; and provided further that upon default in the payment of rent or in the payment of interest the Trust Company of North America should have all the power which the terminal company had for the enforcement, of the provisions of the lease, and should be entitled to all the rents, incomes, and profits of the property. Under the provisions of the lease the rent was payable quarterly, and was paid regularly until September, 1893. when default was math!; and, as ¡ho raihoad company was also in default, the Manhattan Trust Company, .ts trustee in the mortgage to secure the railroad bonds, on the 28th day of September, 1893, filed its bill of complaint asking for the appointment of a receiver for the lailroad, but not asking for a foreclosure. Afterwards it filed an amended complaint asking for the foreclosure of its mortgage on the railroad, and thereupon the Tmsi Company of North America filed an amendment to its petition of intervention previously filed, asking for the Unit, time that its mortgage be declared a prior lien upon a portion of the rolling stock of tlio railroad company, on the mound that under the statute of Jowa the terminal company had acquired a landkfld's lien thereon for rentals under the lease, which lien, it was claimed, was prior in point of time and right to the railroad mortgage. On December 23, 1893, the board of directors of the terminal company, by resolution duly adopted, exercised the right of re-entry reserved in the lease by reason of the. default in the payment, of rent continued for a period of more than 30 days, and ('looted to declare and did declare the lease and all rights thereunder forfeited, and made immediate demand upon the Sioux City & Northern Railroad Company and its receivers for the surrender of the demised premises to the lessor. To (he amended petition of intervention the jUanbalian Trust Company, complainant, made its answer, denying that a landlord's lien attached to the rolling stock of the lessee under ihe statute, and setting up the nonpayment of the rent under the lease, and the action of the terminal company, through its board of directors, declaring the lease forfeited; and pleaded the statute of limitations of Iowa, which provides that all actions for the establishment of a landlord’s lien shall be brought within six months after the expiration of the lease; and averred that the lease had expired more than six months before the tiling of the amended petition of intervendon. The circuit court held that the terminal company, as the ordinal lessor, had the legal right to forfeit the lease for the nonpayment of rent without consulting the Trust Company of North America, mortgagee; and that, having elected to lorfeit the lease, the statute of limitations immediately commenced to run, and, :¡s more than six months had elapsed before the filing of the. amended petition of intervention,-the cause of action was barred. The question whether rolling stock, used upon the line of a railroad can be said to be so used within the limits of a terminal' depot as to fasten and continue a landlord’s lien thereon under the landlord’s lien law of Iowa was not decided. Manhattan Trust Co. v. i-fioux City & Northern It. Co., (J8 Fed. 72. From the decree dismissing the petition of intervention the Trust Company of North America appealed to this court. In this court the appellant expressly waives any claim to a lien on the rolling stock which was acquired by the railroad company after the complainant’s mortgage took effect.</p>

The American National Bank of Denver, the plaintiff in error, was a creditor of A. Gauthier, a wall-paper and paint merchant doing business in Denver, in a sum exceeding §14,000. To secure payment of this sum, the hank attached the entire stock of its debtor, which was afterwards sold under the attachment by the sheriff, and purchased by tbe bank, or by one of the bank’s agents or officers in trust for the bank.

This action was commenced by Eliza H. Russell, the defendant in error, against the New York Ufe Insurance Company, tlie plaintiff in error, in the district court of Holt county, Neb., and was removed from that court into the circuit court. of the United Stales for the district of Nebraska, on the petition of the plaintiff’ in error.

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>This was an action of ejectment, brought by Oliver P. Crawford, a citizen and resident of tiie state of Xevada, against tbe Forest Oil Company, a corporation created by the state of Pennsylvania, to recover an undivided one-tliirteentli interest in a tract of land containing 105 acres and 83| perches, and situate in ML Pleasant township, Washington county, Pa. By stipulation a jury was waived, and the case was tried to the court, which, after making findings of fact, and announcing its conclusions of law thereon, gave judgment for plaintiff. 77 Fed. 531. The defendant has appealed.</p> <p>The findings of fact were as follows:</p> <p>(I) The parties to this suit, their residence, and the subject-matter of the action are as stated above. The interest sought to be thereby recovered exceeds $2,000 in value. The defendant corporation was in possession of the land for oil and gas purposes will'll suit was brought. (2) William Crawford, the grandfather of the plaintiff, was the owner in fee of the land involved in tills suit, and, being seised thereof, made his will, dated February 27, 1843, and died in 1846. His will was duly admitted to probate by the register of Washington county, Pa., and a copy thereof, marked “Exhibit A,” is attached hereto, and made part of these findings. By said will he devised the premises in dispute as follows: “I will and devise to my son Matthew and to his children my old farm, adjoining Mark Ifelso’s and others’, provided, however, at the end of one year after my decease, or when called upon for it, he shall pay to his mother the sum of three hundred dollars in addition to the sum as above bequeathed to her; and he shall pay, also, to my son Oliver’s child, when it shall become of age, the sum of two hundred dollars; but, if the said child shall die before it shall become of age, I will that he be altogether exonerated from the payment of the said two hundred dollars.” (3) That said Matthew Crawford, the devisee named, had, at the time his father executed said will, seven living children, of whom the plaintiff was one. After the making of said will, and before tbe death of William Crawford, the testator, Another child was horn to said Matthew, and after the death of the testator five other children were born to Matthew. Matthew Crawford died September 80, 1894, leaving to survive him twelve of said children, and the children of his sou James Crawford, who died about 1890. (4) Matthew Crawford, on December 4, 1890, in consideration of $000 in cash, a royalty of one-cightli the oil, and $610 for each gas well utilized, executed to T. J. Vandergrift a lease, for oil and gay purposes, of land which included the premises in dispute. A copy of said lease, marked “Exhibit B,” is hereto attached, and made part of these findings. This lease was duly assigned by T. J. Vandergrift to the AVoodiand Oil Company, which company, on March 20, 1S92, entered upon said premises, drilled several wells, and obtained oil in paying quantities. On November 27, 1894, the AVood,land Oil Company sold and transferred the lease and wells to the Forest Oil Company, the defendant, which company has since claimed and held exclusive possession of the land occupied in operating the wells under the lease. During the lifetime of Matthew Crawford the royalty arising under the lease was paid to him.</p> <p>The will of William Crawford, attached as an exhibit to the second finding of fact, was in full as follows:</p> <p>I, William Crawford, of Mount Pleasant township, in Washington county and state of Pennsylvania, do make this, my last will and testament, as follows, viz.: I will and bequeath to my wife, Nancy, the sum of three thousand dollars in cash, to be paid her at the expiration of one year after my decease, and I will to her the whole of my household goods and furniture, and her choice of the cows. I allow to her also the use of the dwelling house in which we now live, together with the. use of the garden and of half the orchard during her life. It is my will, also, that she be found in a quiet horse at all times when she wants to ride, and that she be. alwáys kept in a good cow, and that the cow be always kept and taken care of for her, and also that she be always kept in plenty of wood ready cut, and in as much coal as she can make use of, and, if necessary, that her fires be put on for her. And I will, also, that she be furnished annually with 15 lbs. of hackled flax, 15 lbs. of wool, "3 cwt. of pork, 50 lbs. of sugar, 30 lbs. of coffee, 8 lbs. of tea, 10 cwt. of flour, one barrel salt,-30 bushels of corn meal, and 15 bushel of potatoes; the potatoes to be holed and taken care of for her. I also will and direct that the garden be paled in, with a gate to it, and be worked for her, in the best manner, and it is my will that the above items and articles allowed and bequeathed to her be provided and furnished at the equal and joint expense of James, Thomas, and Robert. And 1 will and bequeath to my sons George and William, in addition to what they have already received, the' whole amount of a note in my possession against George, two hundred dollars of which, with the interest thereon, I hereby direct and allow to be paid over by him to William. And I will and devise to my son Matthew and to his children my old farm, adjoining Mark Kelso and others, provided, however, at the end of one year after my decease, or when called upon for it, he shall pay to his mother the sum of .three hundred dollars, in addition to the sum as above bequeathed her; and he shall pay, also, to my son Oliver’s child, when it shall become of age, the sum of two hundred dollars; but if the said child shall die before it shall become of age, I will that he be altogether exonerated from the payment of the said two hundred dollars. And I will and bequeath to my daughter Margaret the sum of one thousaid dollars, — one hundred thereof to be paid to her son William when of age, the balance to be loaned by my executors, and, as soon as they shall deem it expedient, the principal and interest to be.expended in the purchase of real property for her use during .her life, to be equally divided amongst all her children at her decease. And I will and demise to each of my sons James, Thomas, and Robert one of the three plantations belonging to me, adjoining each other, upon their paying to my executors, for the use of the estate, within one year after my decease, as follows, viz.: To my son James and to his children I give the plantation on which I now live, upon his paying the sum of two thousand dollars; to Thomas and to his children X give, the lot of land formerly •occupied by Thomas King, upon his paying the sum of.one thousand dollars; and to Robert and to his children X give the lot of land late the estate of John Cowden, • deceased, upon his paying the sum of one thousand dollars. And I will that the .line between the McDowell and Cowden farms, belonging to me, remain the same -as the last existing line between them, until, beginning at land of James HogseeS. .and running northwards, it reaches a stone nigh a sugar tree not far from the .road; from which stone northward, towards McCarty’s line, I will that the line be run in such a direction as will throw two acres of woodland of the McDowell tract into the Cowden farm. And I will that, in case any one of my sons James, •Thomas, or Robert shall die without issue, the land belonging to the deceased shall fall into the hands of the other two surviving and their children,. upon their ■paying to each one of the rest of my children the sum of three hundred dollars. And I will to my son Matthew my box coat, to James my saddle bags and best straight coat and boots, to Thomas my best jacket and pantaloons, and to Robert my saddle. And I will that all the balance of my stock and other personal property, books excepted, including all the grain both in and out of the ground, be ’sold by my executors at public vendue, and, after all debts and bequests are ■fully discharged, the overplus, if any, shall be paid over to my wife, Nancy. And T will .that my books be equally divided amongst all my children. And, further, it is my will, and I do hereby direct, if any one of my heirs shall enter suit at law respecting this my last will or testament, or he at. all engaged therein, in order to obtain more or anything different from what is herein demised, that he, she, or they, as the ease may he, shall he forever and totally disinherited. And 1 do hereby nominate and appoint my son Matthew Crawford and John Heed the executors of this, my last will and testament.</p> <p>In witness whereof, I do hereunto set my hand and seal the twenty-seventh day of February in the year of our Lord one thousand eight hundred and forty-three.</p> <p>William Crawford. [Seal.]</p> <p>Witness present:</p> <p>John Coekins.</p> <p>John Reed.</p> <p>Tlie court below (Buffington, District Judge) filed the following opinion and conclusions of law:</p> <p>The controversy in this case turns on the proper construction of the clause oí the will recited above. The plaintiff contends that by it his father, Matthew Crawford, took a life estate in the farm; that a remainder vested in the plaintiff and his brothers and sisters then living, and that this remainder opened to let in after-born children; that his father, having hut a life estate,, had no authority to grant a lease which would hind those in remainder; and ihat the exclusive right of possession is in the plaintiff and the other children of Matthew Crawford, and has been since his death. The defendants contend that Matthew Crawford took an estate in fee simple under the will, or such an estate as justified him in giving the lease he did. and the defendant is now holding the property under it. What estate did Matthew take under the clause in question? The devise is “to my son Matthew and to his children.” He had six children living when the will was drawn, and seven when the testator died. Therefore the. term thus used, “his children,” as aptly described persons in whom the devise could'vest its though they were mentioned by the testator nominative. Had the devise been to my son Matthew and to his children, Martha, Nancy, Eliza, James, William, Olivet, and Mary, beyond doubt the words “his children” would he held words of purchase, and these persons would have taken a vested estate in remainder, not mediately and by virtue of their relationship to their father as his children, but directly as devisees of the testator. Do they take otherwise, when they are simply specified as “his children,” without name? In law the word “children” ha,< and has had, a well-defined meaning, which is found to run through the textbooks and reports, and upon the proper adherence to which meaning the stability and very existence of many titles in this commonwealth depend. Defining -it from a positive standpoint, it is a word of personal description, it points to individual acquisition, and, so far as designation goes, it differs in no way from a mention of individuals by name. Defining it negatively, it is not a word of limitation; it does not point to heredilable succession; it is employed in contradistinction to the terms “issue” and “heirs of the body.” These are used in creation of estates tail, and point to a contingent hereditable succession, while the term “children” is one of personal description and individual acquisition. Such definitions of the word are recognized in a long line of cases, and the term itself has grown lo he a technical one, so to speak, in the law of the commonwealth. See Guthrie’s Appeal, 37 Pa. St. 14; Affolter v. May, 115 Pa. St. 58. 8 Atl. 20; Huber’s Appeal, 80 Pa. St. 348; Oyster v. Oyster, 100 Pa. St. 538. The natural import of the term is that of one who takes by purchase, and primarily it must-lie so regarded. Applying these principles of interpretation and construction to the will of William Crawford, we are justified in assuming, primarily and presumptively, that the clause in question vested an estate in remainder in the children of Matthew Crawford, and that they took as purchasers. The defendant denies to the word its ordinary meaning, and contends it was not so used by the testator. In so doing he must assume the burden of showing cogent and convincing reason to justify this departure from the ordinary and presumptively correct meaning of the word. Hayes, Estates Tail, p. 35. Or, as Guthrie’s Appeal, supra, says: “Admitiing. now, that the word ‘children’ may he construed to mean ‘heirs of the body,’ yet there must he an express warrant for this change of its legitimate meaning.' under the hand of the author of the gift. The intention to use it as a'word <if limitation, contrary, to ils natural import, must be rendered clear by the words of the grantor or testator himself.” The word “children” has acquired a technical moaning in devises, and. unless, from other inconsistent words, it is clear some different definite sense was given it by the testator, this technical meaning should he-adhered to. Carroll v. Burns, 108 Pa. St. 886. That this recognized meaning has been departed from in adjudged cases is certain, but in such cases there were substantial reasons for so doing. “There are many instances in our state,” sa3rs the court, in Oyster y. Oyster, supra, “when ‘children’ has heen held to be a word of limitation; but in all of them such construction was clearly in accord with the intent of the testator, as gathered from the four corners of the will, as when ‘children’ has heen used with ‘heirs of the body ’ or ‘issue’ as its synonyms.”</p> <p>Approaching the inquiry before us in the light of these firmly-rooted canons of construction, we ask what reason has the testator given in his will for a departure from the meaning which the law 1ms firmly fastened on the words he used? The devising- clause is in itself complete, independent, and self-explanatory. It is net necessarily connected with or dependent upon other portions of the will, either for interpretation, certainty, or devising efficacy. The devise thus having an inherent completeness, a construction which would ingraft upon it meanings and changes based on other and wholly disconnected clauses and subjects is strained and unnatural. But a reference to other parts of the will shows no such use of words or terms'as compel the substitution of the word “heirs,” or “issue,” for “children,” in the clause in question. Clearly, the word “heir,-” in the concluding part of the will, was used in the broad sense of embracing all beneficiaries; and, as this included his widow and the children of his daughter Margaret, as well as- testator’s own children, the term “heirs” was not there used as synonymous with children. So, also, the word “issue,” in the devise to .Tames, Robert, and Thomas, was not used interchangeably and as synonymous with “children,” but was broad enough to cover lineal descendants other than children as well. It is suggested, however, that the fact that Matthew’s devise was coupled with the condition to pay certain legacies would vest in him a fee. We cannot assent to this. Such a contention fails to appreciate the reason and spirit of the rule which resorts to legacies to determine the quantum of the estate devised. The fact of legacies accompanying a devise is only pertinent when the estate devised is undefined, and therefore uncertain. 2 Tarm. Wilis, No. 209; Hinkle’s Appeal. 110 Pa. St. 498, 9 Atl. 938; Dixon v. Ramage, 2 Watts & S. 144; Burkhart v. Bucher, 2 Bin. 464. Here, however, there is no need to resort to legacies to determine the quantum of estate. By the use of the term “children,” the testator vested an estate in remainder in a specified class of persons, and a precedent life estate in Matthew, their father. There is no uncertainty in either respect. If he added the payment of legacies on the estate devised to the first taker, it was simply a burden on such first-taker, — not an extinction of the estate of those in remainder.</p> <p>In conclusion, then, we are of opinion Matthew Crawford took a life estate in thp land in question, and that his children living at the testator’s death took an estate in remainder, which, under the authority of Hague v. Hague, 161 Pa. St. 646. 29 Atl. 261, and Gernet v. Lynn, 31 Pa. St. 94, opened to let in after-born children. In- accordance with these views, we reach our conclusions of law:</p> <p>CD The court is of the opinion that, under the will of William Crawford, his son Matthew took an estate for life in the land in question.</p> <p>(2) That, bv the will of William Crawford, the plaintiff, Oliver P. Crawford, ore of the children of Matthew, took an estate in remainder in the undivided one-thirteenth of the land.</p> <p>(3) That said Oliver P. Crawford has shown title and right of possession to the undivided one-thirteenth part of the land in question,.and is entitled to recover in this action.</p> <p>In accordance, therefore, with our findings of law and fact, the court finds in favor of the plaintiff, and against the defendant, for the undivided one-thirteenth of the premises described in the writ, together with six and a quarter cents damages, and.costs of suit, and judgment will be entered accordingly.</p>

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

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

The Montieello Bank, the plaintiff in error, sued Challes B. Bosiwick and Moses C. Nixon, the defendants in error, who were partners in business under ihe linn name of Bosiwick it Nixon, charging, in substance, that said firm had sold to Ihe aforesaid bank a certain note for the sum of 83,690, dated June 13, 1892, and payable lo W. W. Bilger or order, which purported to be signed by Caleb Hmith, ir1. M. Bilger, J. IÍ.

<p>1. Trtat, — Praters for Instructions.</p> <p>It is proper and judicious practice for the court to read to the jury only such prayers as are affirmed, and to tell them that such as are refused will be so marked, and that such as are neither specifically affirmed nor refused are suffieiently covered by the general charge: and there is no error in declining to specifically affirm or refuse the points actually covered by the general charge.</p> <p>%, Railroad Companies — Accident at Crossing — Colusión with Tkollet Car.</p> <p>In an action by a passenger on a trolley car, who was injured by collision thereof with a railroad car, against the railroad company, where the complaint is founded upon alleged negligence of defendant's servants, it is proper to refuse requested instructions absolving the railroad company from responsibility, if it appeared that the irolley-car company had failed to comply with the provisions of a eontiacl between it and the railroad company whereby It agreed to stop each car, and send forward the conductor, before crossing the railroad tracks.</p>

This suit was brought by Edward A. Smith, now deceased, against the Farmers’ & Merchants’ National Bank of Fremont, Neb., the plaintiff in error, on March 25, 1893, in the circuit court of the United States for the district of Nebraska. The plaintiff died on November 26, 1895, and thereupon the suit was revived in the name of Herbert I-C. Smith, his executor, who_ is the present defendant in error.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This was an action brought in tlie United States circuit court for the district of Colorado by the American Ice-Machine Company, the defendant in error, against the Philip Schneider Brewing Company, tlie plaintiff in error, to recover the balance of die purchase price of an ice-making machine, and the value of certain gooiI*:, vares, and merchandise. The complaint divides the plaintiff’s claim into three canses of action, which are separately stated. The fust is founded on a contract for an ice machine purchased by the plaintiff in eiror from the defendant in error at the agreed price of $11.580, upon which it is averred payments have been made amounting to $7,723.57, leaving due the sum of $3,850.43. The complaint contained the usual averment that the plaintiff “has fully complied with and performed all and singular tlie terms and conditions” of the contract upon its part. Tlie secoid is founded on an account for apparatus known as “teinperators,” sold and delivered by the plaintiff to the defendant at the agreed price of $1,200, and for a filler, sold and delivered at the agreed price of $250; and upon this account it is averred $1,31)3 was paid, leaving due thereon $57. ’File third is founded on an action for sundry items of goods, wares, and merchandise sold and delmired by the plainfiff to the defendant at the agreed price, and for the reasonable price and value of $l,(>3l).lt).</p> <p>'Jlie following is a copy of the conduct for the ice machine:</p> <p>“This agreement, made this 27th day of April, 18!)3, by and between the American Ice-Machine Company, a corporation existing under and nursuant to the laws of the state of Missouri, having its geueial office in the city of St. Louis, slate of Missouri, party of the first part, and Philip Schneider Brewing Co., brewers, a corporation duly orgr nized and created under the laws of the state of Colorado and doing In ,finesa in the city of Trinidad, county of Las Animas, state of Colorado, party of the second pari, witnesseth: That the parly of ¡.he first part and the party of the second part, for and in consideration of one dollar, by each to the other paid, the receipt whereof is hereby acknowledged, and for other valuable considera lions, which are hereinafter specified, do hereby promise, covenant, and agree each with the oilier, and do hereby bind themselves, their successors, legal representatives, heiis, executors, administrators, and assigns, to faithfully perform, fulfill, and cany out all of the several, provisions, conditions, and requirements specified in this agreement, to wit: That the said party of the first pari hereby agrees to construct for and deliver to the said party of the second part, on its brewery premises situated in the city of Trinidad, Colorado, an ice-making apparatus, as hereinafter specified. Tlie power part of said apparatus shall consist of one vertical siearn engine having a cylinder fifteen (15) inches in diameter and twenty (20) inches stroke, supplied with slide valve and valve motion complete, governor, throttle valve, lagging, and insulation. The compression part shall consist of one vertical double-acting ammonia compressor ten (10) inches in diameter and twenty (20) inches stroke, complete, with upper and bottom heads, oil stuffing box, steel suction and discharge valves, piston with steel rod, water jacket, stop valves, etc. Said engine and compressor shall be mounted upon a substantial bedplate and vertical supporting frames, and connected together by a shaft supplied with disk cranks; said shaft to carry in its center a fly wheel of ample size and weight to insure the steady operation of the machine, and the whole to be furnished with a substantial gallery, stairs, and hand railing. That the party of the first part will supply and erect a battery of two open-air ammonia condensers of the proper size for the liquefaction of the gas expelled by the compressors, with headers, valves, and connections arranged so that either can be used separately. Two vertical open-air ammonia condensers, made of two-ineh special pipe, each twenty-four pipes high and twenty (20) feet long, supported by cast iron brackets, braced with wrought iron tie rods, and supplied with galvanized gutters for distributing the condensed water, each condenser to be supplied with a two (2) inch discharge valve and %-ineh liquid valve, and connected to manifolds on top and bottom. The condensers to be erected on your present cement condenser floor. Water connections to be run from the present pipe on condenser floor to the gutters on top of new condensers, and supplied with the requisite valves and fittings. Hot gas connection to be run from the present discharge pipe or high-pressure drip to the new condensers, and liquid connection to be made with present liquid receiver or pipe running thereto. Suction and discharge connections of the proper size to be made between the new machine and existing suction and discharge pipes, making the ammonia system complete. One steel freezing tank, measuring inside about thirty-seven (37) feet long, seventeen feet four inches (17' 4") wide, and forty-six (46) inches high, made of 3-16" steel, having central and end partitions to facilitate the circulation of the brine, and well braced with angle irons and tie rods, to prevent bulging when filled with brine. The tank to be provided with top framework for supporting the covers, to be insulated on all sides and -ends with not less than eight inches in thickness of mineral wool, held in place by substantial wood framework. and all exposed sides or ends to be neatly aqd substantially lagged with matched and dressed lumber. Two hundred and forty-six (246) well-insulated covers to be furnished for the top of tank, made of two thicknesses of spruce with paper between, and provided with galvanized staples for lifting. One brass rotary agitator to be mounted in the freezing tank, for circulating the brine, and one vertical steam engine to be furnished and erected for driving the same, including all shafting, hangers, pulleys, and belting required for connecting the engine with the agitator. Fourteen (14) ammonia evaporating coils, made of two (2) inch special pipe, each coil to be about thirty-five (35) feet long, and together containing not less than two thousand (2,600) lineal feet of pipe, to be erected in the freezing tank. 'Hie coils to be supported by wrought iron stands and braces, and each coil to be supplied with a one (1) inch suction valve, and a one-half inch expansion valve, making each coil independent of the others. The coils to be connected on top witii a 2%-inch suction manifold, and on bottom with a 1%-ineh liquid manifold, each of extra heavy wrought iron. Suction connection to be ran from freezing tank manifold to machines or to present main Auction pipe, and liquid connection from liquid receiver to liquid manifold on freezing tank. All connections to be arranged so that either or both machines can be used for the operation of the ice plant and cellar work. One complete apparatus for the distillation and filtration of 12 tons of water per twenty-four hours for the ice cans, consisting of open air steam condenser and heavy iron pan for same and two filters. All parts except condenser 3 ran and- water cooler pan to be galvanized, and all to be arranged so that they can be readily cleaned without disconnection. The steam condenser to be connected with the main exhaust pipe from machines, and all connections to be made between the different parts of the distilling and filtering system. Water connections to be run from a convenient point in the present mains to the -water gutters of steam condenser and water cooler. One automatic foot valve for filling the cans, including all hose and pipe connection. One combined chain hoist and traveling crane for lifting and handling the ice and cans. One hot-water tank for thawing the ice from the cans, and one of our improved dumpers for emptying the cans. Two hundred and forty (240) galvanized ice cans, made of No. 18 iron, measuring 8"xl6"x42", well riveted and soldered water-tight, and provided with wrought iron band around top, to make blocks of ice weighing one hundred and fifty (150) pounds. All piping and tank work to be coated with the best quality of mineral waterproof paint, and the machine to be painted in an artistic manner, in keeping with this class of machinery. Mata’ial and workmanship throughout to be first-class and warranted, and the machine and plant, in all of their parts, to be constructed in accordance with the latest and best practice. We will guaranty that the machine, when properly operated, and at normal speed, shall have power and capacity to develop a refrigerating duty equivalent to that produced by the melting- of twenty (20) tons of ice. per day of twenty-four hours, or for the production of twelve (12) tons of good, marketable ice per day of twenty-four hours. The said parly of the first part further guaranties that the distilling and filtering apparatus, the freezing- tank, and the evaporating coils shall have a capacity for (he production of twelve tons of good, marketable ice per day of 24 hours. That the party of the first part will provide a good and competent engineer to remain with the machine awl plant for a period of Thirty days to give them a thorough test, and to instruct the engineer of the party of the second part in the handling- and management of the same. That the party of the first part will erect the plant hereinbefore specified on the premises of the said party of the second )lart, ready to charge with ammonia, for the sum of eleven thousand, five hundred and eighty (SI 1,580) dollars, the said party of the first part to make all connections as mentioned, and the said party of the second part to make the main steam and exhaust connections to and from the machine. That the said party of the second part will pay 1o the party of the first part, as consideration for constructing and erecting the machine and plant, as hereinbefore specified, the said sum of eleven thousand live hundred and eighty dollars, as follows: First payment, the sum of $2,895.00 (two thousand eight hundred and ninety-five dollars), when the tank and pipe are delivered on premises. Second payment, the sum of $2,895.00 when the machine is erected and performing work. Third payment, the sum of $2,895.00 (two thousand eight hundred and ninety-five dollars), 60 days after the machine has been in operation and doing the work guarantied. Fourth payment, the sum of $2,-895.00 (two thousand eight hundred and ninety-five dollars), (60) sixty days.alter third payment. All payments to be made with exchange on St. I.ouis in full. The party of the second part agrees to pay for account of the party of the first part all freight and hauling charges on the machine, piping, and other materials; the amount of said charges to be deducted from the last payment. It is understood and agreed that no agreement, verbal or otherwise, exists in regard to tins contract, other than is herein expressed.”</p> <p>The answer, “for a first defense to the first cause of action,” admits the making of the contract., and in the words of the complaint denies “that the plaintiff has fully complied with and performed all and singular the terms of said contract”: admits making- payments on the machinery mentioned in the contract, hut denies that it has so paid the sum of $7,723.57 as alleged in the complaint, and avers that $838.50 of that sum was paúl on account of other goods, wares, and merchandise. The answer then states “for a second defense to the first cause of action”:</p> <p>“(1) Defendant alleges that the plaintiff failed and neglected to perform the contract in the complaint set forth, according to the terms thereof, in the following-particulars: The freezing tank agreed in said contract to be constructed was not well braced with angle irons and tie rods, to prevent bulging when filled with brine. Said freezing tank was not properly provided with top framework for supporting the covers. The exposed sides and ends of said freezing tank were not neatly and substantially lagged with matched and dressed lumber, nor was the woodwork of said tank in any respect constructed in a good, substantial, and workmanlike maimer. Plaintiff did not furnish one complete apparatus for the distillation and filtration of twelve tons of water per twenty-four hours for the ice cans. Plaintiff did not furnish 240 galvanized ice cans made of No. 18 iron. All piping and tank work furnished by plaintiff pursuant to said contract was not coated with the best quality of mineral waterproof paint.' The material and workmanship was not first class, nor was said machine or'pla.nt constructed in accordance with the latest and best practices. Said machine, when properly operated, at normal speed, did not and does not have power and capacity to develop a refrigerating duty equivalent to that produced by the melting of twenty tons of ice per day of 24 hours, or for the production of twelve tons of good, marketable ice per day of 24 hours. The distilling and filtering apparatus, the freezing tank, and the evaporating coils did not and do not have capacity for the production of twelve tons of good, marketable ice per day of 24 hours.</p> <p>“(2), That by reason of the failure on (he part of the plaintiff to fulfill and perform said contract in the complaint set forth in the particulars aforesaid, said ice-making apparatus, as constructed by the plaintiff, is worth very much less than $6,884.99, the amount which defendant has heretofore paid to the plaintiff on account of the price thereof, and this defendant has more than paid the said plaintiff all sums of money to which it has become entitled under and by virtue of the terms of said contract.”</p> <p>The foregoing averments pointing out specifically the particular parts of the ice-making apparatus which it was alleged were defective are repeated in the answer, and made the basis of a counterclaim of $3,000, and as a foundation for other counterclaims it is alleged that the joints connecting the pipes used in the construction of the machine became loosened and disconnected, permitting 22 drums of ammonia to escape, to the defendant’s damage in the sum of $1,000; that by reason of the .inferior construction of the ice machine the defendant was compelled to expend $900 for repairing same; that by reason of inferior workmanship the steel freezing tank became leaky, and brine escaped, to the defendant’s damage in the sum of $200; that the plaintiff failed to furnish proper galvanized iron cans made of No. 18 iron, as required by the contract, to the damage, of the defendant in the sum of $1,950; that the defendant paid the plaintiff $250 for a filter, which the plaintiff warranted to be well constructed, and of a given capacity, and alleges a breach of warranty, to the defendant’s damage in the sum of $250.</p> <p>There was a jury trial, and a verdict and judgment in favor of the plaintiff for' the sum of $5,502.59, and the defendant sued out this writ of error.</p>

This was an action brought by Sallie Meyer (now Sallie Greenthal), administratrix of the estate of Isadore Mover, deceased, against the St-. Louis, Iron Mountain & Southern Railway Company and Pullman's Palace-Car Company, for damages for the killing of intestate by an insane fellow passenger on defendant’s train and car.

<p>1. Marshal’s Ekes — ■Unnecessary Process.</p> <p>A United States marshal should lie allowed the usual fees for solving subpoenas or other process, even when sucli process is unnecessary or contrary to act of congress, if issued without any connivance or procurement on his part.</p> <p>2. Same — Mileage—Act of March 3, 1893.</p> <p>A marshal should be allowed mileage for arresting and taking a prisoner before the commissioner issuing the warrant, although there was a nearer officer before whom the prisoner might have been taken, unless such warrant was accompanied by a certified copy of ihe complaint. as required by act of March 3, 1833.</p> <p>8. Same.</p> <p>/he act of March 3, 1893, which deprives a marshal of mileage for not taking a person whom he has arrested before the nearest magistrate, does not deprive him of fees and mileage for transporting such person to jail after conviction.</p> <p>A marshal will not be allowed fees for travel, and service of a subpoena on si witness, at a place where there was a deputy to whom the subpoena could have been mailed.</p> <p>6. Same — Pood for Prisoners.</p> <p>A marshal should be allowed the expense of meals furnished to prisoner,? while in custody awaiting examination, even though there is a county jail where the prisoners might bo fed.</p> <p>6. Same — Meads to Jurors — Civil Cases.</p> <p>A marshal should be allowed the expense of meals for jurors, and bailiffs in charge of the jurors, in civil actions to which the United States is a parly, where it seems probable that the meals were furnished by order of Hie court.</p> <p>7. Same — Sending a Deputy by Order of the Attorney Uhnekal.</p> <p>The marshal is entitled to the expense incurred in sending a deputy marshal to accompany troops, by order of the attorney general of the United States.</p> <p>8. Samic — Discharge of Poor Convicts.</p> <p>The marshal should be allowed fees for serving orders to produce prisoners for discharge as poor convicts; also for attendance of a deputy upon (lie commissioner on applications for such discharge, but for one day only.</p> <p>Marshals held entitled to actual expenses incurred for deputy marshals in pursuit of a prisoner without warrant.</p> <p>4. Same — Unnecessary Travel.</p> <p>9. Same — Attendance on Application for. Bail.</p> <p>A marshal is entitled to $2 for attendance upon a commissioner on application to give bail.</p> <p>10. Same — Deputies without Warrant.</p> <p>11. Same — Unofficial Act.</p> <p>Marshal should not be allowed to charge for unofficial acts which might be performed by a private messenger.</p>

Chester W. Rowe was treasurer of Poweshiek county, Iowa, and embezzled a large amount of the public moneys, and. fled the state in company with his brother, Richard R..Rowe, the appellant. Thereupon the following information was filed before H. F. Morton, a justice of the peace of the county: “State of Iowa, Poweshiek County — ss. “In Justice Court, before H. F. Morton, J. P. “The State of Iowa vs. Richard Rowe.

<p>Chinese Persons — Deportation—Merchant—Evidence.</p> <p>Ih proceedings under the act of November 3, 1893 (28 Stat. 7), for the deportation of a Chinese person, it was admitted that on August 1, 1893, he was a merchant, as defined by the statute. On that day the store he and his partner occupied was destroyed by fire, and in the following November he left for China, returning to California in May, 1895. The evidence showed that, before, leaving, the firm had rebuilt and restocked the store, and that, on returning, defendant resumed his connection with the business, which, the partner testified, had always been retained. Held sufficient evidence to show that defendant had not lost the character of merchant, although there was no direct testimony that his name appeared in partnership articles or partnership accounts; nor was his status affected by the fact that he also conducted a gardening enterprise with Chinese labor, his own work being supervisory only. 71 Fed. 283, reversed.</p>

<p>Motion to quash an indictment charging Calvin Saunders with breaking into a building used in part as a post office, with intent to steal goods and chattels of the United States.</p>

<p>Customs Duties — Collections of Antiquities.</p> <p>Antique articles, purchased in separate places, in the course of a trip to Europe, and imported each by itself, without haying been assembled together, cannot be entered free as a “collection of antiquities,” under paragraph 524 of the act of 1890. 72 Fed. 49, affirmed.</p>

<p>1. Copyright — Falsely Marking “Copyrighted” — Action for Penalty - Pleading.</p> <p>A complaint in an action to recover tlie penalty imposed by Rev. St § 4963, which alleges that on a certain date “the defendant, at the city of New York, in the state of New York, did publish and issue a certain book, entitled ‘F. &c.’, and in and upon said book did knowingly insert and impress a false and untruthful notice that the same was copyrighted, which notice was in the following words: ‘Copyright, 1896, by R.,’ ” is sufficient, and is not demurrable, either for failing to negative the possibility that th(> notice was attached to a copyrighted picture, map, or the like, in an uncopyrighted book, nor for insufficiently stating the place where the inserting or impressing of the notice was done.</p> <p>2. Same — Demurrer.</p> <p>An averment, in such a complaint, that the book was not copyrighted by the defendant, is not equivalent to an allegation that the defendant had not obtained a copyright, and is demurrable.</p> <p>8. Same — False Notice of Copyright.</p> <p>Rev. St. § 4963, does not require that the false notice of copyright. must be inserted upon one of the pages of a book, named in section 4962.</p>

<p>1*. False Notice op Copyright — Cuts or Prints.</p> <p>It-is. not. a defense to "an action under Rev.' St. § 4963, to. recover, the penalty, for attaching a notice . of copyright to an uneopyrighted. cut or print, .that such cut or. print was a crude or imperfect representation of an original picture prepared by the agents of the owner of the proprietary rights therein, and by. them inserted in a trade paper, as a means of advertising copies of the original pictures for sale to the trade.</p> <p>2. Same — Penalty—Who. Liable.</p> <p>The penalty provided by Rev. St. § 4963, is incurred by one who causes the publication in a trade paper of an uncopyrighted print or cut, with a notice of copyright attached, though he does not himself insert or impress, such notice.</p> <p>8.' Sam-e — Cuts or Prints. •</p> <p>A cut or print may be a proper subject of copyright, though the person by whom it is prepared is not entitled to copyright it.</p> <p>4. Same — Publication of Cut Or Print. ,</p> <p>The insertion of a print or cut, as an advertisement, in a trade paper, circulating among all who choose to pay for it, is a publication, within Rev. St. §§ 4962, 4963.</p> <p>5. Same.</p> <p>It is not a violation of R,ev. St. § "4963, to impress, upon an imperfect miniature cut or print of a copyrighted picture, a notice of copyright, though such cut' or print is not separately copyrighted.</p>

This was a suit in equity by Oliver Wendell Holmes, Jr., executor of the estate of the late Oliver Wendell Holmes, against Michael It. Donohue and others, for alleged infringement of the copyright of “Hie Autocrat of the Breakfast Table.” The cause was heard upon demurrer to the amended hill.

This was a hill in equity to restrain alleged unfair competition in trade. This is a suit brought for the purpose of restraining unfair competition in trade. The original hill was filed by Henry L. Pierce, and a supplemental bill has been filed by said Pierce and Walter Baker & Co., Limited, citizens of the slate of Massachusetts, against W. H. Baker, a citizen of the state of Virginia, residing in I he Western district of Virginia.

This was a suit in equity by the Tannage Pateut Company against William W. Adams and others for alleged infringement of letters patent Nos. 291,784 and 291,785, issued January .8, 1884, to Augustus ¡áchultz, for processes of “tawing- hides and skins.” The cause was heard on motion to dissolve a preliminary injunction.

<p>Patent Suits — Preliminary Injunction — Adjudications in Other Circuits.</p> <p>An adjudication sustaining a patent is not conclusive in favor of granting a preliminary injunction in a suit in another circuit, where a decisive question raised in the latter suit was not contested in the former, and it appears that, in the former, a motion for reargument for the purpose of raising this point has been entertained, but not yet decided.</p>

<p>1. Patents for Inventions — Patentability—Road Scraper.</p> <p>Letters patent No. 379,550, issued to the Western Wheel Scraper Company March 13, 1888, and No. 380,068, issued to said company March 27, 1888, for improvements in wheeled road scrapers, consisting of a combination of old elements to produce a machine in which vertical, horizontal, and angular adjustments of the scraper blade may be made by the man who rides it without stopping the machine, are not void for want of invention.</p> <p>3. Same — Infringement.</p> <p>Such patents are infringed by a device containing all the substantial elements of the patented machines, except that rods are substituted for chains, as a means of changing the position of the scraper blade.</p>

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

<p>1. Patents — Invention—Forome Beds.</p> <p>There is no invention in the use of a pin or hook on the hack of a folding bed lounge to automatically engage with an eye on the headrest when the two sections are folded together, thus holding the back lirmly in place.</p> <p>2. Same.</p> <p>The Olnne patent, No. 391,957, for a folding bed lounge, is invalid as to the first claim for lack of invention.</p>

This was a suit in equity by Jacob H. Kurtz, trading as the National Manufacturing Company, against D. F. McDowell and others, trading as the Pittsburgh Ring Company, to restrain the infringement of a patent. From an interlocutory order granting a preliminary injunction, defendants appeal.

This was a suit in equity by the Diamond Match Company against John H. Schenck and John M. Moore, trading as Dr. J. H. Schenck & Sons, and the Binghamton Match Company, for alleged infringement of letters patent No. 483,166, issued September 27, 1892, to Joshua Pusey, for a friction-match device, designed to be carried in the pocket. The circuit court sustained the patent, found infringement, and entered a decree accordingly. 71 Fed. 521. Defendants appealed.

This Was a suit in equity by the Cleveland Faucet Company against the Syracuse Faucet Company for alleged infringement of a patent for improvements in hydraulic air pumps.

Libel in personam by Joseph Petersen and others, seamen of the schooner Viking, against the J. F. Cunningham Company, to recover certain penalties provided for by section 4568, Eev. St., for the failure of the master to supply the libelants with certain articles of food, as per the agreement contained in the shipping articles; also to recover for failure of. master to serve lime juice, sugar, and vinegar as required by section 4569, Eev. St.

<p>Marine Insurance — Abandonment—Salvage.</p> <p>The insurer of a vessel’s cargo, which has been so damaged by a peril insured against as to become a total loss, or as to make an abandonment inevitable, has such an interest in the salvage of such cargo, even before abandonment, when it is difficult or impossible to discover or deal with the owner, and especially if his remedy is likely to be lost by delay, as to entitle him to come into equity to protect the same, and to assert, as against the master of the veSsel or others, his right to be consulted as to the disposition of such salvage.</p>

<p>Collision — Ferryboat and Steamer — Going to tub Left — Contrary Signals — Not Stopping.</p> <p>Tbe ferryboat W. B., coming up tbe North River and rounding Fort William, bound for tbe Battery, bad tbe steamer S., coming down tbe East river, on ber starboard band; tbe ferryboat gave a signal of two whistles three times, and attempted to go to tbe left across tbe bows of tbe steamer, and starboarded; the steamer heard but one of these signals, and that after tbe steamer bad given a signal of one whistle: Held (1) that the ferryboat was in fault for departing without cause from the rule of the road to keep to tbe right, and for attempting to cross the steamer’s bow without an assenting signal; (2) that the steamer was in fault for not reversing until about the moment of collision, in violation of the statutory requirement to stop or reverse when in danger of collision, and also by Inspectors’ Rule 3; and that the damages should be divided.</p>

Appeals from the District Court of the United States for the District of Massachusetts. This was a petition by the Metropolitan Steamship Company for limitation of liability for collision between their steamship H. F. Dimock and the yacht Alva, at the same time denying liability; and a libel by William K. Vanderbilt, as owner of the yacht Alva, against the Metropolitan Steamship Company, for damages arising from the same collision.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a suit originally brought in the supreme judicial court of Massachusetts by Charles A. Gregory against Frederick A. Pike and others to compel the surrender of certain notes. The case was removed to the United States circuit court. In a supplemental bill filed by complainant, additional parties were made defendants, and, by amendment, after the decease of Charles A. Gregory his executrix, Mary II. Pike, was made defendant. The facts out of which the controversy arose are fully stated in 15 C. C. A. 33, and 67 Fed. <837. Appeals from the decree of the circuit court were taken to the circuit court of appeals, and that court made an order directing the form of the final decree. The case was remanded to the circuit court with a mandate requiring the entry of the; decree in conformity with the order. From the decree entered by the circuit court, plaintiff appealed.</p>

These were four actions at law, brought by the National Cash-Register Company; the first three being against Arthur S. Leland and others, and the fourth against James H. Wright and others. The case was heard upon a motion by plaintiff for default because of the failure of the defendants to answer certain interrogatories filed in accordance with the state statute.

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

This was a suit by the Montana Central Railway Company against A. F. Migeon, JB. Tibbey, and N. B. Ringeling to determine an adverse claim to certain mining ground. The circuit court rendered a decree for the plaintiff (68 Fed. 811), and the defendants have appealed.

Suit in equity by S. B. Thompson, receiver of the Central Nebraska National Bank, ágainst the German Insurance Company and others, to recover the amount of an assessment upon certain shares of stock. The original hill was dismissed. See 76 Fed. 892. Submitted on Demurrer to Amended Bill.

Exceptions to the report of a special master disallowing certain claims on rebate vouchers against the property in the hands of the receiver of the Distilling & Cattle-Feeding Company.

This was a suit by the Southern Pacific Railroad Company against David R. Brown and others to establish a claim to certain land. The circuit court dismissed the bill (68 Fed. 383), and the complainant appealed. This court, on June 1Í), 1806, filed an opinion affirming the decree below. 21 C. C. A. 236, 75 Fed. 85. The appellant has now moved for a rehearing.

<p>1. Conflict of Laws — Suhvival of Actions.</p> <p>The question of the survival of actions against the estate of a decedent. Is determined by tbe law of the jurisdiction within which he was domiciled at the time of his decease, not by that of tbe jurisdiction where the cause of action arose.</p> <p>2. Wrongful Arrest — Liability of Officer — Process.</p> <p>■An officer acting under process regular in form, based upon a proper indictment appearing of record, is not to be field liable for fiis acts because the grand jury made a mistake in finding the indictment.</p>

This was an action by Peter Reynolds, as administrator, against Charles P. Chapman, for causing the death of plaintiff’s intestate while he was at work in defendant’s quarry. Judgment for plaintiff, and defendant appeals.

This action was brought by John it. Shaw, the plaintiff in error, against the independent school district of Riverside, in Lyon county,… Held: to the amount of $72,000, at 30 cents on the dollar, and take in exchange new bonds, drawing 7 per cent., this not counting the accrued interest: Now, therefore, it is resolved hy the hoard that they issue bonds to the amount of $30,000, and exchange the same with the aforesaid O. W. Rollins, and also to allow Ihe treasurer 2 per…

This was an application by an importer of certain goods for a review of the decision of the board of general appraisers in respect to the amount of duties payable thereon. The question involved arose under the customs administrative act of June 10, 1890. The importer entered certain china ware upon a pro forma invoice, made at Dux, Bohemia. The invoice stated the value of the merchandise both in florins and marks.

This was a suit in equity by William J. Matheson against John Campbell for alleged infringement of patent No. 345,901, issued July 20, 1886, to Meinliard Hoffman and Arthur Weinberg, and assigned to complainant. The circuit court construed and sustained the patent, and found that: the defendant's product infringed the same, but left the ease open for further proofs as to the date of the sale complained of. 69 Fed. 597.

<p>Appeal from the Circuit Court of the United States for the '.Northern District of Illinois.</p> <p>This suit is brought to restrain the Infringement of letters patent No. 554,0-14, dated February 4, 1896, issued to the appellant, Edward L. Williams, for a bicycle lamp.</p> <p>The patentee states, in his specification, that the object of Ms invention is ‘to produce; a serviceable and compact bicycle lamp from materials which are easily workable and adapted to be economically wrought into such forms as to secure great strength as well as lightness, and provide suitable spaces for the lamp accessories, such as the reflector and colored glasses.” He states that, in carrying out his invention,’ “1 make the body of the lamp or lantern globular in form, by-spinning such body from a single piece of sheet metal. This globular body is provided with circular openings in three of its sides, to one of which is fitted a perforated base ring, affording ventilation at the bottom, and having a slitted and corrugated flange, providing spring tongues for attaching the oil reservoir and wick tube. To the top opening is fitted the dome, also adapted l'or ventilation, and to the side opening is fitted a hinged door carrying the front lens or bull’s-eye. All of the parts above mentioned are made of sheet metal and spun into form. The lamp is provided with the usual or suitable means for attaching it to a bicycle, and is adapted to bum any illuminating fluid.”</p> <p>The claims of the patent are as follows: “(1) A bicycle lamp having its body or flame chamber composed of a single sheet of metal, wrought into hollow spherical form, and provided with openings in its top and bottom for the attachment of the ventilator dome and burner, respectively, and having, also, an opening in its front of less diameter than that of the body, and a glass fitted to said opening, a burner arranged in the vertical axis of the flame chamber, air-inlet openings, below the flame, and the interior of the flame chamber having curved surfaces only, over which the air currents may pass without deflection upon the flame, substantially as described. (2) A bicycle lamp having a sheet-metal body, of spherical foisoj, provided with a circular opening in its bottom, a ventilating" ring secured in said opening, and having its lower edge circumferentially corrugated and vertically slitted, and an oil-reservoir provided with a -cylindrical corrugated flange adapted to be forced over the slitted portion of the ventilating ring, substantially as described. (3) A bicycle lamp having a hollow spherical body, formed of a single sheet of metal, and providing a flame chamber whose transverse and vertical diameters are equal, and having an opening in its bottom, a burner arranged in said opening, and, in fhe vertical axis of the flame chamber, air-inlet openings arranged concentrically to the burner and below the flame, .and an outlet for the vitiated air at the top of the chamber, substantially as described.”</p> <p>On the 18th of Hay, 1896, the complainants filed a bill of complaint in the court below, in the usual form, alleging infringement of this patent by the defendant, and gave notice of a hearing of a motion for injunction on the 25th of May following. This motion was heard on the 26lh of May upon the bill and certain affidavits on behalf of the complainants in support of the patent and of infringement by the defendant. On hehalf of the defendant certain affidavits were filed — one by a patent expert, attacking the novelty of the patent in suit, and disputing that it represented invention, and likewise claiming that the alleged invention was anticipated by a patent, for improvement in lamp. No. 38,457, issued to .Tames S. Atterbury and Thomas B. Atterbury, dated May 12, 1863. Certain affidavits in rebuttal were also presented, tending to impeach the evidence attacking the patent and to sustain the invention of the complainants’ patent. On the 26th of May, 1896, the court below overruled the motion, and denied the preliminary injunction. Thereupon 'the complainants prayed an appeal, which was allowed, and the cause was heard in this court on the 8th day of June, 1890.</p>

This is an appeal from the decree of the circuit court for the Western district of Michigan sustaining a demurrer filed by tbe defendants, and dismissing tbe bill of tbe complainant. The averments of the bill are substantially these: The complainant, a corporation of the. state of Rhode Island, is, by assignment, tbe sole owner of several patents for inventions relating to the art of fastening buttons to shoes with metallic fasteners.

<p>Appeal from the Circuit Court of the United States for the District of Maine.</p> <p>This was a bill by the Westinghouse Air-Brake Company against the Burton Stock-Oar Company for alleged infringement of letters patent No. 376,887, issued January 24, 1888, to George Westinghouse, Jr., for an infringement in air brakes, and covering a device known as the “quick-action valve.” The cause was heard in the circuit court on a motion for a preliminary injunction, and an order was entered denying such motion. 70 Fed. 619. From this order the complainant has appealed. The facts, as they appeared on the hearing of the mo-lion, were, in substance, that the Burton Stock-Gar Company is not a manufacturer or seller of the infringing device. It is the owner of patented stock cars used upon railways all over the country. Upon these cars it has in use about 1,200 sets of air-brake apparatus containing the quick-action valve in issue, which were purchased by it from the New York Air-Brake Company, the manufacturer thereof. In a previous suit brought by tlie complainant against the New York Air-Brake Company in the Second circuit, the circuit court, and also the circuit court of appeals, had sustained the patent, and found infringement 59 Fed. 581, and 11 O. C. A. 528, 63 Fed. 962. The Burton Stock-Car Company had purchased the apparatus used on its cars before the rendition of these decisions, but with notice of the claim of infringement, and of the pendency of the-suit. There was apparently no claim that it had purchased any of the devices in issue after those decisions, or that it had any intention of making further purchases. On the hearing of the motion, defendant did not contest the validity or construction of’ the Westinghouse patent, nor did it deny infringement, but reserved these questions until the final hearing. It further appeared that the complainant does not use its own devices, or-receive any royalty for their use. It grants no rights or licenses under its patent, but itself manufactures and sells the patented device, and then only in connection with other parts, comprising together complete sets of air-brake apparatus. The quick-action valve has never been sold separately, so that there is no fixed price or royalty by which damages or profits can be measured. Upon these facts, it was contended for the defense that the case was not one for preliminary injunction; that the effect of such an injunction would be to compel the defendant to remove the existing air-brake' apparatus from its cars, and replace them with complete new sets, including parts not covered by the patent, which it would be compelled to purchase from the complainant; that in order to do this it would be necessai-y to call in its cars from all over the country to its shops in Chicago, which would involve large expense and very great inconvenience, not only to the defendant, but to the public; that, as there was no question as to defendant’s solvency, the continued infringement during the suit could result in no irreparable loss, but the damage; if any, was such as could be compensated by a pecuniary award.</p>

This w7as a suit in equity by Oscar Lublin against the Stewart, Howe & May Company and others for alleged infringement of a patent relating to dress stays. The circuit court dismissed the bill, holding that the patent was void for want of invention, in view of the (hn-tis patent, No. 243,519, for an improvement in the backs of corsets (75 Fed. 294), and complainant appealed

This was a suit in equity by the McKay-Copeland Lasting Machine Company against the Copeland Rapid-Laster Manufacturing Company for alleged infringement of letters patent No. 243,917, issued July 15, 1881, .to R. H. Hurlbut and C. E. Kennard for a. machine for flanging the counters of boots and shoes.

This is an appeal from a decree of the United States circuit court, Eastern district of New York, dismissing the bill. The suit is brought to enjoin infringement; of letters patent No. 238,940, issued March 15, 1881, to James M. Low, for an improvement in dentistry. Suit was heretofore brought by this complainant in the Southern district of New York, on the same patent (with others), against one Richmond. The patent was sustained, and infringement found. 80 Fed. 775.

This is an appeal from a final decree of the district court for the Eastern district of New York, entered August 26, 1895, in favor of the libelant, for the sum of $1,666.57, damages for breacli of contract to carry cattle by the steamship Alvah, resulting from the shutting out of 12 head.

<p>Appeal from tbe District Court of tbe United States for the Southern District of Yew York.</p> <p>The Seneca, an iron vessel 279 feet in length, and belonging to the New York & Cuba Mail Steamship Company, sailed from Havana for New York, on Saturday evening, December 23, .18,93, with' a cargo consisting mainly of hemp, tobacco, and hides. The vessel has a lower hold, a lower between-decks, and an upper between-decks. A passageway or bunker on each side of the engine room in the upper between-decks extends beyond the engine room, fore and. aft, to wooden bulkheads, each of them being about 12 feet from the engine room. They are not watertight. A door in each swings on hinges from above. Upon this voyage, these passageways were closely stowed with hemp in bales, some of, which were compressed, and some were not compressed. Above this hemp were two ventilators, opening upon the deck, each 14 inches in diameter. 1,658 bales of tobacco w'ere stowed in the after upper between-decks. Of these bales, 221, belonging to Mr. Fortier, of Montreal, were stowed against the wooden bulkheads. About 1 o’clock a. m., on December 24th, fire was discovered in the hemp in the lower between-decks. Streams of water were turned from the upper between-decks upon the fire for two or three hours, until the men who were at work near the fire were driven back by the heat and smoke. The hatches upon the upper deck were then battened down, and at 3:20 a. m. the vessel started for Havana, when steam was turned into the lower between-decks through perforated pipes two inches in diameter, at a boiler pressure of 100 pounds to the square inch, for the purpose of deadening the fire, and was continually discharged upon it until about 10:30 a. m., when the ship reached Havana, and the furnace fires were drawn. The efforts of steam fire engines to extinguish the fire by water proved unavailing, and at 5 o’clock p. m. the captain opened the after hatches, discharged as much cargo as possible into lighters, and then scuttled the ship. Fortier’s tobacco, with that of other shippers, was sent to New York in other vessels of the steamship company. The Seneca was raised, and went, with the cargo remaining on board, to New York. Upon the arrival of these several portions of the cargo general average bonds were executed, and thereafter an adjustment of general average was made. The adjusters were of opinion that the amount to be made good to Fortier for loss on his tobacco was the sum of $2,987.55, such being the amount of damage by water to G4 bales, the adjusters being satisfied that this water damage was received on the lighters as a necessary consequence of the exposure incident to removal preliminary to scuttling. He was .also required to contribute upon the value of his whole shipment, which left him owing $934.57 upon the final statement. The tobacco was sold at auction, and realized, over and above expenses, the sum of $4,393.60, making a net loss of $12,766.64. Upon his policy of insurance he received $8,006. and assigned to the insurers his claim against the other interests in general average. He insisted that the net loss above $2,987.55 was attributable to injury caused to the tobacco by the steam before the ship reached Havana, and that this part of his loss should be allowed in general aver? age. The adjustment also compelled Fortier’s tobacco to contribute towards the expenses of raising the submerged ship and cargo. The libel of the insurance company was brought to obtain the difference which would result from a proper adjustment of general average. The libel of the steamship company was brought to compel the payment of the amount found to be due from Fortier by the adjustment as made. The district court dismissed the libel of the insurance company, and decreed in favor of the steamship company. 70 Fed. 262.</p>

This was a libel by John Green against the cargo of the steamer Lewiston to recover damages in the nature of demurrage. ■ The libelant’s steamer Lewiston left Chicago, November 28, 1894, with a cargo of corn consigned io Ogdensburg, N. Y. She reached Ogdensburg about noon December 4th. She was not unloaded until after December 24th.

<p>1. Shipping — Injury to Laborer — Attachment.</p> <p>A claim for personal injuries received while stowing cargo is not one which will support an attachment under the laws of Louisiana, or justify the libeling of another ship of the same owners.</p> <p>2. Same — Laches—Suits in IIem and in Personam.</p> <p>Failure to sue foreign owners, upon whom service «nay -he had through an agent, for a period of 16 months, and until the first return of the ship to port, for personal injuries received while stowing cargo, is not such laches as will prevent the maintenance of a suit in rein, where no other liens or rights have intervened; for, by suing in personam, the injured party would he compelled to waive his lien, and rely on a personal judgment against nonresident foreigners.</p> <p>8. Same — Pleading.</p> <p>A libel in rem to recover damages for personal injuries alleged that libel-ant was “engaged in the service of the ship, on board, in the work of loading said vessel,” and, while so engaged in the hold, the mate, captain, or other officer in authority negligently riggeá a gangway over the hold, and .across the hatch, for the purpose of wheeling coal for coaling the vessel; that tlie hatch was negligently left open and unguarded; and that the mate, captain, etc., “caused wheelmen to wheel coal over said gangway, and over the said open hatch,” when, without warning, a lump of coal fell upon libelant, and injured him. ll¡-!<!. that this was not. sufficient to charge Hie ship, as there was no sufficiently direct allegation that libelant was in the employ of the ship, or ihat tiie dangerous appliances were furnished and placed by the sMp’s officers, rather than by independent stevedore contractors.</p>

<p>1. Collision at Stsa — Steam and Sail — Fog—Excessive Speed — Insotmcient Fog Horn — Damages Divided.</p> <p>The steamship Niagara, bound for Havana, came in collision in dense fog oil the coast of Virginia wi1h the hark Hales, bound north. The signals of each were not heard by the oilier in time to avoid collision; the steamer was making 8 to 10 knots, % of full speed, and for this speed was held liable. On the evening previous to the collision, when the fog arose, the bark’s mechanical fog liorn on examination was found to give an unsatisfactory sound, and a mouth horn was used instead. The mechanical horn had not been used or examined since the departure of the bark for Cuba, nor since she left Philadelphia on lier outward trip: Held, ihat the horn must be regarded as insufficient at the time the bark sailed from Cuba, and that the latter was, therefore, in fault for not giving the mechanical signals required by law; the need of additional provision, either by means of repair on board, or of a spare horn at the .start, in order to enable the vessel to give the required signals throughout the voyage, considered.</p> <p>2. Same — Harter Act — Apportionment op Damages.</p> <p>In cases falling within the Harter Act, the intent, of the Act is that damages to cargo arising from negligence in navigation shall be borne by the cargo owner, and not by the ship; the Act was not designed to increase or to diminish the liability of the other vessel in cases of mutual fault and a division of damages. The previous liability of either vessel, therefore, cannot be exceeded, but may bo readied, if that is necessary to indemnify the cargo of the other vessel; and where one vessel and cargo are wholly lost and the ship is of less value than the cargo, the shipowner can recover from the other vessel half his loss and retain it for his own use, and the cargo owner will lose so much of his claim. The lack of a sufficient mechanical horn and of means of repair on hoard when the ship sailed, is a defect in equipment which renders the Harter Act inapplicable. If sufficient means of repair were on board, the failure to repair would have been negligence in the management of the ship, making the Harter Act applicable. On this point leave to apply to give further evidence was allowed. This, however, does not here affect the extent of the Niagara’s liability, but only the distribution of that amount as between the cargo owner and the owner of the Hales.</p> <p>3.' Same — Captain’s and Seamen’s Pep.sonal Effects.</p> <p>The; captain whose duty it was to attend to the sufficiency of the horn before sailing, can only recover half damages against the other vessel, which the latter can offset against her iiayment for cargo. The seamen, as the fault was in the equipment, can recover full damages; since it was the fault of the owners and not in the navigation or management of the ship to which they were privy.</p>

Motion to Remand Case to the District Court in tlie City of New York for the Second Judicial District. This is a summary proceeding for the recovery of premises No. 1 Front street. It was instituted by the filing of a petition on behalf of the landlord in the district court for the Second judicial district, the ground of the proceeding being the nonpayment of rent. The premises were leased by Sherman as tenant.

<p>Removal of Causes — Federal Question — Pleadings.</p> <p>Under Act Cong. March 3, 1887, as amended August 13, 1888, an action coin-mi need in a state court cannot be removed to a federal court, as a case arising mifler the constitution, laws, or treaties oí the United States, unless tlie fact, that it so arises appears from the piainiiff’s statement of his own claim; and (lie statement in the complaint, by way of anticipation of a defense, of statutes of the United States, etc., upon which a defense may be founded, will not entitle the defendant to remove the ease.</p>

This was a suit by the Boston Si Maine Railroad and others against Henry W. Slocum and ©there. The case was heard upon a plea to the jurisdiction.

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

<p>Sur Application for Leave to File a Supplemental Bill in the Nature of a Bill of Review.</p>

<p>Suit by Joshua C. Sanders against Ferdinand W. Peck and one Corbin.</p>

This was a bill in equity by the Minnesota Tribune Company, a Minnesota corporation, against, the Associated Press, a corporation organized under the laws of Illinois, to enjoin the alleged violation of a contract, and to recover damages for past violations.

<p>1. Judgment against Administrator — Fraudulent Conveyances — Rights op Heirs.</p> <p>Under section 1582 of the California Code of Civil Procedure, as it stood in 1898 (providing that actions for the recovery of real or personal property, or for the possession thereof, may be maintained by and against executors and administrators in all cases in which they might have been maintained against the testators or intestates), a judgment in an action brought by an assignee in bankruptcy against the administrator of the deceased bankrupt, to set aside conveyances of real property as fraudulent, 'by which judgment such conveyances are declared fraudulent, and the administrator, and all persons claiming under him or the intestate, are enjoined from asserting title to the lands, is binding upon the heirs of the intestate, and bars them from asserting title to the lands as against the assignee; and such heirs will be enjoined, at the suit of the assignee, from prosecuting actions against him to recover the lands.</p> <p>2. Bankruptcy — Enjoining Suits against Assignee.</p> <p>The prosecution of a suit brought against an assignee in bankruptcy, without leave of the court appointing him, will be enjoined, on his request, by such court.</p>

<p>National Banks — Increase of Stock — SunscniPTioNs—Comptroller’s Approval.</p> <p>The stockholders of the C. National Bank vote,l to increase its capital $300,000, and M. subscribed and paid for 23 shares of the proposed increase. Only $150,000 of such proposed increase was ever paid for, and the directors applied to the comptroller of the currency to approve, the increase to the amount of $150,000, which was refused. Afterwards the stockholders voted an increase of $150,000, and applied for approval thereof, which was refused; but later the comptroller, on his own motion, on the eve of the bank’s insolvency, approved this increase. M. sued the bank and its receiver to recover the amount paid by him under his subscription to the first proposed increase. Held, that the comptroller’s refusal to approve the first increase to the extent of $150,000, nullified the vote for the increase and M.’s subscription to the stock, leaving him in the position of a creditor of the bank for the amount paid in, and the subsequent proceedings, he not having participated therein, could not reanimate liis contract of subscription.</p>

<p>•Appeals from the Circuit Court of the United States for the District of Kansas. ■</p>

<p>1. Rkceivebs — Poweb to Sub.</p> <p>A receiver of a corporation, appointed by a state court, and empowered, by (lie order appointing him, to get in the assets of the company, and for that purpose to bring such suits as may be necessary, can sue in a federal court upon a contract for insurance made with the company.</p> <p>2. PiiAOTroE — UM'OKeixo Stipulation.</p> <p>For the purpose of speeding a cause, the attorneys on both sides entered into a stipulation to serve their pleadings on each other before the time to file the same, and to take the evidence in the cause within certain fixed periods, and submit the case so made up to the court. After all the evidence had been taken, and the case was ready for submission, the defendant applied to the court for leave to file an amended answer. Held, that the stipulation, deliberately made, should he compiled with, and leave to amend should not be given.</p> <p>8. Equity Practice — Amending Pleadings.</p> <p>The federal courts in equity, while indulgent In allowing amendment of pleadings in matters of form or detail, are slow to allow amendments in matters of substance. Accordingly, held, that an affidavit of the defendant’s attorney in a suit to enforce a contract for insurance, staling that the deponent had only learned since filing his answer that the complainant sought merely the usual form of policy, and not an unrestricted one, is Insufficient to justify granting leave to amend the answer when the bill clearly shows that only the usual form of policy was sought.</p> <p>4. Same — Exceptions to Answer.</p> <p>It is not .proper ground of exception to an answer that it alleges that the defendant “doth not admit” the allegations of the bill on certain topics “to be tree,” and does not specifically answer whether any one allegation is true or false, nor that It does not explicitly admit or deny that .there was a contract as alleged in the bill.</p> <p>6. Same — Form.</p> <p>An exception to an answer should state the charges in the bfil to which the answer excepted to is addressed.</p> <p>6. Insurance — Contract for Policy.</p> <p>After a long correspondence between certain insurance brokers, representing complainant, and the agents of the defendant insurance company, in regard to the issue of policies on complainant’s property, the rate of premium, division of risk, specific description of the property, etc., the defendant’s agents, on September 3d, telegraphed the brokers, “With specific form, can write $10,000 at 90 cents, if it will help you.” On the same day the brokers replied by mail, acknowledging receipt of the telegram, asking the agents to do as proposed, and inclosing specific forms of description of the property for use in the policies. This letter was delayed in the mail through insufficient postage, but was received by the agents in the afternoon of the next day. It appeared that the forms sent were satisfactory to them, and they were in the act of writing out the policies, when they learned that the property had been burned on September 4th, before the receipt by them of the brokers’ letter. Held, that there was a completed contract to insure complainant's property, and that the defendant company was liable for the amount of the policy which it had so agreed to issue.</p>

<p>On Motion for Rehearing. For former opinions, see 18 C. C. A. 409, 72 Fed. 10; 16 Sup. Ct. 1120.</p>

<p>Constitutional Law — Obligation of Contracts — Cancellation of Mortgages.</p> <p>On July 30, 1878, B. gave to a New York insurance company a mortgage on land in Washington county, Pa., to secure payment at the company’s office in New York City of $5,500 with 7 per centum interest, the then legal rate in the state of Now York. On May 19, 1896, the administrator of B. instituted a proceeding in the court of common pleas of said county of Washington, under the Pennsylvania act of June 20, 1883, for the satisfaction of the mortgage; and after constructivo notice to the insurance company by newspaper publication in said county, upon an ex parte hearing (the company not appearing), the court decreed satisfaction of the mortgage upon payment into court of the balance due as claimed by the petitioner, such balance being ascertained by computing interest at the yearly rate of six per centum. Held: (1) That said act of June 20, 1883, could not be construed as applicable to this mortgage, for to give it such retrospective effect would be to impair the obligation of the contract by changing the place of payment. (2) That the decree, being beyond the power conferred by the act, and not within the jurisdiction of the court, was void, and furnished no ground of defense to a scire facias on the mortgage from the circuit court of the United States.</p>

<p>1. Plííatmnü* and Evidence — Relevancy and Materiality.</p> <p>In an ad ion for breach of contract, the complaint averred that it was agreed between the parties that plaintiff should manufacture for defendants 70 cases of knit underwear, of the particular description, siyles, sizes, qualities, and assortments set forth; that, in accordance with such agreement, plaintiff proceeded to manufacture “such goods,” and completed all of the “said goods.” The denials of the answer put in issue these averments. It appeared that :> cases of the goods had been sent to defendants, and that, thereafter they had canceled the order, alleging that the goods so sent were imperfect and unmerchantable. The remaining 67 cases were duly tendered, and inspection offered, but wore not forwarded to defendants. Held that, under the pleadings, plaintiff was entitled to introduce testimony showing that the contents of the whole 70 cases, including those not forwarded, were in conformity with the contract.</p> <p>2. Cross-Examination — Discretion of Court.</p> <p>In an action for damages for refusal to receive goods purchased, defendant was asked, on cross-examination, whether, about the time of canceling the contract with plaintiff, he had not also canceled orders which he had given to other parties. Held, that it was within the discretion of the trial judge to permit this question to be asked, as tending, in some measure, to affect the credibility of defendant.</p>

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

This was an action by John J. Hennessy, William M. Hennessy, John Seaton, Frank W. Flint, and John McChiigan against Hiram Gr. Bond. The court sustained a demurrer to the complaint, and entered judgment for defendant. Plaintiffs bring error.

<p>1. Mines and Mining — “Working a Mine.”</p> <p>The term “working a mine,” as used among miners, implies, not merely the right to explore and develop, but the right to extract and appropriate ores as the owner himself might do.</p> <p>2. Same — Contract—Bond for Title.</p> <p>Defendant authorized plaintiff to procure for him, from certain third parties, a bond or agreement to convey to him certain mining claims on specified terms, among which were that plaintiff should have the right to go into possession and work the mines pending the continuance of the bond. Plaintiff obtained a bond which allowed defendant to enter and work the property in such manner as the owners should approve, and to remove only a specified quantity of ore, the proceeds of which were to be placed in bank to the owners’ credit. Held, that this was not such possession and right to work the mine as defendant had stipulated for, and he was not bound to accept the bond.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal from a decision of the circuit court for the Southern district of New York, filed January 9, 1896, reversing a decision of the hoard of United States general appraisers, which had affirmed the decision of the collector of customs at the port of New York. The importation was of certain fish oil, known in the trade as “Japanese fish oil.”</p>

<p>1. Patents — Invention—Machines for Coating Photographic Paper.</p> <p>In a machine for making sensitive photographic films by coating the paper with an emulsion, merely increasing the distance between the coating roll and the driven, smooth rolls, to give further time for drying and setting, does not involve invention. '</p> <p>2. Same — Analogous Use — Mechanical Skill.</p> <p>The transfer and adaptation of a machine for coating glass and emery paper to the art of coating paper with gelatine emulsion for photographic purposes is merely an analogous use, and does not involve invention, where the changes required are merely such as would occur to a skilled mechanic when confronted with the problem of applying an emulsion of a different consistency from that formerly employed.</p> <p>3. Same — Invention.</p> <p>The Eastman and Walker patent No. 358,848, for a machine for making sensitive photographic films, held invalid for want of patentable invention, in respect to claim 3, which comprises a roll of suitable paper arranged to pass through guide rolls, and around a coating roll partially submerged in a trough of gelatine emulsion, and thence over driven, smooth rolls to a hang-up of looping slats, at such distance from the coating roll as to allow the coating to set before reaching the hang-up.</p> <p>4. Same — Novelty—Infringement.</p> <p>The Eastman and Walker patents Nos. 370,110 and 370,111, both for processes for coating photographic paper, considered, and the former held not infringed as to claims 1, 2, 3, and 4, and the latter held void for want of patentable novelty as to claim 3.</p>

<p>1. Patents — Acquiescence in Examiner's Rulings — Limitation of Claims.</p> <p>An applicant, after inserting limitations in the specifications and claims pursuant to the requirements of the examiner, cannot qualify or minimize the effect of his acquiescence by protesting that the action taken was not an acquiescence, and that he expects to insist on a construction of the amended claims which will cover the same ground as the rejected claims. If he dissents from the examiner’s ruling, he should take the question to the appellate tribunals of the patent office, and thence to the courts. 68 Fed. 196, reversed.</p> <p>2. Same — Limitation—Tilting Chairs.</p> <p>The Connolly patent, No. 354,043, for a “tilting and rocking chair,” is not for an invention of a primary character entitled to a wide range of equivalents; and in view of the prior state of the. art, and of the proceedings and ruling had in Uio patent office, must be limited to the use of a. spiral spring in a chair with a lilting and revolving seat, and therefore does not cover platform rocking chairs having spiral springs. 08 Fed. t!Hi, reversed.</p>

This is an appeal from a decree of the court below, which dismissed a bill for the infringement of letters patent No. 300,828, issued to A. Wellington Adams, on Tune 24, 1881, for improvements in electric motors, on the ground that there was no novelty and no patentable invention in any of the combinations claimed therein. 63 Fed. 986.

<p>Tbis was a suit in equity by tbe Municipal Signal Company against tbe Gamewell Fire-Alarm Telegraph Company and others for alleged infringement of letters patent Nos. 359,687 and 359,688, granted March 22, 1887, to B. J. Noyes, for improvements in municipal signal apparatus. In August, 1892, after a bearing on tbe pleadings and proofs, tbis court entered an interlocutory decree for injunction and account. 52 Fed. 464. From tbis decree defendants appealed to tbe circuit court of appeals, which, on April 11, 1894, affirmed tbe same. 10 C. C. A. 184, 61 Fed.'949. After tbe going down of tbe mandate, no steps were taken by complainant to have an accounting, and on June 12,1895, defendants filed in tbis court a petition for rehearing, and for leave to file a supplemental bill in the nature of a bill of review, based on alleged newly-discovered evidence. This petition was denied by tbis court for want of power, in tbe absence of any permission reserved in tbe mandate of the circuit court of appeals. Thereafter a petition was presented to tbe circuit court of appeals asking leave to file in tbis court tbe said supplemental bill in tbe nature of a bill of review. Tbe circuit court of appeals, after a full bearing upon tbe petition, entered a decree merely authorizing tbe defendants to present a petition to tbis court for leave to file such bill. 20 C. C. A. Ill, 73 Fed. 908. Such petition has accordingly been presented to tbis court, and supported by affidavits.</p> <p>The order made by the circuit court of appeals, authorizing the present proceeding in this court, limited the scope of the proposed supplemental bill in tbe nature of a Lili of review to presenting alleged newly-discovered evidence in relation to a certain alleged anticipatory device known as the “Wood Signal Box.” In relation to this device the petition and affidavit show that the same was set up and was considered at the original hearing in (his court, and also at the hearing on appeal in the circuit court of appeals, and that the defense based upon it was overruled, not because it would not have been an anticipation, but because the proof of its existence and use was not sufficient. It was also further shown that, after these decisions, defendant discovered iliat. the Wood signal box had in fact been for a time in actual use for business purposes in Kansas City, Mo., long prior to the application for the patents in suit; that, before the original hearing in this court, defendant had received an information in regard to such use, and had written a letter to one of the officers of the company which was said to have had the Wood device in use at that place, inquiring into the matter, but had received an unsatisfactory and evasive reply, and that it again addressed a communication to him, but received no response; that it had subsequently discovered that the reason its investigations had come to naught was due to the machinations of complainant, which, it was alleged, had sent an agent to Kansas City, and had there discovered one of the signal boxes there used, and had taken the same into its possession, or of some person connected with it; that for the purpose of concealing it, and preventing the knowledge of its use from coining to defendant, tlie complainant, through its agent, paid, to the persons from whom the box was obtained, a retainer, and renewed the same until after the decisions in this court and in the circuir court of appeals; and that by reason thereof defendant was unable at an earlier date to discover the facts in regard to the use. in Kansas City.</p>

On Rehearing. This is a shit in equity by O. & A. Potts & Oo. against Prank P. Creager and others for alleged infringement of patents Nos. 322,393, issued July 14, 1885, and 368,898, issued August 23, 1887, both to O. and A. Potts, for improvements in clay disintegrating machines..

This was a bill in equity by the National Heeling-Machine Company and the Ross Heel Company against William T. Abbott for alleged infringement of letters patent No. 220,920, issued October 28, 1879, to Henry A. Henderson and Hollis C. Paine, for an improvement in heel-trimming machines.

<p>1. Patentable Invention — Connection of Old Devices.</p> <p>The connecting of two old devices, as the two vibrating wires of a double paper file, so as to operate simultaneously, involves no invention, when the operation and function of each in tlieir connected relation is the same as that performed by each when used alone. 65 Fed. 599, affirmed.</p> <p>2. Same.</p> <p>It requires no invention to apply a spring, previously used to hold in an open or closed position the vibrating wire of a single paper file, to the duplicate wires of a double paper file.</p> <p>3. Same — Limitation of Claim — Combination—Infringement.</p> <p>The Shannon patent, No. 21.7,907, for an improvement in devices foi filing papers, if valid at all, is limited to a combination containing the precise elements shown and described, or their mechanical equivalents, each for each. 65 Fed. 599, affirmed.</p>

This was a suit in equity by John Bose against Henry Hirsh, Otto J. Lang, Alfred C. Hirsh, William Hirsh, and E. M. Hirsh, trading as Hirsh & Bros., for alleged infringement of two patents to complainant for improvements in umbrella sticks and umbrella eases, respectively. The circuit court dismissed the bill (71 Fed. 881), and complainant appealed.

<p>In Admiralty.</p> <p>Label of information by William H. Drinker, United States attorney, alleging forfeiture to the United States of the schooner James G. Swan, her tackle, apparel, furniture, and cargo, by virtue of section 8 of the act of congress of April 6, 1891, entitled “An ad to give effect to the award rendered by the tribunal of arbitration, at Paris, under the treaty between the United States and Great: Britain concluded at, Washington, February twenty-ninth, eighteen hundred and ninety-two, for the purpose of submit ting to arbitration certain questions concerning the preservation of fur seals,” which reads as follows: “See. 8. Thai, except in the case of a master making a false statement under oath in violation of the provisions'of the fourth section of this act. every person guilty of a violation of the provisions of this act, or of Hie regulations made thereunder, shall for each offense he lined not less than two hundred dollars, or imprisoned not less than six months, or both; and all vessels, their tackle, apparel, furniture and cargo, at any time used or employed in violation of this act or of the regulations made thereunder, shall be forfeited to the United Stales,” — and alleging, as cause for forfeiture, that the schooner .lames G. Swan was, on the 5th day of August, 1898, found employed in killing and capturing fur seals in the waters of Behring Sea, within the limits of a zone of CO geographical miles surrounding the Pribilov Islands, in violation of the first section of said act, which reads as follows: “That no citizen of the United States, or person owing the duty of</p> <p>obedience to the laws or the treaties of the United Stales, nor any person belonging to or on hoard of a vessel of the United States, shall kill, capture, or pursue, at any time, or in any manner whatever, outside of territorial waters, any fur seal in the waters surrounding the Pribilov Islands within a zone of'sixty geographical miles (sixty to a degree of latitude) around said Island, exclusive of the territorial waters.” 28 Stat. 52-55. The owners of the vessel have appeared as claimants, and tiled an answer denying that the vessel was at any time employed in violation of law. The members of the crew have also intervened, and by their pleadings deny that any forfeiture has been incurred, and asserting innocence on their part of any intention to violate the law, and that, inasmuch as the law does not specifically declare a forfeiture of wages, they are entitled, in any event, to receive their wages out of the proceeds of a, sale of the vessel and cargo. The intervener Beninghausen claims to be the owner of the chronometer which was used in the navigation of the vessel, and prays for restoration thereof. Findings and decree for the United States.</p>

This was an admiralty suit in rem, originating with the filing of a libel by A. J. Taylor & Bro., the owners of the tug D. M. Key, against the steam dredge Morgan and its accompanying scows. Intervening libels were filed shortly afterwards by S. S. Saylor and others for services rendered in various capacities on board the dredge and scows, and by Tubman and others for supplies.

This was a suit by John Hutton against Joseph Bancroft & Sons Company and Victor G. Bloede. Defendant Bloede removed the suit from the court of chancery into this court, and complainant now moves to remand.

The character of this suit is shown by the following averments of the complaint: “The said plaintiff complains of said defendants, and for cause of acción alleges: That he, said plaintiff, and numerous other parties whom it is impracticable to bring before said court, and for whose benefit, as well as his own, he brings this action, are residents of and occupants of what is known as the ■Town of Lamar,’ in the county of Lincoln, state of Nevada.

This was a suit by the Municipal Signal Company, licensee, and James F. Oyster, assignee, to restrain the Camewell Fire-Alarm Telegraph Company and others from infringing letters patent No. 178,750, granted June 13, 1876, to Henry Kunis, for an improvement in telegraphic lire alarms.

<p>Revival op Action — Parties.</p> <p>By the will of A., his wife, B., was named as his sole executrix and legatee, but she failed to qualify as executrix, and soon afterwards died; N., as administrator of both B. and A., then brought suit for an accounting of the profits of a partnership in lottery shares between A. and defendants, which suit was abated by the death of N. Held, that A.’s representative should be made a party to a bill to revive by the administrator de bonis non of B., as the property had never vested in B.</p>

<p>This suit is brought by the district attorney and the attorney general of the United States against La Compagnie Francaise Des Cables Telegraph!ques, the United States & Hayti Telegraph & Cable Company, and the United States & Hayti Cable Company to prevent the defendants from laying and landing at Coney Island a telegraphic cable between this country and Hayti, without the consent of the government of the United States. Motion was made for a preliminary injunction upon bill and affidavits.</p>

<p>Equity Jurisdiction — Bill to Collect Stock Subscription — Lb&al Defense.</p> <p>Tbe fact that a resolution of the board of directors of a corporation under which a stockholder claims release from liability on his subscription is alleged to be fraudulent and void, will not give equity jurisdiction of a bill against the stockholder to collect the subscription. The invalidity of the resolution must he shown at law.</p>

<p>1. Equity Jurisdiction- — Money Demand.</p> <p>The courts of the United States sitting in equity have no jurisdiction to enforce a demand for money only, unless there be an acknowledged debt, or one established by a judgment rendered, accompanied by an interest in the debtor’s property or a lien thereon, created by contract or by some distinct legal proceeding.</p> <p>Ü. Mechanics’ Liens — Railroads.</p> <p>A railroad is not a building or structure, within the meaning of the South Carolina mechanics’ lien law, and is not subject to such liens.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee.</p> <p>This is an appeal from an order granting a preliminary injunction upon bill, answer, exhibits, and upon ex parte affidavits filed in support of the bill. The controversy involves the right of the complainant, J. Simpson Africa, who is engaged in the operation of an electric street railroad in the city of Knoxville, to extend his railroad, and occupy three unoccupied streets of said city with his track, poles, and attachments, and operate thereon an electric street railroad. His right to occupy the streets in question, Oak, Church, and Central avenue, is denied by the city, which has consented to the occupation of said streets by a rival company. The complainant is a citizen of Pennsylvania. At a mortgage foreclosure sale under a decree of the circuit court of the United States for the Eastern district of Tennessee, he became the purchaser of the street railroad formerly owned and operated by the Knoxville Electric Railway Company. That company was formed by the consolidation, under the Tennessee statute, of four Tennessee street-railway companies, each of which owned and operated street railroads in the city of Knoxville. By this consolidation the corporate property, powers, and franchises of each of the constituent companies passed to the Knoxville Electric Railway Company. Mill. & V. Code, §§ 1263-1269, inclusive. The mortgages foreclosed included all the property and franchises of the consolidated company, and Africa claims to have succeeded to the ownership of the said consolidated line of street railroad, and to all- of the street grants and franchises of each of the constituent companies, and to the franchises essential to the operation for tolls of a street railroad.</p> <p>The senior constituent company was the Knoxville Street-Railroad Company, a corporation organized January 7, 1876, under the .general corporation law of Tennessee. Mill. & Y. Code, §§ 1704, 1705; Id. §§ 1920-1925, inclusive. The articles of association filed by the Knoxville Street-Railroad Company-thus- described the termini and route of the street railroad which they proposed to construct: “Commencing at the intersection of Main and Gay streets in said town, and extending thence and over said Gay street to Jackson street; thence on and over said the same- to Broad street; thence on and over the same to the point of intersection with Crozier street; thence on and over Crozier to Vine street; thence on Vine to Gay; thence from same on and over Union street to Crooked; thence to Asylum; thence on same to Broad street; thence on same to its junction with Jackson street; and also extending along and over the portions of Crozier and Jackson streets not hereinbefore mentioned, and over Depot, White, Fifth avenue, Hardee, Mabry, Clinch, East Clinch, Asylum, Union, Prince, Locust, Crooked, Cumberland, Patton, Morgan, Park, Temperance, State, Hill, McGhee, Jackson, Bellevue, Florida, Fouche, Mill, Kennedy, and Main streets; and also extending on and- over all such other streets or extensions of streets as are now or may be hereafter opened or laid out in said city, to its corporate limits, and as much further, on all such roads leading into the corporate limits, as said company may find it desirable to use and operate.” On the'llth of January, 1876, an ordinance was passed by the council of the city of Knoxville, granting a right of way to the Knoxville Street-Railroad Company. By the first section it was ordained “that the right of way over and use of all the streets of said city * * * mentioned and described in the charter, of said company, and all other streets or extensions of streets, within the corporate limits, hereafter to be made, established, and opened, are hereby given and granted to the said Knoxville Street-Railroad Company; and also is granted "the further right to the said company to cut and level any of the streets, and to build on and over the same a lino of railways to be used under its charter; provided always that the said company, in the use of said streets, shall be governed and confined to the grade or grades fixed or to be fixed by the city.” By the seventh section the ordinance was declared to have all the force and effect of a written contract. Sections 8, 9, and 10 were as follows:</p> <p>“Sec. S. The rights and privileges herein granted are intended and understood to he and exist for and during the corporate existence of said company.</p> <p>“Sec. 9. The charter of said Knoxville Street-Railroad Company, mentioned in this ordinance, is that which bears the certificate of the secretary of state, and the great seal of the state of Tennessee, affixed on die 5th of January, 1870, and which is registered in Corporation Record Book A, pp. 200-201, in said secretary’s office, and in Book O, vel. ;>, pp. 155-159, in the register’s office of Knox county, Tennessee; and the said charter is to be taken and treated as a part hereof as fully as though heroin set out.</p> <p>“Sec. 10. Be it further ordained that all the privileges and immunities and exemptions in the ordinance given and granted shall be deemed to be withdrawn and revoked, and this ordinance repealed, if said company shall fail to complete its road track from Main street to Jackson street within nine months from the passage of this ordinance.”</p> <p>The route described from Main street to Jackson was completed within the time prescribed, and some extensions of that route were shortly thereafter constructed, though no effort was made to occupy the large number of streets mentioned and described in the ordinance, and not included by the route from Main to Jackson. On the 5th of July, 1892, the city council by an ordinance revoked the grant of January, 1870, as to all the streets not theretofore occupied. In August, 1895, the same council granted to the Citizens’ Railway Company a right of way upon a number of unoccupied streets of the city, including Oak, Church, and Central avenue, and over Gay street from Hill to Depot street This part of Gay street was already occupied by the double tracks of the complainant, and the ordinance granted a right of way over Gay street on condition that no additional track should be constructed thereon, — a condition which would compel the use of complainant’s tracks for a short distance, either as the result of an agreement with him or through condemnation proceedings.</p> <p>The pleadings and exhibits make it clear that both the complainant and the Citizens’ Street-Railway Company were preparing to occupy the streets in controversy, and that each Intended to construct a line of railroad upon those streets. That the activity of the complainant was mainly due to the well-understood purpose of its rival Is equally apparent. Complainant was assorting a right to consliuct a railroad on those streets upon the ground that the ordinance of 1876 granted a right of way to the old Knoxville Street-Railroad Company upon and over every street then existing or thereafter laid out, and that he had succeeded to that right. The Citizens’ Railway Company claimed under the grant to it of 1895, and denied that the complainant had any authority to occupy the streets in question. Neither claimed any exclusive right, but, as the streets were narrow and the grants conflicting, first occupancy was deemed of great importance. Under this slate of conflicting claims, the complainant, on the night of September 29, 1895, after or about midnight, entered upon Oak and Church streets and Central avenue with a large force of hands, and proceeded to la.y down its track and plant its poles at no less than live different points, and succeeded in constructing at each point a fragment of railroad track. The following day the city of Knoxville filed a bill in the chancery court of the state against the complainant and his associates and servants, and obtained a. preliminary injunction restraining complainant from proceeding with the construction of its said railroad. Being thus checkmated, the eompla inant resorlod to the United States circuit court, and there filed the present bill, making both the city of Knoxville and the Citizens’ Railway Company defendsnls. The object of ihis bill was to enjoin the city and the Citizens’ Railway Company from removing the track and poles so clandestinely placed upon the controverted streets; the ground upon which this relief is sought being that his right is valid under the ordinance of 1876, and that the city had threatened to remove by force the fragments of road so constructed, and that like threats had been made by tlio railway company. These short and detached fragments of road so placed on said streets seem to bo regarded as monuments marking priority of occupancy, and as such being deemed of a value not to be adequately measured by the rude machinery of a law court. This bill was answered under, oath. An application for an injunction was argued and elaborately considered by Judge Clark, who, being of the opinion that complainant was vested with a contract right to enter upon and occupy any and all of the streets of Knoxville by virtue of the ordinance of 1876, granted an injunction according to the prayer of'the bill. From this order allowing an injunction an appeal has been perfected under the seventh section of the court of appeals act of March 3, 1891.</p>

<p>Petition for Leave to File a Bill of Beview.</p>

<p>Equity — Cross Bill — Usury.</p> <p>Where the defendant in a bill to foreclose a mortgage given to secure a note pleads usury as a defense, be may set up, by cross, bill, a claim, under Rev. St § 1391, for double the amount of interest he has paid'complainant.</p>

This was a suit in equity by the New York Security & Trust Company against the Lincoln Street-Railway Company and others for the foreclosure of a mortgage. A supplemental bill was filed, and defendant’s demurrer thereto was overruled. 74 Fed. 67. Subsequently a plea and answer were filed, and the complainant then obtained leave to file an amended supplemental bill, to which the defendant has also demurred.

<p>1. Mortgages — After-Acquired Property — Conditional Sales.</p> <p>Wliere chattels are sold, under an agreement that the title shall not pass until full payment, and are delivered to the purchaser after he lias made a mortgage covering after-acquired property, of which mortgage the vendor has constructive notice through its record, the vendor’s lien on such chattels for their price will prevail, as against the mortgagee, provided such chattels are separate and distinct personalty, and do not become part of the real estate mortgaged; but if, with.the consent of the vendor, implied by his knowledge of the mortgage, such chattels become a part of the realty, they are subject to the lien of the mortgage.</p> <p>%. Conditional Sales — Fixtures.</p> <p>A stipulation in a contract for the sale of chattels that they shall not become or be deemed part of any real estate cannot alter, as against one not a party to such contract, the legal effect of what may afterwards tbe done with such chattels.</p>

<p>1. Accommodation Paper — Eights of Purchasers.</p> <p>Accommodation paper is put into circulation for tbe purpose of giving credit to the party for whose benefit it is intended, and, although be cannot maintain an action upon it against the accommodation maker or indorser, a purchaser can do so, who acquires it %vhile still current, and gives the credit it was intended to promote, although with knowledge of its original character.</p> <p>2. Same — Holders for Value.</p> <p>One who takes accommodation paper from the party for whose benefit It was made, and gives him credit for the same on a precedent indebtedness, though advancing no money, is a holder of such paper for value.</p>

<p>'Will. — Construction.</p> <p>A devise “to my son M., and to his children,” vests in M. only a life estate, and in his children living at the testator’s death an estate in remainder, whi'eli will open to let in after-horn children of M.</p>

<p>Master and Servant — Who is a Fellow Servant.</p> <p>A foreman having charge of, and personally assisting, a gang of laborers employed on one of several buildings being erected by, and under the supervision of, a general contractor, is a fellow servant with such laborers.</p>

<p>1. Account — Action on — Pleading—Demand of Copy — Admission of Evidence.</p> <p>Under section 179 of the South Carolina Code of Procedure, providing that a party need not set out In a pleading the items of an account sued on, but shall, upon demand, deliver a copy of the account, a defendant who has omitted to demand a copy of an account, sued on generally, has no right to object to the plaintiff's proving the several sums constituting the full amount demanded.</p> <p>2. Sales — Analysis of Samples — Proof of Custom.</p> <p>Where a contract for the sale of merchandise provides for taking samples from the cargo, which are to be kept until the completion of discharge, and then sent to a chemist for analysis, and that the cargo is to be taken from the vessel’s tackles by the buyer, who is to be responsible for any demurrage arising from failure.to do so, a custom of the trade to permit the buyer to take and deal with the merchandise, before the analysis has shown whether or not it conforms to the contract, does not contradict such contract; and it is not error to permit proof of such custom, in an action involving the contract.</p> <p>8. Factors — Del Credere Commissions — Analysis of Samples — Defective Quality.</p> <p>W. & G., acting for the A. Co. on del credere commission, sold a cargo of phosphate rock, for which they made advances to the A. Co., according to their contract, but permitted the buyer to take possession before the analysis had dt tc-rmined whether or not rlie rock was a good delivery, and without making any payment on account of the price. The analysis showed that the rock was not a good delivery, and after negotiations, in which they acted in good faith, and according to their best Judgment, W. & G. settled with the buyer, by allowing him a deduction from the price. Reid, that W. & G. were not bound, for the purpose of putting the A. Co. in a more advantageous position, to insist, on tlie buyer’s acceptance of the rock which the analysis had shown to be defective, and were not liable to the A. Co. for failing to exact payment in advance, but the A. Co. were liable to make W. & G. whole.</p> <p>4. Same — Del Oredeke Commissions — Purchase to Fill Contracts.</p> <p>When an agent, acting on del credere commission, has procured, from other sources, a part of the merchandise necessary to till a contract which he has made for Ids principal, but which the principal Is unable wholly to fulfill, he is entitled to commissions from the principal on the whole amount of merchandise contracted for.</p> <p>5. Same — Procuring Release from Contract — Commissions.</p> <p>When an agent, acting on del credere commission, has procured for his principal a eontiacf, which such principal is unable to fulfill, and has procured a release of such contract, he is entitled to a proportionate share of his agreed commissions.</p>

This was an action at law by Ida M. Baker, guardian, etc., against thé'Hew York Life Insurance Company, to recover upon a policy of insurance upon the life of Ward L. Baker.

This was an action upon a contract, and was brought by William M. Forest and Patrick McCadden, trading under the firm name and style of Forest & Co., against the St. Francis Levee District of Missouri, a corporation. The case was heard on demurrer to the amended complaint.

<p>This was an action by Charles Gibson against the Connecticut: Fire Insurance Company on a policy of insurance. There was a verdict for plaintiff, and defendant moves for a new trial.</p>

This was a proceeding by mandamus to compel tbe levy of a tax to pay a judgment which was recovered by John W. Stryker, the plaintiff in… Held: the petitioner, by his attorneys, addressed, by mail, to the defendant, in the care of its clerk, a peremptory demand that it levy or cause to be- levied a special tax on the taxable property of said county for the purpose of paying and discharging said judgment, which said demand was laid before the defendant at its first meeting…

<p>Judgments on County Warrants — Tax Levy.</p> <p>A board of county commissioners is not required, by section 8 of the Colorado statute of March 24, 1877 (Laws Colo. 1877, p. 219), nor by the statute of April 28, 1887 (Laws Colo. 1887, p. 240), to levy a special tax to pay a judgment against it, founded upon warrants for customary county expenses, but, at most, to make its levy for such expenses equal to the full amount permitted by law, so long as such debts remain unpaid. Sanborn, (Jircuit Judge, dissenting.</p>

Petition for writ of habeas corpus, filed by Lazarus E. Lebolt, of the city of Chicago, for his release, being detained under a fine imposed under a city ordinance taxing drummers. Relator discharged.

<p>In the Matter of the Application of Louis Greenwald for a Writ, of Habeas Corpus.</p>

On habeas corpus aud certiorari to review action of Commissioner Joseph L. Fairchild in holding the petitioner for extradition to Canada on the charge of murder.

This was an appeal by the government from á decision of the board of general appraisers reversing the decision of the collector of the port of New York as to the valuation of certain ivory buttons imported from Austria, by Kuautli, Nachod & Kuhne. The goods wore exported in three invoices, one of June 20, 1892, and two of July 5, 18D2. They were all entered July 22, 1892.

<p>Customs Duties — Classification—Embroidered Cloves.</p> <p>Gloves, having two rows of single-cord embroidery, between three lines or points of the material, raised up and sewed through and through, are not dutiable, under paragraph 4.58 of the tariff act of 1890, as “embroidered gloves with more than three single strands or cords.”</p>

<p>1. Customs Duties — Invoice—Correction or Valuation.</p> <p>Although the statement, in an invoice, of the value of merchandise at a certain sum per ton, “on trucks,” shows that something not dutiable may be included in the price, it does not show any value less than that stated, since it does not show how much is to bo taken out for nondutiable items; and such statement of the price is not such a manifest clerical error as entitles the importer to a correction on a new invoice.</p> <p>2. Same.</p> <p>There can be no issue between the invoice value of merchandise and any value below.</p>

<p>This was an appeal by Dodge & Olcott from a decision of the board of general appraisers, sustaining the classification, by the collector of the port of New York, of certain merchandise imported by them. The merchandise was invoiced as “camphor refuse,” and appeared to be known as such, or as “liquid camphor refuse,” being a liquid which drips from the crude camphor, and from which an essential oil, known as “camphor oil,” is made, but from which no refined camphor is obtained. The collector classified it under paragraph 60 of the tariff act of 1894, as an oil. The importers claimed that it should be free, under paragraph 429 or under paragraph 470, as a drug, gum, gum resin, or otherwise, or under paragraph 558, as a vegetable substance, or, if dutiable at all, dutiable only under paragraph 10| or paragraph 16-£.</p>

<p>This was an appeal by Semon Hache & Co. from a decision of the board of general appraisers sustaining the classification, by the collector of the port of New York, of certain window glass imported by them. The collector classified the glass as cylinder, -crown, or common window glass, dutiable under paragraph 112 of the tariff act of 1890, and subject to the additional duty of 10 per cent, imposed by paragraph 118. The importers protested, on the ground that the glass should have been classified, according to size, under paragraph 112 only, or at 45 per cent, ad valorem, under paragraph 122, and that paragraph 118 did not apply, because none of the processes therein referred to had been applied to it after it became window glass.</p>

<p>These were two appeals by Bartram Bros, from decisions of the board of general appraisers affirming the assessment of dnty by the collector of the port of New York upon certain hags, coverings of sugar, imported by the appellants, and claimed by them to be entitled to free entry, under paragraph 387 of the tariff act of 1894, as bags of American manufacture, exported empty, and returned filled with foreign produce. The collector rejected this claim, on the ground that the fact was not proved in accordance with the treasury regulations of 1892. The third appeal was by the government from a decision in a like case, sustaining the sufficiency of the proof.</p>

<p>1. Customs Duties — Classification—Giass Beads.</p> <p>Glass beads, strung, and glass ornaments, similar to beads, but without holes for stringing, are dutiable as manufactures of glass, under paragraph 108 oí the tariff act of 1890, and not under paragraph 445, as glass beads, loose, unthreaded or unstrung.</p> <p>2. Same — Imitations oe Pearls.</p> <p>Imitations of pearls, consisting of hollow glass beads with wax inserted, giving an appearance like pearls, strung, and not capable of being set, are dutiable as manufactures of glass, under paragraph 108 of the tariff act of 1890, and not under paragraph 454, as “imitations of precious stones, composed of paste or glass, not set.”</p>

<p>This was an appeal by H. E. Erankenburg from a decision of the board of general appraisers sustaining the refusal of the collector of the port of New York to entertain a protest against the liquidation of duties on certain merchandise, imported by the appellant, on the ground that notice of such protest was given too late.</p>

This was an appeal by the government from a decision of the board of general appraisers, reversing the decision of the collector of the port of New York as to the classification of certain merchandise, imported by Schulze, Berge & Koechl. The merchandise was invoiced as “Blood Serum — Diphtheria Remedy,” and it was shown to he an agent for the prevention and cure of diphtheria, produced from the blood of horses by treatment with the diphtheria poison.

This was an appeal by Stern, Leerberger & Stern from a decision of tbe board of general appraisers, sustaining tbe refusal of the collector of the port of New York to entertain the protest of the importers against a reliquidation óf duties. The importations were made at various dates in 1891 and 1892.

<p>Customs Duties — Deficiency in Quantity.</p> <p>A 'report by the assistant appraiser that, upon examination of certain imported merchandise, he found a deficiency in the quantity called for by the invoice, is proper and sufficient evidence on which to base an allowance for such deficiency in estimating the duties.</p>

This was an application in behalf of the United States to review a decision of the hoard of general appraisers holding that certain asphaltum imported by the Trinidad Asphalt Company was entitled to be entered free of duty.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action at law by Schuyler Mackie against Joel B. Erhardt, late collector of the port of New York, to recover back an alleged excess of duties paid under protest on certain importations, made during the summer of 1889, of the so-called “Thompson’s Patent Prune Wine.” The collector classified the same as an “alcoholic compound,” and assessed the duty at the rate of two dollars per gallon for the alcohol contained therein, and 25 per cent, ad valorem under Schedule A (Tariff Index, New, par. 103) of the act of March 3, 1883, which reads as follows:</p> <p>“108. Alcoholic compounds, not otherwise specially enumerated or provided for, two dollars per gallon for the alcohol contained and 25 per centum ad valorem.”</p> <p>Against this classification the plaintiff duly protested, claiming the importations to be dutiable under tlie provisions of section 2513, Kev. St. U. S., as amended by the tariff act of March 3, 1883, at 20 per cent, ad valorem, as a nonenumerated manufactured article. The importer duly appealed to the secretary of the treasury, who affirmed the assessment of duty by the collector. From the testimony of the manufacturer, taken by deposition, it appeared that the prune wine in question was manufactured in Dublin, Ireland, by crushing raisins and prunes in water, allowing the resulting compound to ferment, drawing the liquid into casks, and depositing the same in bonded warehouse, where a certain amount of alcohol was added to the mixture by the British excise or customs officers at the cost of and on behalf of the manufacturer; that about 6 per cent, of alcohol was evolved by the fermentation of the raisins and prunes, and that this amount, together with the alcohol added by the British excise officers, was necessary to prevent the compound from further fermenting and becoming sour and unmerchantable; that the prune wine would not be a salable article without the presence of the alcohol contained therein. It also appeared from the testimony that the liquor was never used as a beverage in the nature of wine, but was employed exclusively in mellowing and aging whiskies and other liquors. On the trial it was proved by the chemist’s reports furnished to the appraiser that the amount of alcohol contained in the merchandise as imported varied between M.6 per cent, and 16.28 per cent, by weight, and by volume between 18.9 and 20 per cent. The court held that the collector’s classification was correct, and directed a verdict for defendant. See 59 Fed. 771. The plaintiff brought error.</p>

This was a suit in equity by the Imperial Chemical Manufacturing Company against Joachim Stein and others for alleged infringement of letters patent No. 305,057, for a process and compound for dyeing hair. The circuit court sustained the patent, found infringement, and granted an injunction,'hut refused an accounting on the ground of laches in bringing the suit. 69 Fed. 616. Complainants appeal from the part of the decree refusing an accounting.

<p>Assignment of Patents — Sale by Beceiver in Proceedings Supplementary to Execution.</p> <p>Defendant, in writing, transferred to a firm certain patents, but, by inadvertence, one patent included in the agreement was omitted from the writing. All the rights acquired under the agreement were assigned by the firm to one N. Afterwards a receiver of the property and effects of N. was duly appointed by a state court, in proceedings supplementary to execution, under the New York Code. The receiver, by order of court, sold the debtor’s interest in the omitted patent, and the purchaser transferred the same to defendant. Held, that the equitable title held by N. passed by this sale, and a subsequent assignment thereof by him passed no interest whatever. 72 Fed.-777, reversed.</p>

This case, which comes up for hearing upon pleadings and proofs, is a suit in equity tó enjoin infringement of certain letters patent of the United States.

Tills is a bill in equity alleging infringement of patent No. 272,304, issued February 13, 1883, to the complainant, Conrad Muller, for what, the inventor desorilles as a new and improved tool holder for lathes.

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This is a bill in equity, filed under section 4915, Rev. St. U. S. It involves a question of priority of invention bet ween Charles S. Hisey, who has assigned his invention to the complainant the Standard Cartridge Company, and George Ligowsky, who has assigned the same invention to the Peters Cartridge Company. Hisey first constructed an organized machine, embodying the invention now in controversy, and first filed an application for a patent thereon. Before file patent office had acted upon the matter, ligowsky filed his application for a patent upon the same novel improvements claimed by Hisey. An interference was declared upon certain claims embraced in each application. The issues upon this interference were as follows: “First. In a cartridge loading machine, the combination, with shell loading devices, of an endless belt, band, or carrier suitably actuated, said belt, band, or carrier being provided with shell cases secured thereto, and projecting therefrom. Second. In a cartridge loading machine, tlie combination, with an endless belt, band, or carrier provided wilh shell cases secured thereto, and projecting therefrom, of loading and ejective devices arranged and located over, above, and in line with said endless belt, band, or carrier, and mechanism for giving the carrier intermittent motion, and for operating the loading and ejecting devices. Third. In a cartridge loading machine, the combination, with an endless belt, band, or carrier provided with shell cases secured thereto, and projecting therefrom, of a shell delivery device located in the path of the carrier.” Much evidence was taken upon the questions of priority thus put in issue. The examiner of interferences decided the issues in favor of Ligowsky. Upon an appeal to the examiner in chief, the decision of the examiner of interferences was reversed, and priority awarded to Hisey. From this an appeal was taken to the commissioner, who again awarded priority of invention to Ligowsky, and reversed the decision of the examiner in chief. In accordance with this judgment, a patent was issued to Ligowsky’s assignee, the Peters Cartridge Company. That patent is dated December 8, 1891, and is numbered 464,883. To reverse this action of the department, and to have Charles S. Hisey declared the only and first inventor of the improvements patented to the assignee of Ligowsky,.is the object of this suit. The entire record upon the interference issue in the patent office, together with the opinions filed upon the several and independent hearings accorded upon the interference issues, was, by stipulation, filed in the circuit court, and made part of the record. Both parties took additional evidence, and, upon a record thus made up of more than 3,300 printed pages, the cause was heard in the court below by the Honorable George R. Sage, district judge, who again awarded priority of invention to Ligowsky. In an opinion found in the transcript sent to this court, that able and experienced patent judge said: “The opinion of this court, after having heard the arguments of counsel, examined their briefs and the record, and considered the whole case, is that, independently of the rule as to the burden of proof, the decision of the commissioner of patents is right, that Ligowsky was the inventor, and that the attempt of Hisey to appropriate the invention was fraudulent.” 69 Fed. 408. In accordance with this conclusion, the bill of the complainants was dismissed. From .this decree an appeal has been perfected, and errors assigned.</p>

<p>Shipping — Injury to Passenger — Burden of Proof.</p> <p>The law imposes upon carriers of passengers the duty of exercising a high degree of care for their safely, and, in particular, of seeing that all openings in the decks of vessels, upon which passengers are permitted to walk, are securely closed or guarded; and, where a passenger is injured by the giving way of the cover of an opening in the deck, it is incumbent upon the owner of the vessel to show, affirmatively, that there was no fault or negligence on the part of the officers and crew, causing the injury.</p>

<p>Removal op Causes — Delay in Piling Copy oe Record.</p> <p>Failure to file a copy of the record on or before the first day of the session next after the order of the state court that it proceed no further, etc., does not deprive the federal court of jurisdiction, and it will not remand the case when satisfied that the delay was due to the erroneous belief that the district was divided into divisions, and that defendants had the right to file the record at the next session held in the place most convenient to them, — the failure not having caused any delay in the trial.</p>

This was a bill by the city of Lincoln against the Lincoln StreetBailway Company and others. The cause was removed into this court from the district court of Lancaster county, Neb., and is now heard on motion to remand.

This was a creditors’ bill by the First National Bank of Chicago against William Steinway & Sons and others. The cause was heard on demurrer to the bill.

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>This was an action by (he 'Wheeler-Bliss Manufacturing Company against Thomas F. Picldnnn. The plaintiff obtained a verdict for $1,500, and a motion for a new trial was denied. 69 Fed. 419. Defendant brings error.</p>

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

<p>1, Federal Jurisdiction — Revivor of Judgment — Scire Facias.</p> <p>Scire facias to revive a judgment in a federal court being an ancillary proceeding, the court has jurisdiction, even though the parties are citizens of the ■ame state.</p> <p>2. Same — Pending of Suit in State Court.</p> <p>The fact that one is suing in a state court upon a judgment of a federal court will not prevent him from proceeding at the same time in the federal court to revive the judgment by scire facias.</p> <p>3. Revivor of Judgment — Scire Facias — General Denial.</p> <p>A general denial of each and every allegation of the writ not admitted in the answer is a form of defense, not permitted in scire facias to revive a judgment.</p>

<p>These were intervening petitions by Drausin Wulsin and Jeptha Garrard, in the receivership suit brought by Samuel Thomas against the Cincinnati, New Orleans & Texas Pacific Railway Company.</p>

<p>Newman, Northrup & Levinson and Smith, EJelmer, Moulton & Price, for unsecured creditors.</p>

in tin1 matter of the intervening petition of Axel Ohytraus and O. -M. Carson. On the appeal of the Equitable Trust Company.

<p>Equity — Reverencie to Master — Master’s Findings.</p> <p>When a reference to a master has been made upon motion of one of the parties, and not by agreement of both, the master’s finding has not the force of a verdict, or of the report of a referee; and, on exceptions thereto, the court must determine by its own judgment the controversy presented, and on appeal the reviewing court has tlie same power and responsibility.</p>

<p>Equity — Jorisd.-ctioii— Statute of Limitations — Ignorance of Legal Rights.</p> <p>The fact that orie claiming ihe legal title to land alleged to have been patented to the heirs at law of her father has lived for many years in a wild and remote region, by reason of which she was ignorant of the issuance of the patent and the sale of the land by tlie administrator of her father’s estate, does not entitle her, after her right to maintain ejectment has become barred, to relief in equity against the purchaser at the administrator’s sale.</p>

The original bill was filed by Marshall Ayers, assignee of Sawyer, Wallace & Co., and by his assignors, ¿gainst Michael W. Manning, Cliarles Carroll, and others, to determine conflicting claims and interests in certain lands. The appellant, Manning, filed a cross bill, to which all parties to the suit were made respondents, asserting and seeking to enforce an interest in the lands by virtue of contracts with Sawyer, Wallace & Co., to whom the lands had belonged.

<p>1. Petition of Intervention — Amendment.</p> <p>While a petition of intervention need not he as formal as a bill of complaint, yet it should exhibit all the material facts relied on, embodying, by recital or reference, so much of the record in the original suit as is essential; and proceeding's taken therein, after the filing of the petition, which would fortify the right of the intervener, should be incorporated in the petition by amendment, and, if this is not done, such proceedings cannot be noticed on a demurrer to tlie petition.</p> <p>2. Receivers — Adoption of Leases — Orders oe Court.</p> <p>' A receiver does not become liable upon the covenants of a lease because of his position as receiver, but only by virtue of an election to adopt the lease, if he sees fit. to make such election; and even if the lessee is solvent, and whatever the rights of the lessor against him or against his estate in the hands of the court, the lessor cannot force upon the receiver the adoption of the lease. Accordingly held, that when the receiver of a corporation had been instructed by the court, at his own request, to abandon a lease to such corporation, the fact that such corporation was really solvent afforded no reason for disregarding such order and directing the receiver to assume the lease.</p> <p>3. Same — Petition fob Payment of Claims.</p> <p>A petition asking that a receiver be directed to pay a claim, without dislinctiy alleging that he has funds in his hands properly applicable thereto, is insufficient.</p>

<p>Following Trust Fund — Limitation of Rule.</p> <p>The rule permitting the owner o£ a fund, Which lias been misappropriated by one who held it. in trust or for a specific purpose, to follow the trust property in the hands of the trustee, or of a receiver, in case of insolvency, does not extend beyond permitting such owner to pursue the fund in kind, or in specific property into which it has been converted, or, if the fund has been mingled with the trustee’s other property, to establish a charge on the mass of such property for the amount of such fund, and it does not give to the owner of such fund any rights, in preference to other creditors of the trustee, in property into which the trust fund has in no way entered. Bank v. Latimer, 67 Fed. 27, reaffirmed.</p>

<p>1. Pleading — Demurrer—Evidence.</p> <p>An answer, in a suit on cerlnin notes, alleging that they wei'e delivered under an agreement that they might be renewed at maturity, is not demurrable, on the ground that such agreement is not contained in the notes., The court cannot assume that the defendant will roly on oral evidence to support the defense.</p> <p>2. Same — Action on Notes — Agreement for Renewal.</p> <p>The fact that notes, alleged to have been delivered under an agreement that they might be renewed at maturity, have not been so renewed, is no defense to an action thereon, where there is no allegation of notice by the defendant of his election to renew.</p> <p>3. Same — Agreement to Deliver Stock.</p> <p>An answer alleging that the notes sued on were made in consideration of plaintiff’s agreement to deliver to defendant certain shares of stock, and that such shares have not been delivered or tendered, but not alleging that the delivery was to be made prior to the payment of the notes, does not allege a breach of the agreement, and is, therefore, demurrable.</p>

<p>1. Verdtct — Record on Appeal — Bill of Exceptions.</p> <p>Whether a verdict he general or special, a hill of exceptions is not necessary to make it a part of the record. Its proper place is in the docket entry showing its return.</p> <p>2. Special Verdict — Form and Contents.</p> <p>A special verdict, whether constructed in the form of answers to interrogatories or otherwise, should slate all the facts essential to the determination of the issues of the case as made by the pleadings, though some of the facts may not have been actually disputed; and it should not be accompanied by a general verdict.</p> <p>3. Same. '</p> <p>In determining the force of a special verdict or finding, only the facts found, unmodified by the statements of counsel, or by reference to the evidence, can be considered; and the silence of the verdict in respect to a fact is equivalent to an express finding against the party who has the burden of proof.</p> <p>4. Guaranty — Interpretation.</p> <p>One D. guarantied the payment by the firm of I). & R. for all goods bought by them from the P. Co. A receiver of the P. Co. was afterwards appointed, who sold goods to D. & R. Held, that such sales were not within the scope of D.’s guaranty.</p>

<p>Upon Demurrer to Complaint.</p>

<p>1. Railroad Compartes — Bight op Way — Adverse Possession — Contract Void under Statute op Frauds.</p> <p>In 1850, one S. made a verbal contract with a railway company to give it a right of way over his land if the company would establish a depot at a certain point on such land. The railroad was built on the land, and the depot established and maintained for 30 years, during which also the railway company, and another company with which it was consolidated, and which succeeded to its rights, continued to use the track built on S.’s land in the usual manner, without controversy or dispute as to their right. Held, that the contract between S. and the railway company being void under tbe statute of frauds, and tbe right of action to recover the right of way occupied by the railway company, or its value, having accrued at once, the railway company’s possession during the 30 years had been adverse, and it had acquired, by limitation and prescription, the right to an easement in the land.</p> <p>2. Same — Agreement to Build Depot — Abandonment.</p> <p>At the end of the 30 years, the depot was abandoned, for reasons connected with the company’s interests and the public convenience. Held, that the contract between R. and the railway company, even if valid, did not bind the railway company to keep up the depot forever, but that maintaining- it for 30 years, and until the company’s interests and public convenience required its abandonment, was a substantial compliance with the terms of the contract</p>

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

<p>■ 1. Federal Prisoners in State Jails — Keeping and Subsistence — State Statute.</p> <p>Tbe Montana statute provides that persons may be committed under authority of the United States to any jail in the state “upon payment of the expenses of supporting such prisoners, ten dollars per month to the county, for the use of the jail, and all legal fees to the jailer.” Held, that this means $10 per month for all the prisoners so confined, and not $10 per month for each one of them.</p> <p>2. Same — Effect of State Statutes.</p> <p>A state statute authorizing the use of county jails for the confinement of United States prisoners on certain terms as to charges and fees is not binding on the United States, as, by Rev. St. § 5547, the keeping and subsistence of such prisoners is made a matter of contract, under the control of the attorney general.</p>

<p>Custom Duties — Classification—Tapioca Flour.</p> <p>Tapioca flour is not dutiable under paragraph 323 of Act Oct. 1, 1890, as a “preparation * * * fit for use as starch,” hut belongs to the free, list as “tapioca,” under paragraph 730. Townsend v. U. ¡3., 5 C. C. A. 488, 56 Fed. 222, followed.</p>

These were three suits brought by the Steel Glad Bath Company against Mayor, Lane & Go., and against Samuel Davison, and against Peck Bros. & Go., respectively, for alleged infringement of a patent for an improved bath-tub. Final hearing in equity. . The issues in these actions being the same they were tried and argued together. The complainant is the owner of letters patent No. 458,995, granted to George Booth, September 8, T891, for an improved bath-tub.

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

This was a libel by Charles Clarke and Robert P. Clarke against the steamship Elfrida (Pyman, Bell & Co., claimants) to enforce a contract for salvage compensation. The district court rendered a decree for the libelants in the sum claimed, and the claimants appealed.

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

<p>1. Appeal — Service of Citation — Acceptance by Attorney.</p> <p>A general acceptance of service of a citation upon appeal by an attorney is good for all the parties whom he represents of record, though he signs the admission as solicitor for only some of such parties, without naming others.</p> <p>3. Same — Waiver.</p> <p>A party named in a citation on appeal, who joins in a motion to dismiss such appeal because the decree is not final, thereby waives service of the citation.</p> <p>3. Same — Assignments of Error — Review.</p> <p>A question which, though not presented by an explicit specification of error, so underlies other questions that a complete and final disposition of the case would be impossible without deciding it, is sufficiently presented by the record to permit its decision by an appellate court.</p> <p>4. Mortgage of Franchise.</p> <p>Though it is not affirmed as a general rule that a mortgage of a franchise will include tangible property as an incident, the terms of the franchise here in question, and the evident intent of the parties, give such effect to the mortgage in this case.</p> <p>5.'Mortgage Foreclosure — Collateral Attack.</p> <p>A sale and conveyance of property, under a decree of foreclosure, cannot be collaterally attacked, in a subsequent suit in the nature of a creditors’ bill, to which the mortgagees, with others, are parties, on the ground that they are invalid because of the failure of the decree of foreclosure to comply with a statute concerning the time of sale.</p> <p>& Ins Pendens — Mortgage Sam — Mechanics’ Liens. ' :'</p> <p>The doctrine of lis pendens does not apply to the case of one who, pending suits for the foreclosure of mechanics’ liens on real property, buys in the property at auction, at a sale under his foreclosure of a mortgage made to, him prior to the commencement of the lienholders’ suits, because his title upon such purchase relates back to the date of his mortgage.</p> <p>7. Corporations — Denial op Corporate Existence — Estoppel.</p> <p>The legal existence and power to act of a corporation, whose existence de facto has never been questioned, cannot be disputed by parties who derive their only standing in court to ma.ke the objection through the assertion that, on contracts with such corporation, they have recovered and hold an unsatisfied judgment against it.</p> <p>8. Circuit Court oe Appeals — Cbrtifioavion or Questions to Supreme Court.</p> <p>The circuit court of appeals will not certify tlie questions in a case to the supreme court, except before it decides them, and upon its own motion.</p>

<p>1. Final Appealable Decrees — Reference to Master.</p> <p>An order, upon an intervening petition presenting a claim against an insolvent estate, which refers such claim tó a master, though it purports also to ■ sustain a demurrer to the petition as to part of the relief sought, is not final, and so not appealable.</p> <p>2. .Insolvency — Claim of Preference — Pleading. ' -</p> <p>Tiie' question of the right to a preference for a claim against an insolvent estate cannot be raised by demurrer to a petition presenting such claim and asserting a preference.</p>

<p>This was a suit in equity by A. Ferris Smith against Patrick J. Lee and others to compel a transfer of certain corporate stock, and for an accounting of dividends received (hereon. The cause was heard ou demurrers to the bill.</p>

<p>These were two suits brought respectively by the Westerly Waterworks and the Seamen’s Friend Society and others against the town of Westerly. The causes were heard on motions to dissolve the temporary injunctions heretofore granted. See 75 Fed. 181.</p>

<p>Res Jtjdtcata — Ejectment— Dkeecti ve Deed.</p> <p>Certain land having been sold by the United States marshal under a judgment in a proceeding of scire facias sur mortgage, and an action of ejectment, brought by the purchaser at the marshal's sale, having been decided in her favor after a vigorous defense, the defendant in such ejectment filed her bill against the plaintiff to restrain the enforcement of the judgment in that ae- ’ tion, and to set aside the marshal’s deed, because in making the sale the marshal had failed to comply with ¡he act of March ,‘5. 18!>.’5, to regulate marshals' sales, both parties having been ignorant, of that act when the ejectment was tried. Held, that the technical defect in the title of the plaintiff' in the ejectment having been equally available as a defense, in that action, the point was res judicata between the parties, and could not now be made the basis of equitable relief.</p>

On January 9, 1889, the Central Trust Company instituted a suit in the United States circuit court for the Northern district of Alabama, against the Sheffield & Birmingham Coal, Iron & Railway Oomxmny, for the. foreclosure of two deeds of Trusts and mortgage.

<p>Deeds — Presumption of Delivery — Grantee’s Possession.</p> <p>The presumption of delivery, arising from the grantee's possession of a deed, and from the probable intent ion of the grantor that it should have some effect, is not overcome by indefinite evidence, on behalf of the grantor, that it was never delivered; such evidence presenting also inconsistencies with some of the circumstances.</p>

<p>Injunction against State Officers — Equity Jurisdiction — Building and Loan Associations.</p> <p>Complainant, a building and loan association, alleged, in its bill, that a statute oí the state of Montana relative to the business of such associations imposed such oppressive and unjust restrictions that it could not comply with them; that it had ceased to transact new business in the state, and was only holding its securities, already taken from residents of the state, and collecting payments as they fell due; that the officials of the state had notified it in writing that it was required to comply with the terms of the act, and, if it failed to do so, proceedings would be taken against it to enforce certain fines and penalties, and a receiver of its property would lie applied for; and thereupon complainant sought to enjoin the state officials from such action. Held, that the bill showed no right to the equitable relief sought, since it was not positively alleged that the complainant had failed to do the acts, failure to do which would subject it to penalties under the act, nor that there would be a multiplicity of suits to enforce such penalties, and since the invalidity of the act, if it contravened the eons i ¡tul ion of (lie United States, would lie a defense to actions to enforce such penalties, and any ground of equitable relief would be equally available as a defense in proceedings to appoint a receiver.</p>

In the Revised Statutes of Illinois (Starr & O. Ann. St.) are found the following provisions: Chapter 72, concerning insolvent debtors, approved April 10, 1872, in force July 1, 1872: “Sec. 2.

<p>Railroad Companies — Accident at Crossing — Contributory Negligence — Question por Jury.</p> <p>Plaintiff was engaged, with a wagon and team of oXen, in delivering railroad • ties at a point on the line of defendant’s railroad. He had unloaded a quan- • tity of ties, and was returning for another load, by 9 road crossing the railroad tracks. From a point about 180 feet from jhe crossing, he had a view up the track for 400 yards from the crossing-, and, looking and listening at this point, he did not see or hear any train. Between this point and the crossing, the view of the track was obstructed until within 12 or 10 feet of the crossing. Plaintiff was familiar with the locality and with the signals given by trains, and he rode towards the crossing, seated on the reach of the wagon, which rattled some, and did not stop to listen again, but relied on the usual signal being given by any train that might approach the crossing. When he reached a point about 12 feet from the track, he saw a train coming, at about 20 miles an hour, lie then jumped from his seat, and ran to the heads of his oxen, which was his only means of stopping them, and, while he was trying to do so, the oxen were struck by the train, and thrown upon plaintiff, who was injured. The evidence as to whether the engine whistled for the crossing at the usual point, 500 yards away, which would have given plaintiff time to stop, was conflicting. Held, that plaintiff’s failure to stop, and listen for a train, between his starting point and the crossing, was not conclusive evidence of contributory negligence, but the question was for the jury. Sanborn, Circuit Judge, dissenting-.</p>

This was an action oh several promissory notes made by George W. Price, a citizen of Pennsylvania, payable to Catharine J. Knapp, a citizen of the same state, and indorsed by George W. Barr, the defendant, also a citizen of Pennsylvania, and subsequently transferred by indorsement of Oatharino J. Knapp to her brother-in-law Robert W. Skinner, the plaintiff, a citizen ;of New Jersey. On the trial, before DALLAS, Circuit Judge, the plaintiff gave in evidence the notes.

<p>On Rehearing: For prior report, see 22 C. O. A. 47, 76 Fed. 34.</p>

This was an action against the United states, prosecuted under the Act March 3. 1887, c. 359 (24 Stat. 505).

This was.an appeal by Dan Talmage’s Sons from a decision of the board of .general appraisers sustaining the classification by the collector of the port of New York of certain rice imported by the appellants.

This was a suit in equity by Marenms J. Goodenough and others against Benjamin H. Cary and others for alleged infringement of a " patent for an improvement in lacing studs.

<p>L Patents — Invention—Paper-Box Machines.</p> <p>In a machine for forming paper-box blanks, there is no invention in merely-providing grooves in the counter-die to co-operate with the embossing rules of the die for creasing the fold line of the box blank.</p> <p>8. Bame.</p> <p>The Munson patent, No. 259,416, for improvements in the manufacture of paper boxes, consisting, particularly, in the formation of the dies for cutting out and creasing the box blanks, is void for want of invention.</p>

<p>Patents — Invention—Improvement in Checks, Bto.</p> <p>The Berry patent, No. 2(58,988, for an improvement in checks or other papers representing value, and consisting in providing them with marginal tables of figures, to be torn off, so as to prevent raising or altering ol the amount, is void for want of invention, in view- of the prior state ot the art.</p>

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

This was a suit in equity by the Singer Manufacturing Company against Allen Schenck, president of the New Home Sewing-Machine Company, for alleged infringement of a patent. The circuit court rendered a decree in favor of complainant (68 Fed. 191), and defendant has appealed.

This was a suit in equity by F. E. Kohler and others against the George Worthington Oompany and others for alleged infringement of a paient for a currycomb.

This was an action in personam by Benjamin Hudson and others against K. J. Whitmire to recover compensation for salving timber found adrift on Pensacola Bay. The cause was heard on exceptions to the libel.

This was a hill in equity, under Rev. St. § 4915, by Alfred L. Bernardin against William H. Northall and John S. Seymour, commissioner of patents, to review the decision of the commissioner in an interference case, and determine the complainant’s alleged right to a patent for a bottle-sealing device.

<p>Equity — Interlocutory Decree — Setting Aside.</p> <p>A motion to set aside an interlocutory decree will be denied, if based only on grounds considered on tlie bearing.</p>

This was a suit by scire facias upon a mortgage, and was brought by the Mutual Life Insurance Company of New York against George S. Doherty. The case was heard below upon exceptions filed by William Rogers and Thomas J. Rogers, subsequent judgment creditors, to the marshal’s return of his d istribution of the fund, and such exceptions were overruled and the distribution confirmed. 75 Fed. 951. The exceptants have appealed.

<p>Corporations — Dissolution—Abatement or Suits.</p> <p>Under the statute of Oregon (Hill’s Ann. Daws, § 3233), providing that corporations, after their dissolution, shall continue to exist for five years, -for the purpose of prosecuting or defending suits, etc., a corporation, at the expiration of such live years, becomes absolutely defunct, and a suit, commenced by it before its dissolution, abates.</p>

<p>1. Pleading — Demurrer—Waiver op Irregularities.</p> <p>A general demurrer waives objection that the plea, is not verified, nor supported by certificate of counsel, as required by the rules of court.</p> <p>B. Abate Mfnt — ■ Pendency op Another Action-Law and Equity.</p> <p>Suits at law and in equity are necessarily so dissimilar that, as a rule, one cannot be pleaded in abatement of the other.</p> <p>8. Same — Sufficiency of Plea.</p> <p>A plea alleging the pendency of another action, which does not show with certainty that such action is for the same cause, and the same or similar relief, is insufficient.</p>

<p>Fire Insurance — Goods in Transit — Termination of Risk.</p> <p>. Defendant, in insuring oil for inland transportation, issued a marine policy with a rider attached. In the piinted clause, providing that the risk should begin from the time of loading the goods on “said vessel,” and continue until they were “safely landed,” the blanks for place of loading and landing were not filled. The rider stated that the insurance was “on oil in tank cars, in transit.” Meld, that the risk terminated upon delivery of the oil by placing the cars upon consignee’s private siding, at its refinery.</p>

<p>Official Bond — Liability of Sureties — Misfeasance priok to the Execution of the Bond.</p> <p>The sureties on a nostmaster’s bond are not Jiable for a shortage in his accounts occurring before the bond was given.</p>

<p>1. Witnesses — Exclusion of a Witness Who is a Party — Objection.</p> <p>An objection to tbe action of a referee in excluding from tbe room, during tbe examination of other witnesses, a witness wbo is a party to tbe suit, comes too late after tbe evidence so taken bas been filed, and tbe cause set down for bearing, without any attempt by tbe objecting party to have tbe error corrected.</p> <p>2. Evidence — Books as Entries — Competency.</p> <p>For tbe purpose only of corroborating tbe testimony of a witness as to tbe dates of certain transactions, his books, though not proved as required by statute for admission as books of account, are competent as entries claimed to have been made when such transactions occurred.</p>

<p>This was a libel in rein by Mary J. McCaffrey against the steam tug Yandercoolc to recover damages for a collision. The hearing was of an application of the marshal for an order to compel the libelant to make a deposit or give bond to cover fees and expenses of keeping.</p>

<p>Tarii’j? Act 1S90 — Velvet Ribbons — -Duty.</p> <p>Velvet ribbons are dutiable as “manufactures ox silk,” under paragraph 414, Act 1890, and not as “velvets, plushes,” etc., under paragraph 411.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This is an appeal from a final decree of the circuit court of the North era district of New York dismissing' the bill of complaint. The suit was brought by the complainant, an Illinois corporation, against the defendant, a New York corporation, to restrain unfair competi1 ion in business. The subject of complaint is the use by defendant in its business of what is alleged to be a fraudulent form of package.</p>

Suit by the Philadelphia Creamery Supply Company and others against the Davis & Rankin Building & Manufacturing Company and others to restrain the alleged infringement of a patent.

<p>1. Patents — BrsoiaiMHB--Broadening Claim.</p> <p>An element of a combination claim cannot be eliminated by a disclaimer, so as to broaden tlie claim, or make it rest on other elements than those on which it was predicated when issued.</p> <p>2. Same — Improvement in Brewing.</p> <p>The Gent patent, No. 202,761, for an improvement in the art of brewing malt liquors, held not infringed.</p>

This was a suit by Charles P. Rogers and others against Benjamin Fitch and others for alleged infringement of a patent for a mattress.

This was a bill in equity by William Schwarzwaelder & Co. against the city of Detroit and others for alleged infringement of a patent re-la ting to folding chairs.

This was a bill in equity by Napoleon W. Williames and Warren Webster against Charles W. McNeely & Co. for alleged infringement of letters patent No. 250,089, granted April 4, 1882, to complainant Williames, for an improvement in steam-heating apparatus for buildings.' The patent contained seven claims, of which only the first and third were sued upon. These claims were held valid and infringed, and the cause was referred to a master for an accounting. 64 Fed. 766.

<p>this was an action at law by Augustus G. Davis against the Chesapeake & Potomac Telephone Company of Baltimore City, for alleged infringement of a ^patent for electrical switch pins. By agreement, the case was tried to the court, without a jury.</p>

This was a suit in equity by the New York Filter Manufacturing Company against the Niagara Falls Waterworks Company for alleged infringement of a patent for an improved method of filtration. The cause was heard on a motion for a preliminary injunction.

<p>Admiralty Jurisdiction — State Statutes — Lien tor Wrongful Death.</p> <p>A state statute giving a right of suit in rem to the personal representative of a person whose death is caused by the wrongful act of a vessel (Code Va. § 2902) creates a lien, and may he enforced by a libel in rem in the federal court, when the injury occurs in waters of the state navigable from the sea.</p>

Libel oí information to condemn and forfeit tbe American schooner Jane Gray, her tackle, apparel, furniture, boats, and cargo, consisting of 257 fur-seal skins, 30 bags of salt, 16 spear poles,- and 34 spear heads, for a violation of section 1 of the act of April 6, 1894, as amended by the act of April 24, 1894, in killing and pursuing seals in the waters surrounding the Pribilov Islands, within a zone of 60 geographical miles around said islands.

<p>Appeal from the District Court of the United States for the District of Minnesota.</p> <p>These are appeals from decrees dismissing libels against the appellee, the Philadelphia & Reading Coal & Iron Company, for damages for the detention of vessels during the strike of 1894. Each of the appellants filed a libel against the appellee in the court below to recover damages for the detention of one of its steamships for a, period' of 12 days during that strike. The appellant the Empire Transportation Company alleged, in its libel, that on June 30, 1894, the appellee chartered its steamship, the W. H. Gilbert, to transport a cargo of coal owned by the appellee from Buffalo, in the state of New York, to West Superior, in the state of Wisconsin; that the ship arrived at West Superior, loaded, on July 4, 1894; that the appellee commenced to unload her on the next day, but ceased on that day, before she was unloaded, and did not complete the unloading, or discharge her, until July 17, 1894; that the usual and sufficient time to discharge such a cargo, at the docks of West Superior, was 2 days; that she was detained 12 days longer than was necessary or reasonably required for her discharge; and that the damage to the libelant was $200 per day. The appellant the Mitchell Steamship Company alleged, in its libel, that the appellee chartered its steamship, tlie W. H. Gratwick No. 2, for the same purpose, on July 6, 1894, that tlie vessel arrived at West Superior with its load on July 10, and that it was detained until July 24, 1894, before it was unloaded. In other respects it made the same allegations as were made by the Empire Transportation Company. The contracts of affreightment of the two vessels were identical in terms, and were attached to the libels. They were simple bills of lading, which contained no stipulation of any kind with reference to the time of unloading or discharging the vessels, but merely provided that the owners of the steamships should deliver the coal at West Superior, in good condition, upon the payment by the appellee of 25 cents per not ton, free of handling. The answers of the appellee to these libels were that, without ans- fault or negligence on its part, its employes struck, and refused to work, on July 6, 1894, without any previous warning of their intention so to do; (hat the appellee immediately hired other workmen to take their places, and used reasonable diligence to reorganize its working force, and to unload these vessels; but that the strikers organized into a body, and by violence and intimidation prevented some of the men it hired from working for it, scared away others after they commenced to work, and rendered the appellee powerless to discharge the steamships sooner than it did. The court below held that these allegations were true, that they constituted a good defense to the libels under the law, and entitled the appellee to decrees of dismissal. Such decrees were accordingly entered, and are now presented to this court for review.</p>

<p>1. Removal or Causes — Diverse Citizenship — Formal Parties — Surety on Bond.</p> <p>The Arkansas statute requires insurance companies doing business in the state to give a bond to tbe state auditor, conditioned for the prompt payment of losses, and provides that, in suits to recover a loss accruing under a policy, tbe sureties may be made defendants, and final judgment rendered against them at the same time and in the same manner as against the company. Acts 1891, c. 36, as amended by Acts 1893, e. 91. Held that, in an action on such bond by a citizen of Arkansas against an insurance company of another state and a surety who is a citizen of Arkansas, the surety cannot he regarded as a merely formal party, and the action is therefore not removable to a federal court.</p> <p>2. Same — Separable Controversy.</p> <p>In an action against a principal and his surety on a bond, note, or other obligation, there is no separable controversy, such as will entitle one of the defendants to remove the case when he and plaintiff are citizens of different states.</p>

<p>1. Appeal — Temporary Injunction — Discretion oe Court.</p> <p>Whether a temporary injunction shall be granted or refused, or, having been granted, shall be dissolved or modified, is always a matter of sound discretion, concerning which the decision of the circuit court will not be reversed on appeal, unless error and probable injury are manifest.</p> <p>2. Same.</p> <p>Complainants filed their bill in ihe circuit court to restrain the prosecution of a creditors’ bill, pending in the same court against one T., against whom a judgment had been obtained as guarantor of the complainants’ notes; T. having neglected, as complainants alleged, to interpose a defense to the notes, of winch complainants advised him, and which they had offered to assist in maintaining, notwithstanding which complainants felt bound to reimburee T. for what should be found justly due. A temporary Injunction was granted, restraining the prosecution of the suit, and afterwards dissolved, on the filing of the defendants’ answer denying the allegations of the bill. Held that, without regard to the answer the case was not one calling for the interference of the appellate court.</p>

On Bill and Plea. Herman Duden was, prior to 1878, engaged in the business of lace-making in different parts of the world under various titles and with several associates. There were at different, times firms known as Duden & Co., of Brussels, Duden & Co., of New York, and Duden & Co., of Williamsbridge.

<p>1. Mortgages — Future-Acquired Proper','! — Intention.</p> <p>That a mortgage may cover future-acquired property of the mortgagor, an unmistakable intention to that effect must appear frem the face of the instrument.</p> <p>¡¡. Same — Property Purchased with Proceeds of Mortgage.</p> <p>A manufacturing company, to raise funds with which to buy the plant and business of another company, gave s mortgage on certain described land and all buildings, .machinery, and other property generally, “thereon or elsewhere erected or located, the whole constituting the plant of the said mortgagor.” Sold, that the mortgage covered only the property owned by the company at the date of the mortgage.</p> <p>Such a mortgage will not cover p -operty not a part of the “plant” cf the mortgagor, but forming an independent business in another city, though owned by the mortgagor at the date of the mortgage.</p> <p>t!. Same — Manufacturing Plant — Property not Included in.</p>

<p>Interstate Commerce Law — Interstate Carriers.</p> <p>A railroad company whose line is wholly within a single state, and which, although it carries freight destined to points beyond such state, never issues bills of lading to points beyond its own line, receives no freight on through bills of lading, and has no arrangement with other roads for a conventional division .of charges, or for a common control or management, is not within the purview of the interstate commerce act or of the supplemental act of August 7, 1888. Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 16: Sup. Ct. 700, 162 U. S. 184, distinguished.</p>

<p>1. Superintendent op Mint — Loss op Bullion — Bondsmen.</p> <p>' The obligation of a superintendent of a mint and of his bondsmen, under Rev. St. § 3506, and a bond conditioned upon his faithfully and diligently discharging all the duties of his office according to law, is to keep safely, until legally withdrawn, all bullion for the use of the mint; and such superintendent and his bondsmen are responsible for the loss of bullion which he has received, and which he cannot produce, though it has been lost or stolen without any negligence or fault on his part. 73 Fed. 616, affirmed.</p> <p>2. Same — Assumption op Opfioe — Receipt por Bullion.</p> <p>When the superintendent of a mint, on assuming office, has receipted for a certain quantity of bullion, the saíne is thereafter in his custody, though it was not actually counted or weighed by him, but was locked and sealed up in a cage in the mint, under the certificate as to its amount of a mint inspector by whom it had previously been weighed and counted, upon the faith of which certificate the superintendent recointed fpr it, and though one of the keys of such cage, without which it could not be opened, is deposited in the bureau of the mints, at Washington, and the other is not- actually delivered to the superintendent by his predecessor.</p> <p>3. Same — Failure to Weigh and Count — Neglect op Director op Mint.</p> <p>A failure by the director of the mint to observe a rule prescribing that he shall, at the .annual settlement, require the weighing and counting of all bullion in the mint, does not relieve a superintendent of a mint of his responsibility for bullion in his custody.</p> <p>4. Same — Evidence—Receipts and Admissions.</p> <p>A receipt given by a superintendent of a mint for a certain quantity of bullion, and his admissions in reports and accounts that he holds it, are at least prima facie evidence that it came into his possession; and, in an action against him to recover the value of bullion which he cannot jjroduce, evidence which shows only that it might have been removed before he assumed office is not sufficient to require submission to the jury of the question whether he ever really received it.</p>

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

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

<p>1. National Bank — Contract by — Authority of Cashier — Pleading—Proof.</p> <p>Under an allegation that the guaranty sued on was executed by the defendant bank in the name of its cashier, and that such cashier was authorized by a general usage to bind the bank to similar contracts, the plaintiff may prove any competent authority to the cashier, and is not, restricted to proof of usage.</p> <p>2. Samb — Contract of Indemnity — Public Policy.</p> <p>A contract by a national bank to indemnify one for loss incurred as surety on an attachment bond is not void on the ground of public policy, the loss hav- , ing occurred, though the bond is not given for the benefit of the bank.</p>

<p>Insurance — Renewals—Payment of Premium — Agents Giving Credit.</p> <p>When an insurance company has forwarded to its agent a renewal receipt, and has charged him with the premium represented thereby, — such being their usual course of dealing, — and the agent has countersigned the receipt, and delivered it to tlie policy holder, the policy is continued in force, according to the terms of the receipt, though the premium is not in fact paid to the agent.</p>

<p>Internal Revenue Laws — Stamps on Spirits — F( rkettures.</p> <p>Merely tacking a piece of newspaper over the stamped end of a barrel Of distilled spirits is no ground of forfeiture under the internal revenue laws (Rev. St. §§ 3289, 3322, 3445, 3456) and the regulations of the internal revenue department.</p>

<p>1. Copyrights — Photograph—Infringement—Penalty.</p> <p>The provision of Rev. St. U. S. § 4965, that any one who unlawfully copies, prints, publishes, or imports a copyrighted photograph shall forfeit to the proprietor one dollar for every sheet thereof “found in his possession,” applies only to sheets shown to have been in fact discovered in the defendant’s possession prior to the bringing of the suit.</p> <p>9. Sam’! — Notice of Copyright — Sufficiency.</p> <p>The words, “Copyright 93, by Bolles, Brooklyn,” printed on the face of a photograph, are sufficient as the notice of copyright required by Rev. St. U. S. § 4962, especially where it is not shown that there is another photographer of the name of “Bolles.”</p> <p>8. Same — Question for Jury.</p> <p>. Whether the copyright notice on a photograph is sufficiently legible is a question for the jury.</p> <p>4. Same — Originality.</p> <p>Whether a photograph is an original work of art, or a mere manual reproduction of subject-matter, is a question of fact.</p>

This was a bill in equity by (he Cerealine Manufacturing Company against Hervey Bates and Ilervey Bates, Jr., for alleged infringement of a patent for a food product from corn. This is a suit to restrain the alleged infringement of letters patent No. 223,847, dated January 27, 1880, granted to Joseph E. Gent, assignor to himself and GafE, Gent, and Thomas, for improved alimentary products from corn.

This was a suit in equity by the Campbell Printing-Press Company against Benedict Prieth and others, to restrain the nse of a machine alleged to be an infringement of a patent relating to print-' ing presses. The cause was heard upon an application for an injunction pendente lite.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit in equity by John H. Volkmann against Hermann Dohnhoff for alleged infringement of a patent for a vending machine. The circuit court dismissed the bill, and the complainant has appealed.</p>

Tn Equity. Bill for tin injunction by tlie Bowers Dredging Company, Alphonzo B. Bowers, and John B. Brown, against the New York Dredging Company and certain employés and agents of said company, to restrain the defendants from infringing United States patent No. 318,859, for a dredging machine, granted to Alphonzo B. Bowers. The cause was heard upon the complainants’ application for an injunction pendente lite.

This was a suit in equity by the II. W. Johns Manufacturing Company against Henry M. ítobertson and George T. Sinclair for infringement of a patent for an asbestus rope steam packing. The circuit court dismissed the bill, bolding that the claim sued on must be so limited by reference to the specifications as to avoid infringement, and, if not so limited, that it was anticipated. 60 Fed. 900. The complainant has appealed.

This was a suit in equity by the American Pneumatic Tool Company against the Bigelow Company for alleged infringement of a patent for a pneumatic drilling tool. The defendant has appealed from an order of the circuit court granting a preliminary injunction.

This was a suit in equity by the Shaw Electric Crane Company against Henry R. Worthington, an incorporated company, and others, for alleged infringement of a patent relating to electric traveling cranes.

This was a libel in rein by Thomas Mulvana against the steamship Aneboria to recover damages for personal injuries to a passenger.

This was a libel iryrem by Mai com Ramsey and others against the barge Pohatcong to recover compensation for alleged salvage serv-” ices.

<p>Seamen — Shipping Articles — Discharge beeore Yoyage Began — Rev. St. § 4587— Wages Allowed.</p> <p>Seamen who have signed shipping articles for a foreign voyage on a steamship, and in pursuance of the articles have presented themselves for the service of the ship several times, and are finally discharged before the commencement of the voyage in consequence of an accident to the steam pipe which renders their discharge proper, may recover compensation in rem under section 4527 of the Revised Statutes for the period of the voyage, not exceeding the one month specified in t he statute.</p>

<p>Tug and Tow — Mooring in Exposed Peace — Duty to Watch foe Changes of Wind.</p> <p>The tug G., having in tow a scow to he taken to sea, and being obliged to put back on the approach of a southeast gale, moored the tow outside of Atlantic Basin, which was safe from a southeasterly gale, but unsafe in high westerly winds. During the night I be wind shifted to the westward, and the libelant’s boat was damaged by pounding: Held, that the tug was in fault either for not taking the tow inside ¡.he basin, or else for not maintaining a sufficient watch during the night, with help at hand sufficient to remove the tow in time to prevent damage, upon any change of wind to the westward, which was a change to he reasonably anticipated.</p>

<p>Collision — Fog—Rounding Pollock Rip Lightship — Long Tow — Dangkrous Navigation without Signals prom Tow--Both in Fault.</p> <p>The barge Shamokin, the second barge in tow behind the tug International, each on a long hawser of 70 or 80 fathoms, when proceeding to the eastward through Vineyard Sound in dense fog, was struck by the steamer H. M. Whitney coming westward at a point about east from the Pollock Rip lightship and sank soon after. The tug and steamer as they approached gave proper whistles for passing, each to the left. The tug was seen as she went past about 200 feet distant; the first barge, 500 feet astern, was passed considerably nearer. No further signal was heard indicating any other barge behind the first, and no hawser was seen: the Whitney, after a few moments waiting, went on to round the lightship, and in a few moments the Shamokin was seen crossing the Whitney's bow from port "to starboard, when it was too late to avoid collision. Such tows have long been common in that region, wilh even more boats in tow. The course in rounding Pollock Rip lightship changes about 5% points; and it was necessary for boats meeting in that vicinitj-, in fog, to keep within the range of the lightship’s signals. The steamer’s officers supposed that 1lie tug and her tow were proceeding upon a course opposite 1o their own, and parallel with it. This was not so, because on the exchange of the first signals the steamer and the tug both star-boarded; and this mistake largely contributed to the collision, held: (1) That the steamer was in fault for not noticing by her nearer approach to the first barge that she was crossing the line of the tug and tow, and also for not waiting longer, as more 1han one tow was quite frequent; (2) that the tug was in fault for dangerous navigation around Pollock Rip lightship with such ' a tow, in so dense a. fog without signals from the tow; and that it was her duty either to come to anchor in a safe place before rounding, as she might have done, or else to provide for signals from the tow while rounding Pollock Rip lightship to give notice of the position of the tow in fog.</p>

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

<p>These are appeals from decrees of the circuit court, Northern district of New York, dismissing complainant’s bills. The suits were for alleged infringement of letters patent of the United States No. 423,200, issued March 11, 1891, to Charles G. Ahvaxd, for a transplanting machine.</p>

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

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

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