Volume 87 — Federal Reporter

This action was brought by Anna E. Garr against Kansas City, Mo., the Barber Asphalt Paving Company, and others, to recover for personal injuries resulting from a fall on a sidewalk. The Barber Asphalt Paving Company removed the cause into the federal court, and it is now heard on motion to remand.

Upon June 1, 1892, the Gate City Electric, Street-Railway Company (which is hereinafter called the “Street-Railway Company”) duly executed, upon its entire street-railway plant and property, situated in the city of Keokuk, Iowa, its certain trust deed, in favor of the plaintiff, herein, the Central Trust Company of New York (which is hereinafter called the “Trust Company”), to secure the payment of bonds issued by said Street-Railway Company, of the face value of $85,000,…

This case comes up on demurrer to a bill filed by the Commonwealth Title Insurance and Trust Company, charging that the defendant, Samuel Bell, clerk of the circuit court for the Eastern district of Pennsylvania, wrongfully denies to its representatives access to the indices, records, and papers of his office.

<p>1. Taxation op Railroad Property — Valuation—Return—Estoppel—Evidence.</p> <p>The return by a railroad company of a valuation of a pari, of its properly to the board of equalization does not constitute an estoppel, in an aggregate valuation of the whole property, made up in part by county assessors, but is nevertheless competent evidence of the value of such part of the property, to be considered in arriving at the valuation to be placed upon the whole property for the purpose of fixing rates of transportation.</p> <p>2. Proceedings of Railroad Commissioners — Reduction of Rates — Intention ob’ Commissioners.</p> <p>In a suit to enjoin the board of railroad commissioners from enforcing resolutions alleged to have been adopfed reducing rates of transportation, the court will consider what the board did in reference to the disposition of such resolutions, but not what it or its members intended or threatened to do.</p>

<p>1. Equity — Jurisdiction.</p> <p>A bill in equity against mortgagees for compensation of a trustee in foreclosing- the mortgage, and for costs and attorneys’ fees, under a contract of indemnity, may lx: maintainable as to the costs and attorneys’ fees even if the mortgagees are not liable for the trustee’s compensation.</p> <p>2, Demurrer — Questions Considered.</p> <p>On demurrer to a bill by a trustee under a mortgage for attorneys’ fees and costs, which were allowed in the foreclosure suit, the question whether or not the adjudication as to the aitcrneys’ fees was an allowance only against the mortgaged property, or whether it was a personal liability against the trustee, will not he considered where that case is not a part of the bill.</p> <p>8. Contract or Indemnity — Equity Jurisdiction.</p> <p>A majority of the bondholders directed the trustee, under the mortgage securing the bonds, to declare them matured, and foreclose the mortgage, and, in accordance with a provision in the mortgage, agreed “1o indemnify and hold harmless the said trustee from any loss or damage on account of costs, counsel fees, or ether exxxaises of such litigation under this request.” Eeld, that a court of equity has Jurisdiction to enforce the contract of indemnity by requiring the bondholders to pity costs and attorneys’ fees for which the trustee became liable, though it had not yet paid the same.</p>

<p>Agent of Seller and Buyer —Agent’s Knowledge — Effect on Buyer’s Title.</p> <p>An agent and director of a trust company sold a mortgage belonging to the company to one for whom he sometimes acted as agent in similar transactions, and who was depending on his judgment as to the safety of the investment. Field, that the agent’s knowledge of defects in the title should not be imputed to the purchaser.</p>

<p>1. Attorneys — Compensation—Amount—Expert Testimony.</p> <p>Where it is the custom ior attorneys to take cases on a contingent basis, paying expenses themselves, and to add a percentage to their normal charges to cover the consequent risk oi’ loss, the court, in determining the amount which it will allow as attorney’s fees in a, particular ease, should consider, expert testimony in the light of the.fact that no such risk exists under the circumstances.</p> <p>3. Same — Test Cases — Apportionment.</p> <p>Where there are a number of eases, all presenting practically the same questions of law and fact, and certain ones are selected for trial as test cases, the amount allowed by the court to attorneys, for disbursements and professional services in the preparation and trial of such test cases, should be charged pro rata against the whole number of cases, since all are benefited. equally by such services.</p>

<p>1. Condemnation Proceedings — Instructions—Damages.</p> <p>In a proceeding by the government to condemn lands for a boat railway along tiie Dalles of the Columbia river, defendant requested an instruction that when the government takes Land it takes the fee simple, and the premises would never revert to defendant even if the work should bo abandoned. Held, that this instruction was irrelevant, (1) because the character of the use did not admit of an inference that it might, be abandoned, and the jury must be presumed to base its award on the demands of the complaint, which wore for the fee; and (2) because, even on the theory of a possible abandonment, the fact, that the fee would remain in the United States would not damage the defendant, since the land itself was of merely nominal value, and the damages sought were for interference with fishing rights.</p> <p>2. Same — Province of Jury — Estimates of Witnesses.</p> <p>Where the estimates of witnesses as to the value of property taken differ very widely, and the jury themselves view the premises, it is proper to refuse an instruction that they cannot disregard the tesfimony of the witnesses, and base tlieir verdict on mere conjectures of their own, unsupported by the evidence, as such instructions are liable to mislead the jury into supposing that they must not rely on their own. opinions.</p> <p>8. Same — Conditions of Condemnation — Instructions.</p> <p>It is not proper to submit to the jury instructions to determine whether the government can comply with a condition on which its proposed condemnation of land is sought, and authorize them to award damages in advance as for a failure.</p> <p>4. Same — Extent of Recovery.</p> <p>The owner of land sought to be condemned cannot recover for the value of the land belonging to a railroad company’s right of way across a portion of it.</p> <p>5. Same — Inadequate Damages — Passion and Prejudice of Jury.</p> <p>Of seven witnesses no two agreed as to the amount of damages to the land affected, their estimates ranging from $5,000 to $175,000. The jury viewed the premises under an order of the court, and awarded $9,000. Held, that the damages were sufficient, and the jury was not influenced by passion or prejudice.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>On July 19, 1883, John K. Carleton, the appellee, exhibited his bill of complaint against John L. Pendery, Luther M. Goddard, Charles I. Thomson, and Daniel Sayer, the appellants, and against .Tames Armstrong, George W. Melville, L. R. Tucker, William S. Ward, and the Portland Mining Company, in the circuit court of the United States for the district of Colorado. The ease stated by the bill was as follows: Prior to the 3d day of January, 1881, the complainant was the owner of an undivided n/32 of a mining claim known as the “Portland Lode,” situated in the county of Lake, state of Colorado. George S. Coryell and Edmund H. Watson each owned an undivided ]4 interest in said claim, James E. Puller Vs 2 thereof, and the.defendant John L. Pendery an undivided 1/3 2- In. the month of January, 1881, John L. Pendery, Luther M. Goddard, George W. Melville, Charles l. Thomson, and Daniel Sayer formed a corporation known as the Portland Mining Company, under the laws of the state of Colorado, for the purpose of acquiring title to the aforesaid mining claim; the capital stock of said corporation being $1,000,000, divided into 10,000 shares, of the par value of $100 each. The parties last above named, to wit, Pendery, Goddard, Melville, Thomson and Sayer, together with James Armstrong and L. R. Tucker, became the board of directors of said corporation for the first year. At. a meeting held by said board on March 29,1881, Pendery was elected president, Goddard, vice president, Armstrong, secretary, and Thomson, treasurer, of said company. At said meeting a resolution was passed by the board to the effect that the owners of the Portland lode, should receive Ve of % of the capital stock of said company, as a consideration for the conveyance of their respective interests in said property to the corporation, each owner to receive such a share of the stock as would be in proportion to his interest in said Portland lode, — and that Ve of the remaining ys of the capital stock be reserved as a fund for the purpose of working and developing the property. On May G, 1881, Carleton,, the complainant below, who was the owner of an undivided 11/3 2 of the mining claim aforesaid, was induced to convey his interest in the property to the mining company aforesaid, which had just been formed, by its promise and agreement that it would issue and deliver to him 11/32 °f °/e of i/¿ of its capital stock, to wit, 1,430 shares, of the par value of $100 each. When such conveyance was made, the complainant was at Portland, Me., and the deed conveying his interest was there executed, and transmitted to the Portland Mining Company at its office in Leadville, Colo. On receipt of the conveyance by the mining company, it was duly recorded. The mining company failed to deliver to the complainant any of its stock pursuant to the aforesaid agreement. On May 12, 1882, the mining company conveyed the property in question to the defendant William S. Ward. The bill charged that no consideration was paid by William S. Ward to the Portland Mining Company for the conveyance last aforesaid, and that said conveyance was made in pursuance of a conspiracy between Pendery, Goddard, Thomson, Armstrong, Sayer, Tucker, Melville, and Ward to deprive the complainant, Carleton, of his interest in the Portland lode, and of his share of the capital stock of said mining company. It also averred that, when Ward acquired title to the aforesaid property, he was well aware that the complainant had been the owner of an undivided 1 Vs2 the property before its conveyance to the mining company, and was well aware of the agreement by virtue of which the complainant had been induced to convey his interest to said mining company, and that the consideration promised him for so doing, to wit, n/s 2 of Ve of % of the capital stock of the company, had not been paid or delivered. In view of the premises the bill prayed that the aforesaid conveyance from the Portland Mining Company to said Ward might be set aside, and the title to .the lode restored to the Portland Mining Company; that the defendants Pendery, Goddard, Thomson, Armstrong, Sayer, Tucker, Melville, and Ward, as directors of said mining company, might be required to issue and deliver to the complainant such portion of the capital stock of said company as he was entitled to under the aforesaid agreement; and that, if such relief was not deemed adequate, the Portland Mining Company might be required to convey to the complainant his interest in said lode, so as to vest him with tire title to n/a2 thereof, as fully and completely as if no conveyance had theretofore been made by him to said mining company.</p> <p>Answers were filed to the aforesaid bill, testimony was taken, and at a hearing had on June 21, 1890, it was adjudged by the circuit court that the bill of complaint be dismissed as against the defendant William S. Ward, but that the complainant below have leave to amend his bill as against the other defendants at any time within 30 days thereafter, and that the defendants other than said William S. Ward be required to answer the averments of such amended bill within 30 days after the service of a copy thereof. Pursuant to such order, an amended bill was filed on July lit, 1890. The amended bill differed from the original bill in the following respects; that is to say: It charged that the Portland lode had been sold by the mining company to the defendant William S. Ward about May 13, 1882, for the sum of $30,000. It omitted the allegations made in the original bill which tended to show that Ward had acted fraudulently, and conceded, in effect, that said Ward was a purchaser of the property for value, and in good faith. It charged that the other defendants, to wit, Pendery, Goddard, Thomson, Armstrong, Sayer, Tucker, and Melville, had managed to disjtose of the greater portion of the capital stock of iho Portland Mining Company, and had wrongfully appropriated to their own use the moneys which were received from the sale thereof, and that b,v their mismanagement of the corporate affairs they had utterly destroyed the value of the mining company’s stock. It also charged that the defendants last aforesaid had failed to account, to the complainant for his share of the capital stock of the Portland Mining Company, and had not paid to him his portion of the same which was received from the sale of the property to the defendant Ward, and that they had appropriated to their own use moneys to which the complainant was entitled by reason of the agreement of the mining company to issue to him V32 of ®/<s of Vs. of its capital stock. ■ The prayer of the amended bill was, in substance, as follows: That the defendants be required to show what sum they had received for and on behalf of the Portland Mining Company, from all sources; in what manner they had expended the same; and that after such accounting they be adjudged and required to pay to the complainant his proportion of the moneys to which he was entitled as the owner of an interest in said property, and as the equitable owner of the capital stock of the company, to the extent heretofore stated; and that the complainant have such other and further relief as to equity and good conscience might seem proper.</p> <p>The defendants Charles I. Thomson and Daniel Sayer, who are appellants here, joined in an answer to the amended bill of complaint, which answer, after admitting the organization of the Portland Mining Company, and several other allegations contained in the amended bill, stated, in substance, the following facts: That said defendants were partners engaged in the practice of law under the firm name of Thomson & Sayer, and prior to January, 1881, had rendered certain legal services l'or and on behalf of the original owners of the Portland lode, on account ol' -which services they had become entitled to an undivided % interest in said lode; that upon the organization of the Portland Mining Company their right to the aforesaid interest In the lode was duly recognized by the mining- company, whose directors passed a resolution (being a part of the same resolution which is referred to in the bill of complaint) by which it was provided that % of % of the company’s stock should bo issued to the defendants, and also % of the treasury stock which might remain unsold after the development of the mine; that it was also understood and agreed by the directors of the mining company that each person wht was an owner of an interest in the mine at the time it was conveyed to the mining company should have the right to purchase an amount of the treasury stock which was reserved for development purposes, proportionate to his interest; that the defendants subsequently purchased the % interest of George M. Coryell in said lode, which is referred to in the bill of complaint, and that by virtue of such purchase they succeeded to all ol! his rights in and to the stock of the mining company. Defendants further averred that the resolution passed by the directors of the mining company, which is referred to by the complainant in the bill of complaint:, ami on which he mainly founds Ms rigid to relief, was superseded on the very day it was passed by another resolution of the board of directors of the mining- company, which provided, in substance, that none of the stock of the mining company should be issued until warranted by the development of the lode, and until its product was sufficient to pay working expenses: that 5,000 shares of its stock should be set aside for development puntases, and offered at the minimum price of 50 cents per sitare to the persons interested in the company, in proportion to their respective interests; that, if such persons failed to purchase such stock, the same should be thereupon offered to outside parties at the same price; that, if the amount of stock reserved for development purposes should prove insufficient for that purpose, then other portions of the stock should be set aside and sold in the same manner; and that the residue of the stock after the development of ■ the property should be divided among the persons interested in the mining company in proportion to their respective interests. The defendants also averred that in point of fact no stock was ever issued to them as provided in either of the aforesaid resolutions; that no stock was issued under either of said resolutions to any persons interested in the mining company; that the stock of the company was in fact sold from time to time, to realize money for development purposes, at prices which were fixed by the directors; that every share of stock which the said defendants ever received was bought and paid for by them in money, at prices fixed by the directors; and that the entire amount of stock so purchased and received by them did not exceed, in the aggregate, 2,300 shares, and was less than the amount which they were entitled to receive and purchase under and by virtue of the plan of distribution proposed by the aforesaid resolutions. Said defendants also alleged that, at the time the Portland Mining Company was organized, it was the understanding among all the incorporators that the defendant John Ij. Pendery had a contract with the complainant, John K. Carleton, under and by virtue of which he was entitled to represent said Carleton both in the organization of said Portland Mining Company, and in the management of its business after it was organized; that said defendants had no information until the commencement of this suit that said Carleton asserted any claim to, or had any interest in, the stock of the mining company; and that the defendants were entirely ignorant of any arrangement or agreement between said Carleton and the mining company, under and by virtue of which he had conveyed his interest in the Portland lode to the mining company, in consideration for its undertaking to issue to him the a/zz of s/6 of ys of its capital stock. With reference to the stock which said defendants had acquired from the Portland-Mining Company, they alleged, in substance, that they had sold said stock to the defendant William S. Ward for the price of $2.70 per share. They admitted, however, that, when such sale of their stock was made to said Ward, they understood that said Ward desired the mining company to execute a deed for the Portland lode, and that, with such knowledge, they, together with the other directors of the company, had assented to the execution of such deed.</p> <p>The defendants John L. Pendery and L. M. Goddard, who are appellants here, also filed a joint answer to the amended bill of complaint. Their answer differed from that of their co-defendants Thomson and Sayer chiefly in the following respects: Pendery and Goddard admitted that at the first meeting of the Portland Mining Company held on March 29, 1881, a resolution was passed by the directors of the company to the effect that the then owners of the Portland lode should receive b/6 of % of the capital stock of said company as a consideration for the conveyance of the property to the company, — each owner to receive such a share of said stock as would be in proportion to his interest in the Portland lode, — and that b/6 of the remaining half of the capital stock should be reserved to realize a fund for the development of the property. They averred, however, that such resolution never became operative, but was superseded by a resolution passed on the same day, the terms of which are set forth, in substance, in the joint answer of their co-defendants Thomson and Sayer, heretofore quoted. They denied that the Portland Mining Company obtained a deed from the complainant for his interest in the Portland lode in consideration of its promise to issue to him ii/s2 of 6/„ of its capital stock, or any other portion thereof whatsoever. They averred that the only correspondence had between the mining company and the complainant relative to the acquisition of his interest in the Portland lode was conducted on behalf of said company by its secretary, James Armstrong, and that said Armstrong had no authority whatever from the company or its directors to obtain a deed from the complainant for his interest in the Portland lode in consideration for the issuance to him of any part of the company’s capital stock, and that, if said deed had been obtained in pursuance of any such agreement or promise made by said Armstrong, his action in that behalf was without the knowledge or consent of the board of directors of the mining company. They averred that, in selling and disposing of the stock of the mining company after its organization, the board of directors of the company had acted altogether under the provisions of the second resolution above stated; that they had sold stock from time to time, in pursuance of that resolution, to pay the indebtedness of the company, and to obtain money wherewith to develop the property; that the said defendants Pendery and Goddard, and their co-defendants Thomson and Sayer, had purchased all of the stock of the company that was ever issued. and sold under the aforesaid resolution, and that they had been compelled to purchase the stock from time to time because all other persons interested in the mine had refused to purchase it, in order to obtain money wherewith to discharge the indebtedness of the company that had been incurred for development purposes, '[they further averred that all the stock of the, mining company which they had thus acquired they had subsequently sold to William S. Ward, at the rate, of $2.70 per share, and that all the money which they had at any time realized from sales of stock had been applied by them, in good faiih, in developing the mining properly, and in paying the indebtedness of the company, and for no other purpose whatsoever.</p> <p>The' Portland Mining Company filed a separate answer to the amended bill, but It. is unnecessary to state the contents thereof, since the mining company has not perfected an appeal.</p> <p>Prior to the filing of the aforesaid answers, the defendants Pendery, Goddard, Thomson, and Buyer joined in a general demurrer to the amended bill, which was overruled. ReplicalIons to the aforesaid answers to the amended bill having been filed, and additional testimony having been taken, both by the complainant and the defendants, the cause was submitted to the circuit court on February 8. 1897, for final decision upon the amended bill, the answers thereto, and the proof taken in support thereof. On March 1, 1897, the trial court rendered a decree against the defendants for the sum of $8,593.31. A joint appeal from that decree was taken by the defendants Pendery, Goddard, and Thomson. The defendant Sayer was allowed a separate appeal, but both appeals are before us on the same record.</p>

<p>1. Equity Pleading — Parties.</p> <p>The joinder of a party who has no interest in the suit may be taken advantage of by general demurrer for want of equity; but the defect is curable by amendment.</p> <p>2. Same — Pledge.</p> <p>The pledgee of a chose in action, having an equitable interest therein, is a proper party plaintiff in a bill in equity with reference to such chose in action.</p> <p>8. Same.</p> <p>Where an assignment of a chose in action is not absolute, or Its extent or validity are in dispute, or remaining rights or liabilities of the assignor may be affected by the decree in a hill in equity with reference to such chose in action, the assignor is a necessary party to such suit. His nonjoinder, however, may be cured by amendment.</p> <p>4 Same-Case for Relief — Demurrer.</p> <p>Where a subscription certificate for railway bonds on its face entitles the subscriber merely to bonds of some one of several railways, whenever such bonds may be issued, but the subscriber’s bill of complaint alleges that a supplementary agreement was made by which he was to receive bonds of one specified company, and that all the bonds of that company have been otherwise disposed of, the bill states a ease for relief, and is good on demurrer.</p> <p>5. Same — Recently Discovered Fraud — Necessary Averments.</p> <p>In a bill for relief from an alleged, but concealed and recently discovered, fraud, there must be distinct averments as to tlie time of discovery of the fraud, how the knowledge was obtained, why it was not obtained earlier, and as to diligence previously used in investigating the transaction. A mere allegation of concealment and ignorance is not sufficient.</p> <p>6. Same — Staleness of Claim — Defense How Raised.</p> <p>A defense grounded upon the staleness of the claim asserted may be made by demurrer.</p> <p>7. Same — Demurrer—Amendment to Bill.</p> <p>Where a bill has been dismissed on demurrer for laches, because no sufficient explanation of the delay is pleaded, the appellate court may, in the absence of positive inequity, reverse the decree and direct the allowance of an amendment to the bill.</p> <p>8. Stock Certificate — Assignment.</p> <p>Although stock certificates provide that they shall not be negotiable without the consent of the company and transfer on its books, a complete equitable title passes by absolute and unconditional assignment</p> <p>ft Laches — What Constitutes.</p> <p>The defense of laches is not a mere matter of time, like limitation,-but is a question of the inequity of enforcing the claim; and hence the statute of limitations does not necessarily bind the court in all cases. Each ease depends upon its own circumstances, and no invariable rule as to time and vigilance can be laid down.</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This is an appeal from a decree which so reformed five policies of life insurance as to advance the term of insurance described in them six days, and which in this way made them cover a death which occurred on the sixth day after the policies had expired by their terms. Each of the policies was dated on December 18, 1893. By each, the New York Life Insurance Company, the appellant, insured the life of Prank E. McMaster in the sum of $1,000, for the benefit of his executors, administrators, and assigns, in consideration of his written application, -“and in further consideration of the sum of twenty-one dollars and -cents, to be paid in advance, and of the payment of a like sum on the twelfth day of December in every year thereafter during the continuance of this policy.” Each policy contained these stipulations: “If any premium is not thus paid on or before the day when due, then (except as herein otherwise provided) this policy shall become void, and all payments previously made shall remain the property of the company. After this policy shall have been in force three months, a grace of one month will be allowed in payment of subsequent premiums, subject to an interest charge of five per cent, per annum for the number of days.during which the premium remains due and unpaid. During the said month of grace the unpaid premium, with the interest as above, remains an indebtedness due the company; and, in the event of death during said month, this indebtedness will be deducted from the amount of insurance.” Each policy was issued upon a written application, which was dated on December 12, 1893. The policies were delivered to McMaster, and the first premiums were paid, on December 26, 1893. He never paid the premiums due on December 12, 1894, and he died on January 18, 1895, on the sixth day after the policies had expired. Pred A. MCMaster, the administrator of the estate of the deceased, and the appellee in this ease, exhibited his bill in the court below to so reform these policies that their terms of insurance should commence on December 18, 1893, and should expire at midnight on January 18, 1895, after the death of the insured. In his bill he set forth two grounds for the relief which he sought: (1) That, after the insured had signed his applications for these policies, the agent of the insurance company wrote into them, without his knowledge, the words, “Please date policy same as application,” and the company made the annual premiums due on December 12th in each year, when they would have been due on December ISth if those words had not been inserted in the applications; and (2) that the contract for the insurance was that the insured should have policies of the kind which he received, which should remain in force 13 months from the time when the first annual premiums were paid, without further payments, and that the policies actually delivered remained in force only 12 months and 17 days after their delivery. The answer denied the averments of the bill, and these facts were established by the evidence: In order to induce the insured to make his applications for the policies, the solic5tor of tlio company told Mm that its policies gave Mm 13 months of insurance for (he first annual premium, and in answer to this direct, question. “Did you, or did you not, agree for the company that they would furnish him a policy that would he good for thirteen months, and that, in order to secure the thirteen months of insurance, all that he had io do was to pay one premium?” he answered, “Yes, sir; I stated to Mr. McMaster that the one premium he paid parried his policy i'or full thirteen months.” McMaster signed the applications for the policies at the lime of this conversation, on December 12, 1893, but he did not pay any premiums until December 26, 1893; and there is no evidence iliat, at any time before the policies were delivered, on December 26, 3893, he ever agreed to take the insurance, or to pay any of the premiums, jitter the applications were signed, the agent'wlio procured them wrote into them (he words, “Please date policy same as application,” for the purpose of securing a bonus or extra commission which the company allowed its agents on December business. In November, 3894, written notices were sent to the insured by the company that his second premium on each policy would he due on December 12, 1894. On December 31 or 12, 1894, a. collector called on him for his second annual premiums, and asked him to pay them. He replied that he did not intend to keep tlio insurance in force, and did not care to pay the premiums. The collector told him that he had 30 (lays of grace in which to make the payments, and told him when the days of grace would expire. He answered that, if he decided to keep any of the insurance, he. would come to the office and pay the premiums before that date. He did noi come, and lie never objected to, or complained of, the policies or their terms. Upon this record the decree which is challenged by this appeal was rendered.</p>

Appeals from (lie Circuit Court of the United States for the Southern District of Illinois. These appeals are from decrees against the appellant, O. II.

The Granite State Provident Association (hereafter termed the “Association”) is a corporation organized under the laws of New Hampshire, having its principal office at Manchester, in that state, for the purpose of doing- an investment and loan business.

This was an action by John W. Jacobus against the United States, which was brought under the provisions of section 2 of the act of March 8, 1887 (24 Stat. 505), known as the “Tucker Act.”

<p>Negligence — Sale op Depective Articles — Liability to Third Person.</p> <p>In the absence of fraud or deceit in effecting the sale, the maker and seller of an article not inherently dangerous in character is not liable to one, not a party to the contract of sale, who is injured because of defects in the material or construction of the article, arising from negligence of the maker.</p>

This was an action at law by the Mechanics’ Savings Bank, a Rhode Island corporation, against the Fidelity Insurance, Trust & Safe-Deposit Company, a Pennsylvania corporation, as administrator d. b. n. c. t. a. of the estate of John CL Reading, deceased. Reading was a stockholder in the Davidson Investment Company, a corporation organized under the laws of Kansas, and the suit was brought to enforce the stock liability of his estate under the Kansas laws.

This was an action by the California Savings Bank of San Diego against the American Surety Company of New York upon a bond of indemnity insurance. The case was heard on a demurrer to the amended complaint.

<p>1. Contracts — Breach—Right op Promisee to Complete.</p> <p>Where a contract to furnish horses for the United States cavalry te not completed, and the contract gives the government the right to complete it at the contractor’s expense, if sufficient suitable horses cannot be obtained at the stipulated place of performance the government may purchase wherever it can secure the best terms.</p> <p>2. Evidence — Competency of Witness — Purpose of Obtaining Information.</p> <p>Upon an issue as to how many horses arriving at a certain place during a specified time satisfied the requirements of a contract, it was error to reject the testimony of a witness who examined such horses with sufficient care to know whether they complied with the requirements, on the ground that his examination was not made with a view of ascertaining whether such requirements were satisfied.</p> <p>3. Same.</p> <p>The test of the competency of a witness is the extent of his knowledge, not the purpose with which he acquired it.</p>

These were personal injury cases brought severally by the -defendants in error, and consolidated on the trial. They were ship carpenters, and, at the time of receiving the injuries complained of, in the employment of the Marine-Ways Company, at Paducah, Ky., repairing a steamboat, and were working under the guards of the boat, on a scaffold built by the Marine-Ways Company.

This is an action on the case, to recover damages for personal injuries alleged to have been sustained through negligence in the operation of a train of cars belonging to the plaintiff in error.

<p>1. Master and Servant — Negligence of Master.</p> <p>It is negligence for a railway company or its receiver to store heavily loaded cars upon a side track having a sharp grade, without taking any precaution to prevent their escape onto the main track other than setting the brakes on the car nearest thereto.</p> <p>2. Samis — Contributory Negligence of Servant.</p> <p>It is not contributory negligence for a railway employé, without actual or imputed knowledge of the condition of a side track, to act on the assumption that it is reasonably safe and suitable for use, and that the cars thereon are safely secured.</p>

This action was brought to recover damages for a personal injury sustained by the defendant in error while riding in a caboose of llie plaintiff in error, attached to the-rear end of a stock-car train operated by it. Several of the cars composing the train contained live stock which was being shipped by Swift & Co. from Chicago to Boston.

<p>1. Counties — Limitation upon Indebtedness — Excess.</p> <p>Bonds issued by a county in violation of a provision in the state constitution, limiting the indebtedness of counties to a certain proportion of the value of their taxable property, constitute no enforceable obligation of the county; and bonds subsequently issued, at a time when such issue did not bring the total indebtedness of the county, excluding the invalid bonds, up to the constitutional limit, are valid, although the county may after-wards voluntarily pay the invalid bonds. 81 Fed. 127, affirmed.</p> <p>2. Samis — Invalid Bonds — Voluntary Payment — Subrogation.</p> <p>Where invalid county bonds are voluntarily paid by the county, the funds being secured by sale of other similar bonds, which are subsequently repudiated for the same illegality, equities, if any existed, of the holders of the first issue, are extinguished by the payment, and the holders of the second issue cannot be subrogated thereto. 81 Fed. 127, affirmed.</p>

<p>1. False Representation op Corporation — Statement op Capital Paid In —Cause of Action.</p> <p>The cause of action of one who sufférs loss in consequence of the false representation, in the sworn statement of the incorporators of a Pennsylvania corporation, in their application for letters patent, that 10 per centum of the capital stock is paid in, arises out of the fraud, and an action ex contractu for such loss will not lie.</p> <p>3. Same — Assignee of Judgment — -Inducement to Purchase — Rights Acquired.</p> <p>The assignee of a judgment against a Pennsylvania coiporation does not acquire the judgment creditors’ right of action against the incorporators for false representations in the sworn application for letters patent; and he has no such cause of action unless his acquisition of the judgment was induced by his belief, and in reliance on such representations.</p>

<p>1. Usury Paid to National, Banks — Recovery—Assignee for Creditors.</p> <p>An assignee for the benefit of creditors under the Kentucky statutes, who, in order to get possession of collaterals, pays to a national bank a note of bis assignor, which includes usurious interest, may maintain an action to recover it back, under Rev. St. § 5198. The assignee is the assignor’s “legal representative” in the meaning of that section.</p> <p>2. Limitation of Actions — Usury—Renewai, Notes.</p> <p>Usurious interest on a note is not paid, so as to set running the statute of limitations against an action to recover it back, by giving a renewal note which includes the interest. The statute only begins to run from the time the renewal note is paid.</p> <p>8. Usury — Amount of Recovery.</p> <p>Under Rev. St. § 5198, which provides that one paying usurious interest to a national bank may recover back twice the amount of the interest thus paid, it seems that the recovery allowed is twice the amount of the entire interest, and not merely of the excess over the legal rate.</p>

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

<p>1. .Mineral Lands in Indian Reservation — Restoration to Public Domain —When Open to Location.</p> <p>Mineral lands within the limits of the tract described in act July 1, 1892, § 1, providing for opening a part of the Colville Indian reservation in the state of Washington were, by said act, restored to the public domain, and were thereafter, without any proclamation of the president so declaring, open to exploration and location under the general laws of the United States.</p> <p>8. Same — Power Vested in President — Opening for Settlement.</p> <p>The provision of Act July 1, 1892, vesting in the president power to fix a date when that part of the Colville Indian reservation restored to the public domain should be open to settlement, was intended to give the Indians first choice of lands to be allotted to them, and had no application to mineral lands, which were not subject to such allotment.</p>

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

This was an action at law by Abe Schiffer and I. W. Schiffer, partners under the name of the Bank of Alamosa, against the trustees of Columbia College in the city of New York, to enforce the individual liability of the defendants as stockholders in a Kansas corporation. The case was heard on demurrer to two paragraphs of the answer.

This was an action at law by Patrick Sheahan against the National Steamship Company to recover damages for breach of contract. The judgment below was for defendant, and plaintiff sued out this writ of error.

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

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

<p>1 Criminal Procedure — Indictment—Several Counts.</p> <p>Where an indictment consists of numerous counts, the trial court may, in the exercise of sound judicial discretion, require the government to elect certain counts upon which it will ask conviction; but where the counts are all for transactions connected together, or of the same class, their joinder is proper, under Rev. St. § 1024, and the exercise of the court’s discretion will not be disturbed, except in a clear case of improvidence or abuse.</p> <p>2. Same — Mistrial—Former Jeopardy.</p> <p>Where, during the trial, a juror becomes disqualified, and the court adjudges a mistrial, a plea of former jeopardy is not good on a second trial, even though all parties were willing to proceed with 11 jurors.</p> <p>8. Same — Reading of Indictment.</p> <p>Where defendants have been arraigned, and have waived reading of the indictment, they may not subsequently complain if the whole indictment is not read at the trial, but such parts of it are read, and such explanations made of the other parts, as may give the jury the clearest comprehension of it.</p> <p>4 Same — Verdict—Form.</p> <p>Where the jury find accused guilty upon all counts of an indictment, “Guilty as charged,” without specifying the counts, is a proper form of verdict.</p> <p>6. Same — Count to Sustain.</p> <p>Where the verdict is sustained by one good count in the indictment, it must stand, even if all the other counts are bad.</p> <p>6. Same — Indictment—Amendment.</p> <p>Where, after mistrial, and before a new trial, amendments are made to purely formal parts of certain counts of an indictment, and the defendants are not - rearraigned, even if the irregularity is material it can affect only the counts so amended, and the error is cured by arrest of judgment on such counts.</p> <p>7. Same — Sentence—Hard Labor.</p> <p>Where the statute under which a prisoner is sentenced provides for imprisonment, but not at hard labor, the words “at hard labor” should not be inserted in the sentence, even if hard labor is a part of the discipline of the prison at which the sentence is to be served.</p>

<p>United States Commissioneks — Powek to Take Baiu.</p> <p>United States commissioners, under Rev. St. §§ 1014, 1015, have the same power to take bail upon an arrest made after an indictment as they have in cases of arrest before indictment.</p>

<p>In Error to the District Court of the United States for the Middle District of Alabama.</p>

<p>Customs Duties — Classification—Electric Light Carbons.</p> <p>Electric light carbons, of which lampblack is the chief component, were dutiable under section 3 of the act of 1894, at 20 per cent., as “articles manufactured in whole or in part, not provided for,” and not as “articles composed of earthern or mineral substances,” under paragraph 86, or preparations or products of coal tar, under paragraph 443.</p>

This was an application to review a decision of the board of general appraisers affirming a decision of the collector of the port of New York in regard to the classification for duties under the act of August 28, 1894, of certain fabrics. The general appraisers found that they were composed of silk and worsted, silk being the component material of chief value in all. but wool predominating in quantity in all but one.

This was an application to review a decision of the board of general appraisers affirming, as to the items mentioned in the opinion of the court, a decision of the collector of the port of New York in regard to the classification for duties under the act of August 27, 1894, of certain merchandise.

<p>This was an application to review a decision of the board of general appraisers affirming a decision of the collector of the port of New York, in regard to the classification for duties under the act of August, 28, 1894, of,certain hollow glass spheres about three-fourths of one inch in diameter, as “toys,” under paragraph 321.</p>

This was an application to review a decision of the board of general appraisers affirming a decision of the collector of the port of New York, in regard to the classification for duties, under the act of October 1, 1890, of certain fabrics. The board found that they were laces composed of silk and mohair, the latter being a product of wool or worsted, and that the mohair was more than 12 per cent, of their entire value.

This was an application to review a decision of the board of general appraisers affirming a decision of the collector of the port, of Xow York in regard to the classification for duties under the act of August 28, 1894. of certain wood powder, classifying it as a “manufacture of wood not specially provided for,” under paragraph 184. The importer claimed that it should be classified, under paragraph 303, as “wood pulp.”

These are appeals by the United States from decisions of the board of general appraisers at New York sustaining protests of importers; the question involved being a determination of the time at which… Held: in other words, not to take effect at the earliest hour of the day of approval, but only in futuro from the moment of such approval.

This was an application to review a decision of the board of general appraisers reversing a decision of the collector of the port of New York in regard to the classification for duties under the act of August 27, 1894, of certain merchandise. The board found that it was “sheet steel in strips, cold rolled, valued at leiss than 4 cents per pound,” and dutiable under paragraph 122, according to value per pound..

This was an appeal from the decision of the board of general appraisers of New York fixing the duty to be imposed on certain tobacco.

This was an appeal by Eimer & Amend, importers, from the decision of the board of general appraisers sustaining the action of the collector of New York in assessing duty upon certain instruments imported.

This was a suit in equity brought by the Fish Bros. Wagon Company, of Racine, Wis., against the Fish Bros. Manufacturing Company, of Clinton, Iowa, to restrain defendant from the nse of the trade-mark and trade-name claimed by complainant.

<p>1. Trade-Names — Unfair Competition — Use of One’s Own Name.</p> <p>One entering a particular trade may not use tils own name in a way calculated to cause contusion between his own goods and those of a,n old established manufacturer, having the same name.1</p> <p>2. Same — Popular Designation of Goods.</p> <p>When a manufacturer's goods have become known to the trade and to commerce as "Baker’s Chocolate,” "Baker’s Cocoa,” and “Baker's Breakfast Cocoa,” ano1 Iter also bearing The name "Baker,” subsequently entering the trade, may not use, to designate Ms goods, those combinations of words, with or without the addition of other words or names.</p>

<p>This is a suit in equity by Benjamin Lillard and another against the Hun Printing & Publishing Association, seeking an injunction and accounting for alleged violation of complainants’ copyrighted production. It comes up on demurrer to the bill.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>This was a suit in equity by the United Indurated Fibre Company of New Jersey and others against the Whippauy Manufacturing Company and others for alleged infringement of letters patent No. 267,492 (reissue No. 10,282) for a process of rendering paper or paper pulp articles hard, tough, and impervious; and also letters patent No. 342,609, to Martin L. Keyes, for a pail or other similar article formed of wood pulp or other similar fibrous material. The circuit court made an order granting a preliminary injunction (83 Fed. 485), aud the defendants have appealed.</p>

This was a suit in equity by William A. Schrei and Hiram Mills, doing business as Schrei & Mills, against Nelson Morris, Frank EL Vogel, Edward Morris, and Herbert N. Morris, co-partners as Nelson, Morris & Co.', for alleged infringement of letters patent No. 547,185, issued October 1, 1895, to William A. Schrei.

<p>1. Masters in Chancery — Duties and Powers — Review by Court.</p> <p>When a cause is referred to a master to take an account of profits or damages, it is his duty to pass upon all the questions of procedure arising before him. His action is subject to review only when he has completed his labors, and filed his report; and the court will not, in the meantime, on the application of a party, give him directions not to take evidence in relation to a particular matter.</p> <p>2. Patent Suits — Profits and Damases — Master’s Report.</p> <p>Profits and damages should be computed by the master as nearly as may be to the time of filing his report. If defendant has changed his machine so as to differ from that decreed by the court to infringe, the master must, in the first instance, determine whether the new form is also an infringement; but he is bound by the terms of the decree, and is, therefore, limited to the inquiry whether the new machines are substantially similar to the ones adjudged to infringe.</p>

<p>1. Patents — Specifications—Equivalents.</p> <p>A patentee is not obliged to state all tlie known equivalents of the materials used by him.</p> <p>2. Same — Jnfbingemjent.</p> <p>In a patent for the production of an incandescent mantle for lights, the patentee's claim was, “paraffin, or other suitable material, substantially as sot forth.” In his specifications he stated that “other materials may be employed, as long as they set hard at ordinary temperatures, and burn away without mechanical destruction to the mantle.” Held, that the patent was infringed by using for the same purpose collodion and castor oil.</p> <p>3. Same — Incandescent Mantles.</p> <p>The Eawson patent, No. 407,903, for “production óf incandescent mantles,” was not anticipated, but covers an invention of pioneer rank, and is entitled to be so construed as to cover a broad range of equivalents.</p>

States for the District • of New Jersey. This was a suit in equity by the Paul Boynton Company against the Morris Chute Company and others for alleged infringement, of a patent for improvements in inclined pleasure railways. The circuit court dismissed tlie bill, holding that the patent is void for want of novelty and invention (82 Fed. 440), and the complainant has appealed.

<p>Salvage Com pens avion — Sickness oe Ship’s Crew — Towage.</p> <p>Seven (.eon thousand dollars, with disbursements and interest thereon, awarded a steamer for bringing into port, a distance of about 300 miles, a full-rigged sailing ship, valued, with her cargo, at about $200,000, where, on account of long-continued sickness, there were not sufficient men out of the ship’s crew to navigate her, when the provisions of the ship were nearly exhausted, and when the state of the weather rendered It difficult and dangerous to perform the service.</p>

<p>1. Conditional Sale of Vessel.</p> <p>Where, under a contract for the sale of a vessel, part of the purcha0"1 price is paid down, and the vendor retains the legal title as security for lh , balance, the transaction is a conditional sale, and not a sale with reservation of a lien, though the vendor may have believed the contrary.</p> <p>2. Maritime Law — Authority of Shipmaster.</p> <p>The master of a ship in a foreign port, in the absence of the owner, has authority, under the general maritime law, to bind his owners for necessary repairs and supplies; and interested parties may assume that he has such authority, unless something appears to suggest the contrary, and put them on inquiry.</p> <p>3. Same — Foreign Port.</p> <p>With reference to any vessel, any port is considered foreign which is out- • side of the state where she belongs.</p> <p>4. Same — Pledging Credit of Ship.</p> <p>Where a steam vessel has been conditionally sold, and repairs are being made to her by order of the vendees in possession, directions given by the master to the workmen that the work must be finished by a certain date do not bind the ship for the cost of the repairs.</p> <p>5. Same.</p> <p>Possession of a vessel under an agreement for sale does not confer upon the vendee an apparent authority to create liens for supplies; and a person furnishing supplies upon the order of such a person is put upon inquiry as to his actual authority.</p> <p>6. Maritime Lien — Services.</p> <p>One who, at the time of rendering services as a purser on board 'of a steamer, is a part owner of the steamer under an equitable agreement for its purchase, and who is also a partner in the business in which she is engaged, is not entitled to enforce a maritime lien for his services as against the vendor of the steamer.</p> <p>7. Same.</p> <p>One employed as traveling agent for a vessel, soliciting trade for her at different points along her route, is not engaged in rendering a maritime service, and lienee is not entitled to enforce a lien against the vessel for his compensation, though ho is accustomed to give occasional assistance to her crew. •</p>

<p>Jurisdiction ob’ Controversy — Nonresident Defendants — Motton to Set Aside Subpcena and Service.</p> <p>Where the court would have jurisdiction to decide the controversy as to a nonresident defendant wlio cannot be compelled to litigate, If he, should waive Ills personal privilege and appear, a service of the subpoena upon him must be set aside, on his motion, but the subpoena itself will not be set aside.</p>

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

<p>1. Removal of Causes — Delay in Filing Record.</p> <p>Where a cause is removed from a state to a federal court, the mere fact that the record is not filed in the federal court until after the first day of the next term does not furnish sufficient ground for remanding the cause, it not appearing that the delay was for the purpose of delaying the trial or causing some other injury to the opposing- party, and no inexcusable neglect of duty on the part of counsel being shown. The court, however, may, in its discretion, impose such conditions as may seem just and proper under the circumstances.</p> <p>2. Same — Jurisdiction of Federal Court.</p> <p>Where a cause is removable under the statute, upon the filing of a petition and bond for removal, the jurisdiction of the federal court attaches at once, in advance of the filing of a copy of the record, and no order of the state court for removal is necessary.</p>

<p>This was an action by one Nugent against the Philadelphia Traction Company. Plaintiff demurs to the plea.</p>

This was a suit by the Elkhart National Bank, of Elkhart, Ind., against the Northwestern Guaranty Loan Company, of Minnesota, and Edward P. Allison and others, stockholders of said corporation, residing within the Eastern district of Pennsylvania. The purpose of the suit was to enforce the individual liability of stockholders. The bill was dismissed for want of necessary parties defendant, and plaintiff appeals.

<p>This was a bill of revivor brought by J. Wool Griswold against William H. Hilton, receiver of the Kilmer Manufacturing Company.</p>

<p>1. Chancery Practice — Suits against Receiver — Jury Trial.</p> <p>Where a complainant, instead -of proceeding at law, under 25 Stat. 433, against a receiver appointed by a federal court, intervenes in the receivership proceeding on the chancery side, he waives his right to trial by jury; and, if the court submits an issue of fact to a jury, the verdict and findings are merely advisory.</p> <p>2. Master and Servant — Fellow Servant.</p> <p>One of a' gang of men engaged in clearing away a railway wreck is a fellow servant of the acting foreman of the gang, and cannot recover damages from the company for an injury received through the alleged negligence of such foreman.</p>

This was a bill for an accounting by Frank R. Chandler, trastee and executor, and another against Josephine Pomeroy and another.

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

<p>1. Corporations — Liability of Trustees — Statutes.</p> <p>Comp. St. Mont. c. 25, § 400, making trustees of domestic corporations liable for corporate debts, on the failure of tbe corporation to make and file an annual report, was not repealed by Const. Mont. art. 15, § 11, which provides that “no company or corporation formed under the laws of any other country, state or territory, shall have or be allowed to exercise or enjoy within this state, any greater rights or privileges than those possessed or enjoyed by corporations of the same or similar character created under the laws of the state.”</p> <p>2. Alteration of Instruments — Guaranty.</p> <p>Where, without the knowledge of the maker of a note, the payee secures a third party to guaranty it by adding his signature to it, such guaranty is an alteration which will release the maker.</p> <p>3. Same.</p> <p>Where a corporate note, which had been altered by adding the signature of another without the knowledge of the maker, is again altered by removing such signature, subsequent to the fixing of the liability of the trustees of the company for its debts by a failure to publish its annual report, such subsequent alteration relieves the trustees from liability.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Texas.</p> <p>On December 3, 1896, one W. E. Dupree executed a deed of trust, by which ho conveyed, for the benefit of his creditors, his goods, wares, merchandise, and other personal property described in the deed of trust. The deed of trust divided the creditors into three classes, A, B, and 0; the total amount of claims intended to be secured being- ¡<211,611.08. William W. Evans, the intervener herein, was included in class A; and provision was thus made for payment to him of a debt of ¡¡¡3,518, represented by notes. The deed of trust provided that the trustee should sell the property conveyed, and that if the proceeds of the sale should be insufficient to pay all the creditors, a certain claim of the Provident National Bank of Waco, Tex., should first he paid by preference, and the remainder of the proceeds of sale should then be divided pro rata among the creditors composing class A, which, as already staled, included the claim of the intervener, Evans. On December 5, 1S9S, the Mansur & Tebbetts Implement Company and the Washburn & Moen Manufacturing Company filed their bill in the circuit court of the United States for the Northern district of Texas, at Waco, against Dupree and one -T. O. Birkhead, the trustee, and the Provident National Bank; setting- up, among'other things, the execution of said deed of trust, and the provisions thereof; estimating the value of the properly not to exceed the sum of .865,500. and alleging that the time within which such property must lie sold by Birkhead was insufficient to permit a prudent and fruitful administration of the trust conferred on him, and, on account of the character of goods conveyed to him therein, that the same could not be marketed for a fair price, for cash, within the next ensuing five months: charging a combination between Birkhead and Dupree in the making- of said deed of trust; that Birkhead was a man of small means, and that by the terms of said instrument he was not required to give bond to secure the beneficiaries under the deed of trust for a faithful administration of his trust; that suits by creditors had been instituted against Dupree, and writs of attachment issued thereon, and that the same had been levied and attempted to be levied upon the goods conveyed by the instrument, not by seizure and appropriation, but by giving notice to Birkhead and his employes in charge and custody of the property, that writs of garnishment against Dupree were sued out in different courts of McLennan county, Tex., and served upon Birkhead and his employés in charge of said assets and property; and alleging that controversies have arisen and will arise between the attaching creditors and garnishing creditors of Dupree; that the assets and property conveyed in said deed of trust were not sufficient in value to pay off the expense of administering the trust and .the debts in Exhibit A of said instrument, and also pay off and discharge in full the debts mentioned, including the debts of the complainants, who are in class B, and will not pay the complainants and other creditors in class B more than 50 per cent, of their claims. The bill charges combination and confederacy between Dupree and Birkhead; that, unless restrained by injunction, Dupree and Birkhead will, acting together and in concert, take from the assets and property conveyed to Birkhead by the provisions of said trust deed a sufficient sum of money to pay off and discharge the debt due by Dupree to the Provident National Bank, and will cancel and discharge said debt, and that Birkhead will turn over and deliver to Dupree the collateral securities which the Provident National Bank holds to secure the payment of this debt, unless enjoined from so doing. The bill further prays for the appointment of a receiver to take charge of, and administer under the orders of the court, the assets and property of every kind conveyed by the deed of trust, as well as the collateral securities held by the Provident National Bank, and that the property be administered and the proceeds thereof be distributed under the orders of the court, and the receiver be required to collect the collaterals, and that the same be applied, by proper orders of the court, towards the payment of the debt first due to the Provident National Bank, and that complainants’ claims be established and declared a lien upon the funds in the hands of the receiver, according to the priorities that may be established therein, and that all parties entitled to participate in said fund be required to intervene therein and establish their rights thereto, and that the injunction therein prayed for might be perpetual.</p> <p>On tins bill of complaint, the judge of the United States circuit court appointed a receiver of all the property covered by the deed of trust, or held by the Provident National Bank as security for Evans’ debt to it. The injunction prayed for was also granted. On December 6, 189C, the receiver qualified and took possession. Thereafter, W. B. Belknap & Co. filed their bill of complaint, asking for the removal of Birkhead as trustee, and for a receiver of all the properties which by a chattel mortgage of date December 3, 1896, Dupree conveyed to Birkhead as trustee; also, of the property held by the Provident National Bank as collateral security; and also of property held by one S. W. Slayden and one J. B. Baker as collateral security, — the last two not being defendants in the original bill. The court thereupon ordered that F. E. Fink, who had previously qualified as receiver in the cause in which the Mansur & Tebbetts Implement Company et al. are plaintiffs, be also appointed receiver under the bill filed by W. B. Belknap & Co. Subsequently, as shown by three orders, the court directed that all persons interested be granted leave to intervene in the proceedings, without further leave of court, subject to exception; that all interventions, without further order, be referred to a standing master of the court named in the order; and that the master report on the law and facts of all interventions.</p> <p>The intervener herein, W. W. Evans, filed his petition of intervention, setting up that on March 7, 1896, the defendant W. E. Dupree made and delivered to him his promissory note for the sum of §1,000, payable at Waco, Tex., 00 days after date, bearing interest at the rate of 10 per cent, per annum from date until paid, and providing that if default was made in the payment of said note at maturity, and it was placed in the hands of an attorney for collection, the maker thereof would pay the amount of 10 per cent, additional on the principal and interest of said note as attorney’s fees. The intervener further showed that said Dupree on or about the 1st day of December, 1896, for a valuable consideration, made and delivered to the intervener his certain other promissory note for the sum of §2,500, payable at Waco, Tex., 60 days after ¡he dato thereof, and hearing interest at the rate of 10 per cent, per annum from date unfit paid, and providing for attorney’s fees as in the first note. Intervener further showed that he was the legal owner and holder of said notes, and. set up the fact that on or about the 3d day of December, 1890, said Dupree made his deed of trust to J. C. Birkhead, as trustee, conveying all of his stock of goods, wares, and merchandise owned by the said Dupree in McLennan, Falls, and Ilill counties. Tex., as is fully set out and described in said deed of trust, and that the said Birkhead accepted as such trustee, under the provisions of tin-, said deed of trust, and that, on the application heretofore mentioned, said Birkhead was removed by the court:, and Frank F. Fink appointed as receiver in his stead, who qualified as such, and is now acting as such, under the direction of the court. Intervener further showed that in said deed of trust the aforesaid indebtedness due by said Dupree to intervener was secured in class A, as provided for in said deed of trust, and this intervener became invested with a valid and subsisting lien on all the property conveyed id said deed of trust:, to secure the payment of said moneys as aforesaid. Intervener further showed 1hat he accepted under the provision of the said deed of trust before any intervening rights of any oilier creditors attached, and he is now the legal holder and owner of a valid and subsisting lien conveyed in said deed of trust, to secure the payment of said moneys. The prayer of his plea of intervention was that the said notes be adjudged to be secured by a valid and subsisting and prior lien on the property conveyed in said deed of trust, and the funds arising from the sale thereof by the receiver in this cause, and that said notes, interest., and attorney’s fees be paid. To this petition of intervention the receiver, Frank F. Fink, filed an answer on April 5, 1897, which said answer consisted of a general demurrer and general denial.</p> <p>A hearing was had before the master on intervener’s petition, and testimony taken, and said standing master filed his report in court as to all the claims presented before him for trial under the court’s order. Among other things connected with said report is the finding as to claim of intervener, William W. Evans: “No. 83. W. W. Evans, Intervener. This claim is duly verified as required by order of court. Exceptions of complainant overruled. This claim is for two notes, — one for the sum of $1,000, dated May 7, 1896, due sixty days after date, bearing interest at the rate of 10 per cent, per annum, and providing for 10 per cent, attorney’s fees; also, a note dated 1st of December. A. I). 1890, for $2.500, due sixty days after date, bearing interest at same rate, and containing the same stipulations, — the two notes aggregating S3,518. I consider the claim a just claim, to be paid as provided in class A. See testimony, pp. 190 to 212, inclusive.” The master found, also, among other things, as follows: “I would state that before hearing these causes I notified the parties in interest that I would consider the deed of trust, together with the exhibits thereto attached, set forth in and accompanying complainant’s bill, in evidence, in all the cases where they were proper to he used; and I further announced that any evidence heard in any case would be used and considered by me, wherein it was applicable to such other cases.”</p> <p>On the same day that the master’s report was filed, the Mansur & Tebbetts Implement Company and the Washburn & Moen Manufacturing Company filed an answer to intervener’s petition of intervention, in which they set up: First. That they excepted to the intervening petition, and said the same was insufficient in law. Second. They denied every allegation in the petition. Third. They set up. in substance, that on the 1st day of December, 1890, the defendant W. E. Dupree was insolvent and unable to meet his existing liabilities, and had not property within his possession at that time sufficient to pay his creditors, and had then a large amount of mercantile indebtedness, about to mature and maturing on said date, which said Dupree was wholly unable to pay; that said Dupree on the 1st day of December was preparing, and had for some week, or 10 days prior thereto been preparing and arranging- his matters, with a view of disposing of all of his property subject to execution for the purpose of placing the same beyond the reach of his creditors; that on the said 1st day of December, 1890, and long prior thereto, the intervener herein had been and was the confidential adviser and attorney of said Dupree, and was fully advised respecting the financial condition of the said W. E. Dupree, a.nd well knew that said Dupree would within a few days strip himself of all property liable to be taken in execution, and subject by law to the payment of Dupree’s indebtedness; that in fact on said 1st day of December, 1S96, the plans of the said W. E. Dupree (which were well known to the said W. W. Evans, intervener) for the purpose of disposing of said Dupree’s property were well advanced towards maturity, and were certain and definite; that the tangible property of the said Dupree at that time was of such a character as might be taken in attachment or execution or other legal process, and consisted of certain stocks of goods, wares, and merchandise, specifically set forth in bills of complaint fileij herein, and of certain real estate in the city of Waco, Tex.; that it was then in contemplation and known to intervener that said Dupree contemplated deeding and conveying his homestead and exempt property in the city of Waco to his wife, in consideration of love and affection; that it was also well known to intervener that the other real-estate property standing in Dupree’s name on' said 1st day of December, 1896, had been covered by mortgages and securities, either valid or fictitious, and that a large part of such securities were then held by intervener, or were intended by said Dupree and the intervener then to be transferred to the intervener; that while said Dupree was in the condition aforesaid, and on the eve and brink of hopeless insolvency, the said intervener advanced to the said Dupi/ee the sum of $2,500 in cash money, which said Dupree then and there placed in his pocket, and beyond the reach of his creditors, as the said intervener then well knew he would do, and the note for $2,500, set forth in intervener’s petition herein, was executed only in consideration for said $2,500 so handed and delivered by intervener to the said W. E. Dupree on'December 1, 1896; that on, to wit, December 4, 1896, the said Dupree, in pursuance of his former intention, known to intervener as aforesaid, did convey all and every character of tangible property which he then owned, and placed the same beyond the reach of legal process, and did not leave in his possession in this state sufficient property to pay his then existing indebtedness. They averred that the intervener’s claim, as propounded, was fraudulent in law, as to the complainants, who were on December 1, 1890, existing creditors of said W. E. Dupree, and that said claim so propounded was void as to complainants. While, according to their file mark, the foregoing exceptions and answer of complainants to Evans’ intervention would appear not to have been filed until the day on which the master made his report, it is contended that in point of fact they were in the hands of the master when he heard the intervention, and that his findings so show'.</p> <p>The Intervener, Evans, excepted to the master’s report, as to that part finding that the two notes aggregated the sum of $3,518. The intervener alleged .that this w-as a mistake on the part of the master, in this: that said two notes only aggregated the sum of $3,500, and that' both of said notes bore interest from date at the rate of 10 per cent, per annum, and provided also for 10 percent. attorney’s fees, which said notes (principal, interest, and attorney’s fees) the intervener understood, from said report, were intended to be allowed by said master as the amount due. Subsequently the JIansur & Tebbetts Implement Company et al. filed exceptions to the master’s report, alleging that the master has allow'ed the claim of the said intervener for the sum of $3,518, whereas said master should have disallowed said claim in toto. They averred, substantially, that the testimony established the charges made in their answ:er to Evans’ intervention, and they alleged, among other things, that it is incredible that Evans, with his means of knowledge, did not, at the time said $2,500 was loaned to Dupree, know that Dupree was then insolvent, and intended to defraud his creditors by the withdrawal of a large part of his assets, in the shape of notes and accounts.</p> <p>■ The court heard the exceptions filed by the intervener and the complainants, and on June 26, 1896, entered a final decree overruling complainants’ objection to the master’s report as to the $1,000 note, and interest thereon, and allowing Evans’ claim as to the same, and overruling the master’s report as to Evans’ claim on the $2,500 note, and interest thereon, and rejecting intervener’s entire claims as to attorney’s fees; from which action, so far as the same was against him, the intervener, Evans, has appealed. The assignment of errors is as follows: “(1) Because the intervener in this ease claimed that the note sued on, and for which he intervened in this cause, to wit, for $2,500, dated December 1, 1S96, was given him for a valuable consideration, and at said time he had no notice, actual or constructive, that said W. E. Dupree, the maker thereof, was insolvent, or contemplated insolvency, but regarded him as perfedly solvent, and good for his debts, and the uncontradicted evidence in this cause shows such to be the ease; and when said W. E. Dupree failed on the 3d day of December, ISÍlti, ho preferred said Win. AV. Evans for the amount of said debt, in the trust deed executed by him, in class A thereof, and said preference was valid, and a just charge against the property conveyed in .said trust deed; and the evidence not only fails to show that 'the said intervener, AVm. AV. Evans, had notice at the time of contracting said debt with said AV. E. Dupree that the said Dupree was insolvent, or contemplated insolvency, but conclusively shows that the said AAhn. AY. Evans had no notice whatever of the insolvency cf the said AA". E. Dupree, and did not know that he owed any debts at said time; and said indebtedness io Said AVm. AV. Evans was a valid indebtedness, and constituted a valid charge against the funds in (.he hands of the receiver in this cause, and should have been so adjudged l>y the trial court, there being no evidence of any kind or character 'to authorize Hie court in finding that said Wm. AV. Evans had either actual or constructive notice that said AV. E. Dupree was Insolvent or contemplated insolvency; and that the evidence showed conclusively that the said transaction was bona fide, and made in good faith by'the said AVm. W. Evans, and not witn the intention of assisting the said AAr. E. Dupree in defrauding his creditors. (2) Because the evidence in this cause showed conclusively that the claim of the said AVm. AV. Evans was secured in class A in the deed of trust, which created a valid and subsisting lien, io secure payment thereof, on the funds in the hands of the receiver, and should have been so charged and established by the judgment of the court in this cause. (3) This intervener shows that no contest was made of his claim in the hearing before the master appointed to hear and determine the intervention in this cause, and the objections filed in ihis court were not filed before said master, and he had no opportunity to pass upon the questions raised in this cause by the comida inants; and said complainants had no right to raise said questions in ihis cause, because they were not raised before the master, on the hearing of this intervener, and therefore were waived by complainants. (4) The court erred in refusing- to allow attorney’s fees provided for In the note in favor of intervener, Wm. W. Evans, secured in class A of the deed of trust, because said attorney’s fees were part of the debt secured; and no exceptions were filed, either before the master in chancery, or in the court of final trial, to said attorney’s fees, as such, but the exceptions filed by complainants to the claim set up by the intervener were to the whole claim of intervener, on the ground that it was fraudulent, and did not except to the attorney’s fees as such.”</p>

Final hearing upon pleadings and proofs of a hill in equity to set aside a written contract between Fatten and Glatz, who will ho hereinafter referred to as “plaintiff” and “defendant,” respectively, the other plaintiff and the other defendant being substantially nominal parties only.

This was a bill filed by Isaac A. Braddock against Henry 8., Samuel K., and Joseph Louchheim, to set aside transfers of property, and for injunction and an accounting. On final hearing.

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

<p>This was a proceeding brought in the above-entitled case against A. W. Von Schmidt to punish him for an alleged contempt in violating an injunction.</p>

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

The plaintiff in error brought this suit against the defendant in error to recover damages for personal injuries received while in the employ of the defendant.

<p>Recitals in Municipal Bonds — Action by Bona Fide Holder — Estoppel.</p> <p>Where the recitals contained, in bonds issued by a township in payment of its subscription to the stock of a railroad company show a full and complete compliance with the law in pursuance of which they were issued, such township is estopped from setting up a defense inconsistent with such recitals, when sued on such bonds by a bona fide holder for value, who purchased without notice of defect or irregularity in their issue, and in reliance upon such recitals and the validity of the bonds.</p>

<p>Petition for Writ of Mandamus to Settle Bill of Exceptions.</p>

<p>1. Rights of Chinese to Remain in This Country — Certifícate as Evidence.</p> <p>While, in all cases of entering the United. States, and in the case of laborers within the country when the act requiring registration was passed, the official certificate is indispensable, and the sole evidence of the right to enter or remain, in all other cases the status of the person at the time the inquiry is made may he shown by any affirmative proof satisfactory to the judge, justice, or commissioner before whom he is taken.</p> <p>2. Same — Children of Laborer Admitted as Students — Acquiring Status.</p> <p>Where children of a Chinese laborer are lawfully permitted to enter this country as students, and thereafter remain continually in the public and private English schools of the country, they thereby acquire the status of students, and the occupation of the father is not imputable to them.</p>

This is a habeas corpus, brought to inquire into the cause of detention of relator, an alien, who has recently come to this country to join her husband, who has been here several years. Eelator is accompanied by a child under five years of age.

<p>1. Attorney’s Lien — Securities Pledged to Secure Loan — Priority.</p> <p>Attorneys employed hy a railroad reorganization committee to advise and assist them in the conduct of the business intrusted to them have a lien for their services on the securities deposited with the committee by the parties to the reorganization agreement, superior to the claim of one to whom such securities are afterwards pledged to secure a loan.</p> <p>2. Same--Reorganization Scheme — Purchase of Bonds and Contract to Pay Vendor’s Attorneys.</p> <p>A railroad reorganization committee obtained a large block of bonds, and, as part of the consideration therefor, agreed to pay the owner’s attorneys for their services in opposing the plan of reorganization. These bonds and the other securities deposited with the committee were then deposited as collateral security for a loan previously negotiated with a party to the reorganization agreement. The reorganization scheme failed, and the amount of the distribution to such bonds and securities was not sufficient to pay the claims of the attorneys and the pledgee. Held, that the claim of the attorneys was prior to that of the pledgee.</p>

<p>1. Bill of Exceptions — Necessity in Habeas Corpus Cases.</p> <p>On appeal from the order of a district judge in a habeas corpus case, no bill of exceptions is necessary.</p> <p>3. Army and Navy — Enlistment of Minors.</p> <p>Rev. St. § 1117, requiring the consent of the parents or guardian of a minor, to validate his enlistment into the army, is for the benefit of the parent or guardian, and gives no privilege to the minor.</p> <p>8. Same — Desertion by Minor.</p> <p>A minor who enlists in the army without the consent of his parents or guardian, and subsequently deserts, is amenable to a court-martial, as a deserter.</p>

This was an indictment against Stonewall Tingle for using the mails to defraud. The indictment is as follows: The United States of America, Northern District-of Texas, to Wit: In the District Court of the United States within and for the Northern District of Texas.

The grand jury for the district of Maryland returned as “a true bill” an indictment against the plaintiff in error, charging “that .Tesse L. MacDaniel, late of said district, yeoman, heretofore, to wit, on the thirteenth of December, in the year of our Lord one thousand eight hundred and ninety-six, at Baltimore, in the district aforesaid, was then and there engaged in conducting, promoting, and carrying on, by means of the post-office establishment of the United States, a…

<p>1. Criminad TAw — Evidence—Subsequent Crimes — Reuevancy.</p> <p>On a trial for mailing lewd and lascivious letters, in which the only issue for the jury is whether they were sent through the mails or in some other way, evidence of subsequent illicit relations between the writer and the addressee of the letters is irrelevant.</p> <p>S. “Witness — Cross-Examination.</p> <p>A witness may not be cross-examined upon a subject concerning which he has not testified in chief, unless such cross-examination is in the form which lays a proper foundation for impeachment.</p> <p>3. Same — Impeachment.</p> <p>When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party who put the questions.</p>

This was an action in replevin by William M. Morrison against P. F, Pettibone & Co. to recover certain sheets and plates alleged to be infringements of plaintiff’s copyright of a photograph, under section 4965, Rev. St. The case was heard on motion to set aside verdict rendered in favor of the plaintiff.

<p>This was a suit in equity by the Regina Music-Box Company against Emile L. Guendet for alleged infringement of a patent for an invention.</p>

This was a suit in equity by the Kinnear & Gager Company against the Capital Sheet-Metal Company for alleged infringement of a patent for improvements, in metallic ceilings. The circuit court rendered a decree for complainant (81 Fed. 491), and the defendant has appealed.

This was a suit in equity by the Westinghouse Electric & Manufacturing Company against John Mustard for alleged infringement of a patent. The cause was heard upon an application by defendant for leave to amend his answer, and for a stay of proceedings, and leave to lile a cross bill praying an injunction against the further prosecution of the suit.

<p>1. Patents — Anticipation—Method of Repairing Asphalt Pavements.</p> <p>The Perkins patent, No. 501,597, for an improvement in the method of repairing- asphalt pavements, consisting in subjecting the spot to be repaired to heat until the material is softened, then adding new material, and smoothing and burnishing it, was anticipated by the Crochet French patent of June 11, 1880, which describes substantially the same method.</p> <p>2. Same — Invention.</p> <p>It being known that heat may be used to soften a Trinidad asphalt pavement at a spot to be repaired, and that rock asphalt and bitumen pavements could be mended by heating the top layer, removing the material with a notched hoe, then adding new material, and tamping in the ordinary way, there was no invention in applying this method to the repair of Trinidad asphalt pavements.</p>

Tills was a libel in personam by Swift & Oo. against Furness, Withy & Oo., Limited, owner of a steamship, for delay in delivering certain beef shipped by such steamship.

<p>This was a libel in admiralty by William Craig to recover damages for a, personal injury sustained on board the steamship Sara-toga. ,</p>

<p>1. _ Maritime Liens — Sale of Cargo-Disposition of Proceeds.</p> <p>Where one, under contract to purchase the entire catch of a schooner upon a proposed seal-hunting expedition, lent money to her owner and master upon the security of a mortgage on the schooner, and later advanced money for the wages of her crew, and for necessary repairs and supplies in a foreign port, held, that the proceeds of sale of the catch should be first applied to reimbursement of the latter advances, in so far as they were justified, rather than to payment of the loan.</p> <p>S. Seamen — Wages—Forfeiture.</p> <p>Where shipping articles provide that members of the crew shall not be entitled to wages until return to the home port, their refusal, in a foreign port, to proceed with the voyage, no excuse for such refusal appearing, works a forfeiture of their right to wages.</p>

The libel was filed by William F. Baker against the Cyclone in January, 1895, to recover damages in the sum of $925 sustained by the canal boat Frank R. Gibson by reason of the alleged negligence of the Cyclone. In June, 1895, the Fitzpatrick was brought in on petition filed by the Cyclone alleging that the accident was the result of the negligence of the Fitzpatrick which caused the damages to the canal boat, not only, but also to the Cyclone in the sum of $1,191.

This was an action by William J. Bell and others against the Florida Central & Peninsular Bailroad Company to recover possession of land and damages for the occupation and use thereof. There was a judgment for plaintiffs in the circuit court, and defendant brings error.

<p>1. Res Adjudicata — Federal and State Courts.</p> <p>The decision in an interpleader suit in a state court, that no lien was obtained by a certain attachment levy, is binding upon the federal court to which the original attachment suit has been removed.</p> <p>3. Attachment — Title to Attached Property.</p> <p>A federal court does not, by virtue of an attachment levy, draw to itself the question of the title of the attached property, so as to prevent the state courts from deciding such question in a suit subsequently brought for that purpose.</p>

<p>This was a suit in equity by Frances M. Tustin against Phoebe D. Adams and Spencer Jacobs to determine the rights of contesting homestead claimants to public lands.</p>

This is a bill in equity by Grace Masury against the Arkansas National Bank and others to cancel a sheriff’s sale of shares in a corporation, and to declare and foreclose a lien on the stock. The cause was heard on demurrer to the bill. This cause is before the court on a demurrer to the bill and amended bills.

<p>1. Mortgages — Foreclosure—Deficiency—Constructive Service.</p> <p>Where, in a foreclosure suit, constructive service only is had. upon the defendant, while a deficiency decree may not be entered, the deficiency after sale constitutes a valid and subsisting indebtedness, which may be recovered by appropriate action.</p> <p>2. Bankruptcy — Secured Creditor — Determination of Value of Mortgaged Property.</p> <p>Rev. St. § 5075, prescribing the manner in which the value of mortgaged property must be determined in order that the mortgagee may be admitted as a creditor against the bankrupt estate of the mortgagor, applies only to eases where bankruptcy proceedings are pending. Hence, where a foreclosure suit has been begun, and prosecuted to judgment, after an order discharging bankruptcy proceedings against the mortgagor, and returning him his property, the mortgagee is entitled to prove his claim for the deficiency against the estate upon the subsequent setting aside of the order of discharge.</p> <p>3. Election to Rely upon Security.</p> <p>Where a mortgage creditor of a bankrupt obtains, from the federal court in which the bankruptcy proceeding is pending, permission to foreclose his mortgage in a state court, upon condition of waiving any personal claim for deficiency, but for good reason, and without laches, fails to prosecute liis suit to judgment, such creditor or his assignee is not hound as by an election to rely solely upon the mortgaged property, so as to preeludi' him from being subsequently admitted as a creditor against the estate of the bankrupt on account of the same debt.</p> <p>4. Same -Discharge Set Aside — Intervening Bights.</p> <p>A partnership and the individual partners having been adjudged bankrupt, one of the partners, by agreement of all parties in interest, including iirm creditors, was discharged, and his individual property returned to him; the agreement providing that his individual creditors should liave the same right to proceed Cor the collection of their debts as If no bankruptcy proceedings had ever been had. Under this agreement, a secured creditor foreclosed his mortgage; hut, the service being by publication, no decree for the deficiency could he entered. Subsequently the discharge was sot aside by the court, aud the debtor’s individual property again made subject to the claims of iirm creditors. Held, that the deiiciency claim ol' the individual creditor was entitled to he paid out of such property in preference to the claims of firm creditors.</p>

<p>1. Mortgages — Provisions Binding upon Bondholders.</p> <p>A mortgage and the bonds and coupons secured thereby are to be construed as one contract, and provisions in the mortgage as to the method of distribution of the proceeds in case of foreclosure sale, although not foxind in the bonds, will bind the bondholders where there is nothing in the bonds inconsistent therewith.</p> <p>2. Same — Foreclosure Sale — Discretion of Court.</p> <p>Where a mortgage is foreclosed in equity, the court is not bound to decree a sale in strict accordance with the terms prescribed in the mortgage for the execution of the power of sale therein contained, hut should exercise a sound discretion, having due regard to the interest of all parties.</p> <p>3. Same — Method of Sale — Apportionment of Proceeds.</p> <p>Where a single mortgage, given by a railway company to secure three series of bonds, each of which constituted a first lien upon one of the three divisions of the road, and a second lien upon the other two, was foreclosed in equity, held, that the three divisions should not he sold separately, nor should the property be offered both in separate divisions and as an entirety, and the most advantageous bid accepted; but the entire property should be sold as an entirety, and the proceeds apportioned among the bondholders of the three classes according to the relative value of tli ■ three divisions as found from the evidence. 82 Fed. 344, affirmed.</p> <p>Purnell, District Judge, dissenting.</p>

This was a suit in equity by the Oliver Finney Grocery Company against R. A. Speed and others. The cause was heard on an application for a temporary restraining order.

This was a suit in equity hv the Fairfield Floral Company against. W. J. Bradbury, postmaster at Fairfield, Me. The cause was heard on a motion for injunction pendente lite.

This was a bill in equity by the Atlas Glass Company against the Ball Bros. Glass Manufacturing Company. The cause was heard on a motion to set aside the service on defendant.

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This was a creditors’ bill by Samuel Thomas against the East Tennessee, Virginia & Georgia Railway Company, which suit was consolidated with the foreclosure suits of the Central Trust Company of New York against the same defendant. Henry H. Jngcrsoll filed an intervening petition for attorney’s fees. From the decree allowing such compensation, this appeal is taken.</p> <p>The record is a voluminous one In this ease, hut the facts material to the disposition of the present appeal are, briefly, these: Samuel Thomas filed his bill against, the East Tennessee, Virginia & Georgia Railway Company, June 2-1, 1892, In which he claimed that he was a creditor of that company, owning a floating' debt of over $400,000, and alleged, also, that he was a large stockholder. The bill was brought as a creditors’ bill for all those who chose to come in. It alleged the hopeless insolvency of the railway company, and that it was liable to he seized for debt, and the railway system dismembered thereby, and the value of the property materially impaired, and asked for a receiver for the railroad property. Receivers were appointed under this bill, and took possession of all the defendant’s railway and other property, and- operated the road. Subsequently, on the 3d day of March, 1893, the Central Trust Company of New York filed two bills in the same court to foreclose mortgages on the property of the East Tennessee, Virginia & Georgia Railway Company. The suit of Thomas was consolidated with these suits for foreclosure of the mortgages, and the cause proceeded to judgment, and the property was sold by order of court. At the sale of the property under the decree it was bought in by the committee of reorganization, and the sale confirmed to a new corporation, called the “Southern Railway Company,” on the 14th of July, 1894. The suit of Thomas was not prosecuted in the interest of the general unsecured creditors, and nothing seems to have been done in that direction. That bill seems to have been brought and controlled solely to have a receiver appointed, and to prevent waste and the depreciation of the property, and in the interest of the mortgagees, and the compensation of counsel who filed that bill was paid out of the purchase money of the mortgaged property. Prior to the sale of the railway property a number of creditors had intervened in the. consolidated cause, and, upon the suggestion of counsel for the unsecured debts that therb^was property in the hands of the receiver which was not covered by the mortgages, the court, on the day on which the sale of the mortgaged property was confirmed, made an order of reference to Joshua W. Caldwell, Esq., as special master, with direction to ascertain and report what property was not covered by the mortgages and the value of said property, both real and personal. In this order the special master was directed, after notifying W. A. Henderson, counsel for the receivers, and H. H. Ingersoll, counsel for the creditors not secured by mortgage, to hoar any proofs offered by either party, and report the result of the investigation. The special master under this reference made investigation, and reported a considerable amount of real and personal estate which had not been covered by either of the mortgages foreclosed, and included therein a short road, about six miles in length, and known as the Tennessee Valley Railroad. The par of the stocks and bonds thus reported was a very large amount, but it was really of little value. The property which was thus reported and subsequently made subject to the unsecured debts was sold, and realized about $50,000. On the 17th of September, 1895, the appellee filed an intervening petition, asking compensation for his services as attorney out of the fund made subject to the payment of the unsecured creditors. This intervening petition was answered by the East Tennessee, Virginia & Georgia Railway Company and the Central Trust Company of New York, in which it was denied that the appellee was entitled to any compensation out of the fund. The court on the same day the petition was filed referred it to H. H. Taylor, as special master, to hear proof and report on the matters of the petition, — whether or not he was entitled to any compensation, and, if so, the amount thereof. The special master, Taylor, heard evidence, and reported on July 3, 1896, that the appellee was entitled to compensation, and fixed it at $2,500. Exceptions were filed to this report by the appellee, and also by the Central Trust Company and the Southern Railway Company and C. H. Coster. The several exceptions were subsequently heard by the court, and the exceptions of the Central Trust Company and others were overruled, and the exception as to the amount of the allowance to appellee sustained, and his compensation increased to $3,300, and that sum allowed him. From this decree allowing said compensation the present appeal has been taken.</p>

<p>1 Checks — Nonpresentment—Effect.</p> <p>Default in presenting a check, as distinguished from a bill of exchange, .is excused by absence of prejudice to the drawer.</p> <p>2. Same — Distinguishment from Bill of Exchange — Particular Instrument.</p> <p>An instrument drawn by the cashier of a national bank in California upon a national bank in New York, in the following form: “Pay to the order of-, —:— dollars,” — held to be a check, not a bill of exchange.</p> <p>3. National Bank — Powers—Guaranty of Debt.</p> <p>An agreement by a national bank, to guaranty the payment of a debt of a third party, solely for his benefit, is ultra vires.</p> <p>4. Guaranty — What Constitutes — Particular Case.</p> <p>A promise by a bank to pay any checks that may be drawn upon it by a certain person is not a certification of such checks, but a guaranty.</p> <p>5. Checks — Certification without Funds — Liability,</p> <p>A bank certifying a check without funds is not liable except to a bona fide holder.</p> <p>6. National Bank — Accommodation Indorsement.</p> <p>Accommodation indorsements or acceptances by a national bank are ultra vires, and void in the hands of holders with notice.</p> <p>7. Same — Ultra Vires — Estoppel to Raise Defense.</p> <p>A bank is not estopped to deny its authority to make an ultra vires promise, where it has not received the fruits of the transaction, and where the promisee had notice of the facts giving rise to the illegality.</p> <p>8. Illegal Contracts — Means of Execution.</p> <p>Negotiable instruments executed as a means of carrying out an illegal contract are void in the hands of holders with notice.</p> <p>9. National Bank — Ultra Vires Contract.</p> <p>The defendant, a national bank in California, agreed with the plaintiff in New York to pay any checks drawn upon it by one B. Upon the faith of this promise, plaintiff honored several such checks, which were paid in the following manner: Defendant made its cashier’s checks upon the C. Nat. Bank, in New York, at which bank it had no funds, and sent them to plaintiff, at the same time sending the C. Nat. Bank drafts on B. to cover its checks. Later, certain of these cashier’s cheeks proved worthless, the drafts not being collectible, and were not presented to the O. Nat. Bank; but no prejudice to defendant by reason of such nonpresentment was shown. Held, the promise of the defendant bank was ultra vires, and void as to the plaintiff, he being chargeable, under the circumstances, with notice of the facts giving rise to the illegality.</p>

This cause comes here on writ of error to review a judgment of the circuit court, Southern district of New York, in the amount of $3,-773.90, entered upon the verdict of a jury. See 81 Fed. 326. The plaintiff in error was defendant below. The facts are as follows: The duly-authorized agent of the plaintiff shipped on October 3, 1895, two horses belonging to plaintiff from Portland to Pawtucket. The horses were killed in an accident upon the road of defendant.

<p>1. Assignment of Errors — Reference to Entire Charge — Evidence Admitted.</p> <p>Under rule 11 of the circuit court of appeals (21 C. C. A. exi., and 78 Fed. cxi.), requiring the assignment of errors to quote the full substance of evidence alleged to have been erroneously admitted or rejected, and to set out the part of the charge referred to totidem verbis, assignments that “the court erred in permitting evidence as shown in bills of exceptions numbers two and three,” which errors can only be ascertained by a careful reading of a voluminous record, and that “the court erred in its charge,” etc., referring to marked lines and numbers in the written opinion for instructions erroneously given and refused, will not be considered.</p> <p>2. Misapplication of.National Bank Funds — Aiding and Abetting — Death of Principal.</p> <p>The death of the principal before indictment is no obstacle to the prosecution and punishment of one charged with aiding and abetting an officer; clerk, or agent of a national bank to abstract, misapply, or embezzle the funds thereof, in violation of Rev. St. § 5209, which makes such offense a misdemeanor.</p> <p>3. Competency of Juror — Impressions and Opinions — Impartiality.</p> <p>A juror who says he has an impression or opinion as to guilt or innocence of defendant, formed from newspapers and rumors, that it would require evidence to remove it, but that it would yield to evidence, and that he can and will give the defendant a fair and impartial trial according to the evidence that may be adduced before him, is competent.</p> <p>4. Criminal Trials — Reading Indictment.</p> <p>Where an indictment contains many counts, all alike, except as to amounts of money and dates of misapplication, it is sufficient to read one count in full to the jury, explain the difference, and state the amount and date charged in each of the other counts.</p> <p>5. Two Indictments — Cases Consolidated — Numerous Counts — Verdict.</p> <p>One indictment in 3G counts charged defendant with aiding in the abstraction of 36 specified amounts of money, at 36 specified dates. Another indictment charged him with aiding in the misapplication of the same amounts, upon the same dates. The two were tried together, and the jury returned a verdict of “guilty as charged.” Held, that the verdict was definite, certain, responsive to the issues, and not a double conviction, the sentence imposed by the court being imprisonment for a less term than the maximum under any one count.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>Oleomargarine — Use in National Soldiers5 Home — Regulation by State.</p> <p>The. governor of the Soldiers’ Home at Dayton, Ohio, in serving to the inmates as food oleomargarine furnished by the government, is not subject to the law of the state prescribing the manner in which oleomargarine shall be used in eating houses. The legislature haying no power to regulate the conduct of such institution, the statute is to be construed as not applying thereto.</p>

This is a writ of error to review a judgment of the circuit court for the Eastern district of New York in an action against the United States, which was brought under the provisions of section 3 of the act of March 3, 1887 (24 Stat. ’505), known as the “Tucker Act.” The material facts found by the circuit court are as follows: In December, 1S94, the Dean Linseed-Oil Company, the petitioner, imported into the United States 11,944 bushels of linseed, or flaxseed, of 56 pounds…

This was a suit in equity by Samuel Castner, Jr., and Henry B. Cur-ran against W. H. Coffman to restrain defendant from alleged wrongful use of a trade-name. There was a judgment for plaintiffs, and the defendant prosecutes this appeal.

<p>This was a suit in equity by Bass, Ratcliff & Gretton, Limited, against Henry Zeltner Brewing Company, to restrain alleged unfair competition in trade.</p>

This was a suit in equity by Leopold Wallach and Moritz Wallach against William H. Wigmore for alleged infringement of a trade-mark or trade name. The cause was heard on a motion for preliminary injunction.

This was a bill in equity for infringement of letters patent No. 232,-207, issued to De Witt O. Putnam on September 14, 1880, for improvements in breaking-carts.

This was a suit in equity by the Welsbach Light Company against the Hex Incandescent Light Company for infringement, of a patent. The cause was heard on demurrer to the bill.

This was a suit in equity by the Regina Music-Box Company against Emile Cuendet for infringement of a patent for an improvement in music boxes.

This was a bill in equity by John N. Briggs against C. H. Duell, commissioner oí patents, to obtain a decree that complainant is entitled to a reissue of Ms patent, Xo. 367,267, for an apparatus for planing cakes of ice.

<p>Pat ents — Ka ti/way Switches.</p> <p>Ilie Brahn patent, No. 248,990, for an improvement in railway switches, relating particularly to the crossbar and lugs which serve to connect the pointed or movable rails of the switch, discloses patentable invention, but, in view of the prior art, must be restricted to the particular devices substantially as described. The claim is, however, infringed by a device made according to patent No. 308,373, which merely shows a variation in the form of the jaws.</p>

This was a libel in rem by James G. Barron and others against the steamer Mount Eden. The cause was heard on a motion to relax costs.

This was an intervention by G-. W. Hendry and F. B. Strong in the proceedings by the Black Diamond Coal-Mining Company against the steamer H. C. Grady and others. Hearing on exceptions to the allowance of docket fees to the proctor of intervener G. W. Hendry.

<p>This was a libel in rem by Charles Dioehet against the steamship Occidental to recover seaman’s wages.</p>

<p>This was a libel in rem by W. E. Woodall & Co. against the steamship Havana to recover a balance due for repairs.</p>

<p>SHirrixa— jRaaüLATiojís as to Steam Bouykjrs.</p> <p>ITider JLtev. St. § 4431, which provides that “every plate of boiler iron or steel made for use in Hie construction of steamboat, boilers shall bo so stamped in such places that the marks shall be left visible when such plates are worked into boilers,” it is not necessary that the builder oí a steamboat boiler famish a name plate, showing the name of the manufacturer, place where manufactured, and the tensile strength of the boiler, in the absence of a special contract calling for same.</p>

<p>1. Marins Insurance — Profits—Total Loss.</p> <p>Under a contract of insurance of the profils on a cargo of sugar “against total loss, only” there is no actual total loss of profits where any part, however small, of the cargo, is saved, and reaches the owner in condition to earn a profit; and in such case no recovery can be had.</p> <p>2. Same — Constructive Total Loss — Moibty Rule.</p> <p>In the United States the owner may abandon ship or cargo, and treat the loss as constructively total, when the damage exceeds 50 per cent, of the total value.</p> <p>8. Same — Abandonment.</p> <p>In cases of constructive total loss, abandonment is indispensable to recovery of insurance, except when it could not possibly be of benefit to the insurer.</p> <p>4. Same.</p> <p>Where insurance is upon the profits of a cargo, and not upon the cargo itself, a partial less cannot be converted by abandonment into a constructive total loss.</p>

This was a libel in rem by the Hills Bros. Company against the steamship Britannia to recover damages for delay in shipping goods.

This was a suit by the state of Minuesota against the Duluth & Iron Range Railroad Company, Walter F. Cobb, and others, to enforce a statutory declaration of forfeiture of certain lands, previously granted by the slate to aid in the construction of the railroad. The cause was heard on a motion to remand it to the state court from which it was removed.

<p>1. Circuit Court — Jurisdiction.</p> <p>A suit to stay an action on the law side of the court for recovery of lands, and to reform a deed thereto, is an ancillary suit, and the court has jurisdiction without regard to the amount in controversy.</p> <p>2. Reformation of Deed-Sufficiency of Evidence.</p> <p>The evidence showed that the only land owned by grantor was a tract of 250 acres in the Tierwester survey, while the field notes set out in the deed call for a tract of land of 100 acres in another survey, not then owned by grantor, and that, if the notes in the deed are reversed, they will substantially describe the 250 acres owned by the grantor; that, since the deed, the grantee and his successors have claimed and controlled the 250 acres in the Tierwester survey, while during this time the grantor or his successors have made no claim to it. Held, sufficient to sustain a decree, in a suit brought 50 years after the deed, that such deed be reformed to cover the 250 acres in the Tierwester survey.</p>

Apical from the Circuit Court of the United States for the District of Kentucky. This is a suit upon the intervening petition of (he ijouisville & Nashville Railroad Company and the Kentucky Central Railroad Company, filed in the circuit court for the district of Kentucky, in a consolidated suit in equity there pending, consisting of two original cases, one being brought by Samuel Thomas, a creditor of tlie Hast Tennessee.

Exceptions by J. Kennedy Tod, John G. Leiper, and the Northern Alabama Railway Company, as purchasers of the property of the Birmingham, Sheffield & Tennessee River Railroad Gompany at foreclosure sale, and by E. A. Hopkins, receiver of said company, to the master’s report, allowing fees and expenses to said receiver. The report was modified, and the Northern Alabama Railway Company appealed, and E. A. Hopkins filed a cross appeal.

<p>1. Administrators — Appointment—Jurisdiction—Pleading.</p> <p>One claiming title to a patent by assignment from an administrator of the former owner, appointed by tlie surrogate’s court of the city and county of New York, which is a court of limited and inferior jurisdiction, .must allege the facts upon which its jurisdiction to make the appointment was founded; and if the bill does not show whether the deceased died intestate, whether, at the time of his death, he was a resident of the city and county of New York, or whether he had any property there to be administered on, it is subject to demurrer.</p> <p>2. Same.</p> <p>The mere averment that one was duly “appointed” administrator is not sufficient to show his authority as such, for his power arises only frqm the issuance of letters of administration to him.</p>

This is an application by the appellant, Davis, in the United States circuit court for the Eastern district of Texas at Beaumont, for an injunction restraining the appellee, the Port Arthur Channel & Dock Company, its agents and employes, from entering or remaining upon two certain tracts of land in which the appellant owns an undivided interest, and from the prosecution of any work or construction on any part thereof, or from doing any act in jeopardy of plaintiff’s right…

<p>1. Contracts — What Law Governs.-</p> <p>Complainants, husband and wife, consulted their attorney at Memphis, Tenn., about securing a loan on Mississippi real estate. He advised them to visit the office of a loan company at Vicksburg, Miss., with him, which the husband did. A bargain was struck, and papers drawn, which were sent to Memphis for the wife’s signature. Thé notes were payable in New York, and the money was sent from Vicksburg' to Memphis to complainants. The attorney received a commission on loans from the company. Held, that the contract was a Mississippi contract, to be construed by the laws of Mississippi.</p> <p>2. Usury — Solicitor’s Fees on Mortgages.</p> <p>Provision in a deed of trust for the payment of solicitor’s fees on default in no way affects the rate of interest thereon.</p> <p>3. Same — Provision against Taxation.</p> <p>Provisions in a trust deed giving the mortgagee the right to declare the principal due in case of taxation by the state of the deed or debt is not a means of evading the usury law.</p>

This was a suit in equity by Alonzo T. Rand, Rufus R. Rand, and Kate A. Ogle against the Columbia National Bank of Tacoma, Wash., Philip Tillinghast, its receiver, and James H. Eckels, as comptroller of the currency, to enjoin the prosecution of actions at law by said receiver to recover an assessment made by the comptroller on certain shares of the bank’s stock.

<p>This was a suit in equity, brought by Bobert W. P. Love against Albert G. Wheeler for an accounting as to certain stock delivered to Wheeler in trust by John O. Love, and assigned to complainant. The ruling is upon the hearing on proofs taken on both sides.</p>

<p>Equit* Pleading — Issue of Fact upon Traverse to Plea — Effect of Findings.</p> <p>Wliere an issue of fact upon traverse of a plea to a bill in equity is found for tbe complainant, be is entitled to a decree; but if such issue be found in part for each party, the defendant, under the thirty-third equity rule, is entitled to the benefit of the facts ss found for him, and the decree must be limited accordingly.</p>

This was an intervening petition, claiming damages of the receivers of the Atchison, Topeka & Santa Fé Railroad Company for personal injuries sustained by the petitioner while a passenger on a train.

<p>This was. a motion for a rehearing in the suit of the California & Oregon Land Company against Charles E. Worden, reported in 85 Fed. 94..</p>

<p>1. Negligence — Loading Ship.</p> <p>In loading staves onto a ship with a winch it is negligence for the winch-man to run the draft rapidly up the skid without stopping at the hatch side, and warning the men below.</p> <p>3. Contributory Negligence.</p> <p>A laborer employed in the hold of a ship in loading is not negligent in working directly beneath the hatch.</p> <p>3. Negligence — Liability of Shipowner.</p> <p>The owner of a ship under charter, who retains control, and furnished the officers and crew, is responsible for an injury to a stevedore engaged in loading, where such injury is caused by the negligence of the crew in operating the winch.</p> <p>4. Fellow Servants.</p> <p>Where a stevedore contracts to load a ship, the ship to furnish the winch - and man to operate it, the man oi>erating the winch and an employe of the stevedore are not fellow servants. 1</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Florida.</p> <p>This is hn action of ejectment brought by Anna Bell Robertson and others, in the United States circuit court for the Southern district of Florida, involving the title to a tract of land described in the declaration. The court below filed the following findings and opinion;</p> <p>. “This cause coming on for a trial before the court, the parties having waived a jury by stipulation duly filed herein, and the same having been fully heard by documentary and written evidence and the oral testimony of witnesses and by argument, and having been fully considered, the court finds as matters of fact:</p> <p>“First. That a grant of land five miles square on Indian river, at the mouth of San Lucie river, was made,by the representatives of the Spanish government to one Samuel Miles, July 19, 1813; that May 17, 1815, said grant was surveyed in a square form by one McHardy; that said grant and survey were confirmed in 1840 by the superior court of the United States for the district of East Florida to certain grantees of said Miles; that upon appeal to the supreme court of the United States said confirmation was set aside ns to the survey, but confirmed as to the validity of the grant, and a mandate Issued directing that a new survey he made of tho places and for a number of acres designated by said grant, of a form in accordance with the views expressed in the opinion in said case, namely, that the width on the river was not to exceed one-third of the length of the said survey hack from sa.id river [U. S. v. Hanson, 16 Pet. 196]; that in November, 1844, a new survey was ordered, which was made by the surveyor general through his deputy, Houston, and returned .Tune 14, 1845; that such survey was also in a square form, and not in accordance with the mandate of the supreme court, and was rejected by the presiding judge of said superior court; that another survey was ordered to he made in accordance with the principles stated by the supreme court and its mandate; that on the 26th day of April, 1850, John M. Hanson et al. filed in said superior court a petition praying that said petitioners might be permitted to locate the number of acres contained in said grant in parcels in any land office in the state of Florida; that on the 18th day of April, 1851, the United States attorney for said district filed his answer to such petition, representing that a new survey had been made, and that petitioners should be limited to such location; that there was filed by A. M. Randolph, a deputy surveyor, in 1851, a plat and description of the claim of John M. Hanson and others as tho claim designated in the ‘register of mill grants in the name of Samuel Miles’; that such survey contained 18,121.22 acres, and was not approved by the surveyor general until November 25, 1871; that there was-found recorded in the chancery book of the United States district court for the Northern district of Florida, under date of April 15, 1851, what purports to he a decree of confirmation of the said survey made by A. M. Randolph to the extent of sixteen thousand acres, and orders that the said lands thus located, surveyed, and described be decreed -to be fully and finally confirmed to said claimants; that such decree was not signed by the presiding judge, and purported to be entered three days before the answer of the United States attorney praying the decree was filed; that it was not the practice at that time for the judge to sign decrees; that subsequently, April 14, 1880, upon the petition of one Jonathan O. Greely, assignee in bankruptcy of. said John M. Hanson, alleging that no survey had ever been made as required and directed by the supreme court of said grant, an order was made that the surveyor general of the state of Florida do survey said Spanish grant to Samuel Miles in accordance with the mandate and opinion of the supreme court, and file a plat and map of said survey in said cause; that such survey was made in accordance with such order, and a survey and plat was filed in this court in this cause containing 16,006.88 acres, and that said survey and plat was in all respects approved and confirmed upon the application of Rufus K. Sowell et al.; that application was duly made to the general land office of the United States, and a patent issued from said office giving and granting unto John M. Hanson, John J. Hedrick, Bernardo Segui, and Dionisia Segui, and their heirs and assigns, the land described in said foregoing survey, provided that such patent should not interfere with any valid adverse right to tho same, or he construed to preclude a legal investigation by a proper judicial tribunal; that said John M. Hanson, John J. Hedrick, Bernardo Segui, and Dionisia Segui were the original grantees of said Samuel Miles; that said patent was issued the 4th day of September, 188Í); that December 1. 1890, Sarah Van Wagenen and others, among whom wore all of the plaintiffs in the present suit, fifed their petition alleging tho previous survey by A. M. Randolph, and the alleged decree confirming said plat and survey, and praying that all subsequent action by Jonathan O. Greely, as assignee in bankruptcy oí John M. Hanson, and others, and the survey and plat made under the order of April 14, 1885, and the decree of confirmation thereof, he vacated and set aside as null and void on account of the court’s having no jurisdiction, it having exhausted its jurisdiction by its said previous action, and for other relief, to which a demurrer was filed, which, upon being fully heard, was sustained, and, no application to amend being made, said petition was dismissed.</p> <p>“And tlie court further finds, as a matter of fact, that subsequent to the survey of said grant of 1851, certain lands calimed [claimed! to have been surveyed as such grant in the survey of Randolph, to the extent of 17,970.97 acres, were entered upon tlie tax books of tbe state of Florida for the county of Dade, and assessed as of unknown ownership, for the years 1877, 1878, and 1879, and were put at auction for sale for such taxes on the 0th day of September, 1880, and, there being no bidder, were reported as sold to the state of Florida for the sum of $292.05; and on the 1st day of May, 1S82. W. D. Barnes, comptroller of said state, did transfer and assign such certificate to Sarah A. Falligant, Sarah A. Van Wagenen, Mary R. Gilbert, Fannie E. Danier, Anna Bell S. Robertson, and Eleetra O. Falligant, plaintiffs herein, and upon the presentation of said certificate to the clerk of the said county of Dade he made a deed of said 17,970.97 aeres to said Sarah A. Falligant and others as aforesaid.</p> <p>“And the court further finds, as a matter of law, that the action of the court in ordering and approving the survey of Hopkins, as is shown in evidence, and in the matter of the petition of the plaintiff herein in the case of Van Wagenen et al. against Sewell, is binding upon this court, and that all such rights of the plaintiffs herein as against the defendant, as relates to and depends upon the said survey of Randolph in 1851, and the confirmation thereof, and the said survey of Hopkins, and approval and confirmation thereof, of 1889, have been heretofore determined and settled, and such questions are res judicata by the action of the court in the said case of .Van Wagenen against Sewell.</p> <p>“And the court further finds, as a matter of fact, that the defendants, claiming for Rufus K. Sewell, went onto and took possession of the eastern one-third part of said grant in November, 1889, and has held possession of the same as his one-third interest in said grant ever since, and paid taxes on the same, and has ousted plaintiffs from any interest in said one-third of said grant.</p> <p>“And the court further finds, as a matter of law and fact, that the grant to Samuel Miles was never legally segregated from the public domain at the time when the taxes were assessed on the grant, and prior to the time it was sold, as cited in the tax deed put in evidence by the plaintiffs, and said alleged sale and said tax deed were null and void.</p> <p>“And the court further finds that the plaintiffs herein are by proper and legal conveyance jointly entitled to a fee-simple title in and to the possession of one undivided third part and interest in the entire tract, lot, or parcel of land situated in the county of Dade, state of Florida, and known and described as follows, to wit: [Then follow same description of land as described in the declaration]; and that for this one-third undivided part of such lot or parcel of land, together with their costs herein, they are entitled to judgment.”</p> <p>Opinion.</p> <p>“The plaintiffs in this case claim title and possession of the property in dispute from two sources: First, the plaintiffs claim to be the heirs of the grantee of one-third of the entire grant; second, they claim under a tax deed from the state of Florida for the nonpayment of unpaid taxes.</p> <p>“The case was tried by the court upon stipulation of parties, in one of which was stipulated that Miles, the original grantee, conveyed one undivided third interest through John J. Hedrick; in another it is stipulated that Hedrick’s interest purports to have been conveyed to John G. Falligant, and tlie plaintiffs are his heirs and devisees. It was further stipulated that, in 1890, Rufus IV Sewell claims to have gone upon the east one-third of the land, and claimed it as his third, and has claimed to pay taxes on that portion since 1891 or 1892. The title of Rufus If. Sewell is shown by a regular deed of conveyance from John M. Hanson, and a deed of conveyance from said Rufus If. Sewell to the defendant Henry E. Sewell.</p> <p>“First the defendant pleaded the general issue of not guilty, but on the 27th day of January, after the case was called for trial, the defendant filed an additional plea, viz. that the defendant had never denied the right of the plaintiffs to the undivided one-third interest of the grant.</p> <p>“The court has found that the tax title under which the plaintiffs claim is void, but that they are entitled jointly to an undivided one-third interest in fee simple of the entire grant, and that they had been so ousted from the possession of the eastern one-third of the grant as to entitle them to judgment upon this suit. Exceptions to such findings have been taken.</p> <p>“It Is contended by the defendant that the plaintiffs, having claimed the whole of the premises, are not entitled to judgment unless found to be entitled to the whole. The court docs not consider the law to be so determined in this state. The common-law action of ejectment has been done away with, and the statute which has taken its place plainly provides that, in any suit for ejectment, the judgment shall determine and declare the interest that the plaintiff may have in the premises claimed. The court considers that wherever any interest is found in the plaintiff, not more than that claimed by him he is entitled to judgment for that amount, although it may be of less quantity than that sued for. This view is sustained by the text and a large number of authorities cited in Waite’s Action and Defenses (volume 3, p. 123).</p> <p>“It is also claimed by the defendant that there is no evidence which would justify the findings of fact that the plaintiffs were entitled to an undivided one-third interest in the land. The language of the stipulation that Hedrick’s interest purports to have been conveyed to John (1. Falligant can only be considered as equivalent to a declaration and stipulation that there is evidence which tends to show that Hedrick’s interest has been conveyed to John G. Faliigant, and this, taken in connection with the plea of the defendant, that he had never denied that the complainants were entitled to a one undivided one-third interest in the property, the court considers may be deemed as an allegation and an admission of the title in the plaintiffs to that amount. Any other construction would appear to be simply holding out an inducement to plaintiffs to waiwj introducing testimony upon that point, a.nd then taking advantage of such ©mission.</p> <p>“The only other ground of exception is to the finding of fact t,ha.t the defendant did oust plaintiffs from any possession which would justify this suit.</p> <p>“The sixteenth stipulation is that Ilufus K. Sewell claims to have gone upon the eastern one-third of the land and claimed It as his one-third. The defendant, Henry E. Sewell, testifies that, he, in 1889, went onto this, and claimed for his father a part of this land, and his improvements were upon the northeastern portion. There can be but one conclusion drawn from this stipulation and testimony, taken together, and that is that the defendant herein claimed that which is stipulated his father claimed, and since that time been bolding the land with the same understanding that it is stipulated that Ilufus 1C Sewell claimed; that is, he claimed the eastern one-third of the land as his third. This is considered a reasonable and necessary conclusion that the land was held, claimed, and possessed as an entire interest of that eastern one-iliird instead of the one undivided third of the entire lot which it is admitted he was entitled to; and such possession of the one-ihird it is considered fully justifies the finding that the plaintiffs had ousted the defendant from any interest in that eastern one-third.</p> <p>“It is also contended by the defendant that he having admitted by his plea that the plaintiffs were entitled to one undivided third interest, and the court not having found them entitled to any greater interest than it is so admitted, the costs should not have been adjudged against him herein. Had such plea of admission of the right of the plaintiffs been filed at an earlier stage of the case, it might have been considered more favorably; but until the case was called for trial the defendant had stood upon his plea of not guilty, which, under the statute, is held to admit both his possession anti adverse claim. It is true that a parly can. by admission of the riglus of the plaintiff at any time in the suit, prevent a judgment for subsequent costs, but at no time will such action be held to affect the costs which had already been incurred up to that time. In this case the late filing of such ydea cannot be considered as depriving the plaintiffs of their right of costs up to that time, as certainly no opportunity was given for them to dismiss their suit or obtain their rights in any other manner previous to tha.t time.</p> <p>“It is ordered, therefore, that the judgment be so far amended as to make the defendant liable to the cost of suit up to the time of the filing of that plea; and the motion for arrest of judgment and a new trial is denied.”</p>

<p>This was a libel by John Crawley against the steamship Edwin to' recover damages for personal injuries.</p>

<p>This was an action by Liebbe Ticktin against the Fidelity & Casualty Company of New York on an accident insurance policy. Defendant demurred to the petition.</p>

<p>1. Foreign Administrators — Actions.</p> <p>An action commenced in Virginia by a foreign administrator without first taking out letters of administration in that state is a mere nullity, and no life can be imparted to it by subsequently procuring such loiters, and then setting up the fact by amendment of the pleadings.</p> <p>% Pleading — Amendment.</p> <p>Iter. St. § OVJ, authorizes amendments only in cases properly instituted, and then only in matters of form. It does not go to the extent of allowing the court, where an action was originally brought without authority or sanction in law, to so amend the original writ and declaration as to make ■new parties plaintiff, and thereby sustain an action that was originally brought without authority to institute the same.</p>

<p>1. Habeas Corpus — Issuance oj? Wrtt.</p> <p>Where a petitioner, serving a sentence of a state court, has delayed nearly two years to apply for a writ, and his right of appeal in the state court is not yet barred, habeas corpus will not issue unless his case is clear.</p> <p>а. Federal Question — When Presented.</p> <p>The action of a judge of a state court in erroneously sentencing one convicted of crime under a statute not applicable to his case presents no question for the federal court.</p> <p>8. Same — Ex Post Facto Laws.</p> <p>When a statute providing for the sentence to prison of persons convicted of crime has been construed by the highest stale court to apply to offenses committed prior to its enactment, the question whether it violates any provision of the federal constitution is direcily in issue, on habeas corpus, to release one sentenced thereunder for a crime so committed.</p> <p>4 Ex Post Facto Laws — Construct] on of Statutes.</p> <p>In order to render legislation unconstitutional as ox post facto, it is not necessary to show that it must be detrimental to all persons charged with offenses; it is sufficient that it materially alters their condition in a manner which may be detrimental to some.</p> <p>5. Same — Indeterminate Sentence Law.</p> <p>The Massachusetts indeterminate sentence statute (St. 1895, c. 504, §§ 1-3), declaring that the court “shaJI not fix the term of imprisonment,” il taken literally, is unconstitutional, if applied to offenses committed prior to its enactment.</p> <p>б. Same.</p> <p>Quaere, whether the indeterminate sentence law of Massachusetts (St. 1895, e. 504, §§ .1-3), which is applicable to all sentences pronounced after its enactment, regardless of what the law was when the offense was committed, is invalid as an ex post facto law.</p> <p>7. Habeas Corpus — Practice on Appeal.</p> <p>A writ of habeas corpus was denied, but, there being a constitutional question of great doubt involved hi the application, the petitioner was given an opportunity to apply for an appeal to the supremo court, under rule 34, with an intimation that thereupon the order would bo amended and a writ directed to issue, to be discharged upon its return, with leave to apply for admission to bail pending the appeal.</p>

This was an indictment against Julius H. Stege and others for shipping whisky inclosed in an unbranded barrel. The case was heard on a motion to quash the indictment.

<p>This was a suit in equity by the American Graphophone Company against Cleveland Walcutt for alleged infringement of two patents for recording and reproducing speech and other sounds.</p>

This was a suit in equity by Frank A. Byram against- defendant Friedberger for infringement of letters patent No. 23,880, granted December 25, 1894, to Frank A. Byrskn, for a design for trimming for ladies’ underwear.

This was a suit in equity by Henry Brinton against Jarius Kutz and Ellen Diefenderfer, co-partners trading as the Boss Knitting-Machine Works, and James L. Eck, for alleged infringement of a patent.

<p>1. Privileged Communications — Attorney and Witness.</p> <p>Communications between a party litigant or his counsel and one whose sole connection with the case is that of a witness, whether expert or not, called to testify by the party, are not privileged.</p> <p>2. Same — Patent Causes — Expert Employed by Party.</p> <p>The rules of privilege applicable to communications between attorney and client, or counsel and associate, govern communications of a party to patent litigation or his counsel, with an expert in the art in question, employed by the party to manage the litigation in his behalf, or with such an expert employed as assistant to counsel, in so far as he acts as such assistant, and not as a witness.</p>

<p>1. Maritime Liens — When Existing — Injury to Stevedore.</p> <p>A laborer employed by a stevedore who has contracted to load a vessel has no right to proceed in rem against the vessel i'or a personal injury received in the course of such employment, where there is no defect in the vessel’s machinery, and no negligence on the part of her officers.</p> <p>2. Master and Servant — Fedhow Servants — -Stevedores.</p> <p>A member of a stevedore’s gang operating the engine used for hoisting cargo into a vessel is the fellow servant of a member of the same gang engaged in stowing the cargo in the vessel’s hold, and the vessel is not liable for an injury to the latter resulting from negligence of the former.1</p>

<p>This was a libel in rem by Mattee Grasso against the steamship Lisnacrieve, to recover damages for personal injuries.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a lihel in rem by James W. Balano, master of the schooner Mabel Jordan, against the steamship Illinois, whereof the International Navigation Company was owner, to recover damages caused by a collision. The tug Gladisfen was subsequently made a co-defendant, on the petition of the claimant of the Illinois. The district court, after a final hearing on the merits, found the Illinois solely in fault, and decreed accordingly. 65 Fed. 123; 84 Fed. 697. The claimant thereupon appealed to this court.</p>

<p>Final hearing in two actions, — one wherein the street-railway company is complainant, and the other brought by the trustee tor the bondholders, — each seeking a decree declaring null and void, in respect of the complainant, a purported ordinance of the defendant city entitled “An ordinance to regulate the rate of fare upon the street railways in the city of Milwaukee, and providing for the sale of packages of tickets thereon,” approved June 11, 1896, and to perpetually enjoin its enforcement.</p>

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

On motion for preliminary injunction to restrain the defendants from using the words “Our Country” as the designation of their manufacture of laundry soap, with the colors and form of labels on the packages shown in exhibits, bastid upon either of two grounds: (1) Infringement of complainant’s trade-mark “Old Conn try,” as applied to a brand of laundry soap; or (2) fraudulent simulation to palm off defendants’ goods as those of complainant’s manufacture.

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

The following statement is reprinted, from appellee’s brief: The appellee, the Board of Levee Commissioners of the Tensas Basin Levee District (whom we will hereafter designate as the “Levee Board”), brought suit in the district court of Richland parish, La., against the Louisiana, Arkansas & Missouri Railroad Company (which we will hereafter designate as the “Railroad Company”), to annul certain contracts and conveyances made by the Levee Board to tlie Railroad Company, of…

The original bill filed in this case November 18, 1896, alleges that the complainant Charles Storrow is a resident and citizen of Brookline, in the state of Massachusetts; that he brings this suit for himself and all others similarly situated and interested, to make themselves parties thereto, and complains of the Texas Compress & Manufacturing Association, a corporation, with its principal place of business in the county of Smith, state of Texas.

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

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill by the Morley Finishing- Machine Company, a corporation organized under the laws of Maine, against Oliver A. Miller, a citizen of Massachusetts, for specific performance of a contract. In the circuit court a preliminary injunction was granted, restraining the defendant from selling, assigning, or transferring certain patents owned by him, and which were alleged to be subject to the agreement sought to be enforced. From this order the defendant has appealed.</p> <p>The bill contains the following allegation, among others:</p> <p>(1) The plaintiff company is the owner of a number of United States letters patent covering inventions and improvements in tree feet or boot trees and boot-treeing machines, used by boot and shoe manufacturers in the finishing of boots and shoes, and was organized for the purpose of manufacturing tree feet or boot trees a,nd boot-treeing- machines embodying the inventions and improvements covered by said patents or such other patents as it might acquire, and selling or leasing the machines and appliances so manufactured. The defendant, Miller, is the owner of a large number of patents and rights in patents covering other inventions and improvements in the same line as those covered by the plaintiff’s patents, — -that is to say, in boot and shoe Trees or tree feet and boot-treeing machines and devices, to be used in connection therewith, and machinery to be used in the finishing of boots and shoes, and accomplishing the same or similar results as the boot trees and boot-treeing machines covered by the plaintiff’s patents, — and for some years past has been, and is now, engaged in manufacturing, in a shop or factory owned by him in said Brockton, boot trees and boot-treeing machines and devices, to be used in connection therewith under his said patents, and in selling or leasing the same; and such boot trees, boot-treeing machines, and devices manufactured by the defendant, Miller, are widely distributed in boot and shoe factories throughout the United States.</p> <p>The bill then enumerates certain patents as being among those owned by the defendant, Miller. The contract which the bill seeks to enforce related to these patents. It was negotiated in behalf of the complainant by Charles A. Sinclair, one of its directors, and was dated October 9,1897; being in full as follows:</p> <p>Memorandum of an agreement made this day, between Mr. O. A. Miller, of Brockton, Mass., 'and the Morley Finishing Machine Company, by Wm. B. Lewis, of Boston, president of said company, witnesseth as follows: In consideration of one dollar, and other valuable consideration, receipt of which is hereby acknowledged each to the other, the said Miller agrees to turn over and transfer his business in tree feet, tree-feet machinery, all patents, all machines, tools, and fixtures, and everything pertaining to the manufacturing of said machines and said tree feet, to the said Morley Finishing Machine Company or its representatives, and further agrees that he will not engage in any business, during the life of the said Morley Finishing Machine Company’s patent, that shall in any way interfere or injure said tree-feet business. In consideration and upon the promise of the said Morley Finishing Machine Company to take the necessary steps immediately to increase the capital stock of their company to three hundred and fifty thousand dollars, the said Miller to receive outright one hundred thousand dollars of this stock, and fifty thousand dollars to be put into the treasury of said Morley Finishing Machine Company. It is understood and agreed that the said Miller, in consideration of his turning over the above-mentioned business, patents, machinery, tools, and fixtures, and ’everything that .pertains to the business excepting his real estate, shall be elected manager of said business for the term of one year, receiving as compensation for his services five thousand dollars, payable in equal quarterly payments. It is further understood and agreed that the Morley Finishing Machine Company shall have the use, for one year from the date of this transfer, of the said real estate, power, and plant, and everything that pertains to the manufacturing of tree feet now used by the said Miller, free of expense to the said Morley Finishing Machine Company during that time, or for such less time as said Morley Finishing Company may occupy it. It is agreed by both parties to this agreement that this agreement shall be submitted to Messrs. Fish, Richardson & Storrow, who shall draw up an agreement,' which shall be signed by both parties to this agreement, which shall insure the faithful performance of everything outlined in this agreement; and it is further agreed that the agreement and transfer shall go into effect as of November first, eighteen hundred and ninety-seven. Witness our hands and seals, this ninth day of October, eighteen hundred and ninety-seven.</p> <p>William B. Lewis, President. [Seal.]</p> <p>Morley Finishing Machine Co.</p> <p>Oliver A. Miller.</p> <p>Witnesses:</p> <p>J. F. Springfield.</p> <p>Edw. C. Storrow.</p> <p>On October 11, 1897, Mr. Sinclair addressed the following letter to Mr. Lewis:</p> <p>Manchester and Lawrence Railroad, Boston, Mass., October 11, 1897. ■ William Lewis, Esq., President Morley Finishing Machine Company — Dear Sir: Mr. Miller has just been in to see me, and has called my attention to the fact that, in the agreement which we signed for the consolidation of our businesses, we omitted to state the fact that he was to receive cash for his merchandise. This was my understanding, and was what we agreed to do with Mr. Miller. Leaving it out of the signed agreement was an oversight., and it is entirely proper lie should have somcüiing to show what the understanding is. If you agree with me as to the intention, I will ask you to please indorse on tlie hack of this your approval. I think this will cover the necessity, as Mr. Fish is to draw up an agreement, and can embody this part of the transaction in the agreement which we will all finally sign.</p> <p>Yours, truly, [Signed] Chas. A. Sinclair.</p> <p>Indorsed as follows:</p> <p>My understanding is the same as outlined within, and we will, in the agreement to be drawn by 'Messrs. Fish, Richardson & Storrow, have it fully set forth.</p> <p>[Signed] William B. Lewis, President,</p> <p>Boston, Oct. 11/97. Morley Finishing Machine Company.</p> <p>The bill, after setting out the agreement of October 9, 1897, and alleging various steps taken on its part by way of performance, proceeded as follows:</p> <p>And the plaintiff company further avers that the said agreement of October 9, 1897, was submitted, as provided by its terms, to Messrs. Fish, Richardson & Storrow, counsel for tlie plaintiff' company, who have drawn up an agreement, a copy of which is hereto annexed, marked “Exhibit B,” which has been duly executed by the plaintiff company, and which by its terms secures the faithful performance by both parties of everything outlined in said agreement of October 9, 1897; and the plaintiff company has tendered said agreement so prepared and so executed by it to the defendant for his signature; and that the defendant has refused to execute the same, or to execute any other proper instrument turning over and transferring his said business, patents, and other property to the plaintiff, as provided in the said agreement of October 9, 1897, and has refused and still refuses to perform or carry out his said agreement in any respect, and has retained said business, patents, and other property for his own use, and has, by the use of said business, patents, and other property, carried on a business of manufacturing, selling, and leasing boot trees and olher boot-treeing machinery in compeütion with the plaintiff with great profit to him, but to what amount the plaintiff is ignorant and cannot learn save by tlie discovery herein prayed for, and to tlie great and irreparable damage of tlie plaintiff, and proposes to continue said wrongful acts. And your orator is informed and believes that the said defendant, contriving to injure the plaintiff, and to place it forever out of the power of this plaintiff to secure the performance of said contract, and wholly regardless of his agreement with tlie plaintiff, is secretly planning to sell tlie most valuable parts of said business, property, and patents to some person or persons to the plaintiff unknown; and, unless restrained by the order of this honorable court, tlie said defendant will actually make said salo and transfer, whereby the rights secured to the plaintiff by said agreement will be rendered worthless.</p> <p>The Exhibit B mentioned in, the bill as having been prepared by complainant’s counsel for the purpose of carrying the agreement of October 9,1897, into effect, is here set out in full:</p> <p>Exhibit B.</p> <p>This agreement and assignment, made this —■— day of--, A. D. 1897, by and between Oliver A. Miller, of Brockton, Massachusetts, and the Morley Finishing Machine Company, a corporation duly organized under the laws of the state of Maine, hereinafter called the “Morley Company,” witnesseth:</p> <p>That whereas said Miller, by the terms of a certain agreement dated October 9th, 1897, agreed to turn over and transfer to the Morley Company his business in tree feet, tree-feet machinery, all patents, all machines, tools, and fixtures, and everything pertaining to the manufacturing of said machines and said tree feet, excepting his real estate, for the consideration set out in said agreement; and whereas the capital stock of the Morley Company has been increased as provided in said agreement, except that by the agreement of the parties said, increase was to five hundred thousand dollars instead of to three hundred and fifty thousand dollars, and the Morley Company has issued and delivers to said Miller simultaneously herewith a certificate for ten thousand shares of its capital stock, of the par value of one hundred thousand dollars, and has in its treasury twenty thousand shares of its capital stock, of the par value of two hundred thousand dollars: Now, therefore, be it known:</p> <p>(1) That in consideration of the issue and delivery of the said stock to said Miller, and of the covenants and agreements of said Morley Company herein contained, and in further consideration of the sum of one dollar to him paid by the said Morley Company, the receipt whereof is hereby acknowledged, the said Miller does hereby grant, sell, assign, transfer, and deliver unto the said Morley Company his business in tree feet and tree-feet machinery, all machines, tools, and fixtures, and everything pertaining to the manufacture of tree feet and tree-feet machines and to his tree-feet business, except real estate owned by him.</p> <p>(2) For the consideration aforesaid, said. Miller does further sell, assign, transfer, and set over unto the Morley Company the following letters patent of the United States, together with the inventions therein shown and described, viz.: No. 317,470, granted to Abel D. Tyler, Jr., for boot tree. May 5, 1885; No. 319,354, granted to Abel D. Tyler, Jr., assignor to Oliver A. Miller, for boot tree, June 2, 18S5; No. 319,355, granted to Abel D. Tyler, Jr., assignor to Oliver A. Miller, for boot tree, June 2, 18S5; No. 319,356, granted to Abel D. Tyler, Jr., assignor to Oliver A. Miller, for boot tree, June 2, 1885; No. 347,309, granted to A. R. Wellman, assignor to Oliver A. Miller, for boot tree, August 10, 1886; No. 348,937, granted to Abel D. Tyler, Jr., assignor to Oliver A. Miller, for boot or shoe tree, September 7, 1886; No. 393,003, granted to Alfred B. Fowler, assignor to Oliver A. Miller, for boot-treeing machine, November 20, 1888; No. 395,668, granted to George E. Smith, assignor of one-half to William A. I-Cnipe, for last, January 1. 1889; No. 427,698, granted to Howard G. Locke, assignor of one-half to Brockton Last Co., for boot or shoe tree, May 13, 1890; No. 440,788, granted to Jothan H. Burbank, Lovina J. Burbank, administratrix, assignor to Oliver A. Miller, for boot tree, November 18, 1890; No. 441,115, granted to F. L. Stone and A. R. Wellman, assignors to Oliver A. Miller, for boot or shoe tree, November 18,1890; No. 441,116, granted to A. R. Wellman, assignor to Oliver A. Miller, for boot'tree, November 18, 1890; No. 441,117, granted to A. R. Wellman, assignor to Oliver A. Miller, for boot tree, November 18, 1890; No. 442,033, granted to Alfred B. Fowler, assignor to Oliver A. Miller, for boot-treeing machine, December 2, 1890; No. 442,034, granted to Alfred B. Fowler, assignor to Oliver A. Miller, for boot-treeing machine, December 2, 1890; No. 449.877, granted to W. Gordon, assignor of one-half to Oliver A. Miller, for last, April 7,' 1891; No. 452,142, granted to Howard G. Locke, William H. Cary,: and Joseph E. Kimball, said Locke assignor to Brockton Last Co., for shoe tree, May 12, 1891; No. 500,711, granted to W. Gordon, assignor to O. A. Miller, for last, July 4, 1893; No. 556,096, granted to W. Gordon and C. E. Gordon, for last, March 10, 1890; design No. 20,040, granted to Oliver A. Miller, for'ironing tool, September 15, 1896; No. 557,210, granted to H. G. Locke, assignor to O. A. Miller, for last, March 31, 1896; No. 559,492, granted to H. G. Locke, assignor to Brockton Last Co., for last, May 5, 1896; No. 508,326, granted to J. W. Barlow, assignor to O. A. MillerJ for last, September 29, 1895.</p> <p>Said Miller does also, for the consideration aforesaid, hereby sell, assign, transfer, and set over unto the Morley Company all his right, title, and interest in, to, and under any and all other letters patent (and the inventions therein shown and described), whether of the United States or of any foreign country, which pertain to tree feet and tree-feet machinery, especially including the following letters patent of the United States, viz.: No. 342,298, granted to Oliver I. Howe, for boot or shoe tree foot, May 18, 1886; No. 420,501, granted to Clarence A. Sumner, assignor of one-half to Oliver A. Miller, for boot or shoe treeing machine, February 4, 1890. And also the following foreign letters patent, viz.: English letters patent No. 0,709, dated June 2, 1885, to William It. Lake, on communication from O. A.'Miller; English letters patent No. 6,710, dated June 2, 1885, to William It. bake, on communication from O. A. Miller; English letters patent No. 7,974, dated May 22, 1890, to Alfred B. Fowler; English letters patent No. 18,029, dated November 18, 1890, to Henry H. Lake, on communication from O. A. Miller; French letters patent No. 169,302, dated June 2, 1885, to Oliver A. Miller; French letters patent No. 209,904, dated December 3, 1890, to Alfred B. Fowler; German letters patent No. 34,593, dated June 2, 1885, to Oliver A. Miller; German letters patent No. 34,687, dated June 2, 1885. to Oliver A. Miller; German letters patent No. 58,742, dated December 3, 1890. to Alfred B. Fowler; German letters patent No. 59,978, dated November 18, 1890, to Oliver A. Miller.</p> <p>And said Miller does also, for the consideration aforesaid, hereby sell, assign, transfer, and set over unto the Morley Company all his right, title, and interest in and to any and all applications for letters patent the inventions of which pertain to tree feet and tree-feet machinery, especially including the following applications for letters patent of the United States, viz.: Ser. No. 364,688, filed September 11. 1880, by Howard G. Locke; Ser. No. 453,749, filed December 1, 1892, by Howard G. Locke; application filed by George E. Smith for la.srs, assigned to O. A. Miller, July 22, 1895, recorded in United States patent office, Liber T&i, page 416; application filed by George E. Smith, for lasts, assigned to O. A. Miller, October 5. 1896, recorded in United States patent office. Liber O 54, page 269; application filed by Charles H. Saunders, for hinged last, assigned to O. A. Miller, August 11, 1896, recorded in United States patent office, Liber Kbb, page 168; application filed by Charles H. Saunders, for lasts, assigned to O. A. Miller, October 7, 1896. recorded in United States patent office, Liber W 5<t, page 111; application filed by Oliver A. Miller and Don C. Luce, for lasts, said Luce’s interest having been assigned to said O. A. Miller, July 3. 1897, recorded in United States patent office, Liber Fb«, page 199; application filed by John W. Barlow, for lasts, assigned to O. A. Miller, February 17, 1897, recorded in United States patent office, Liber Pbs, page 4; application filed by John W. Barlow, for lasts, assigned to O. A. Miller, February 17, 1897, recorded in United States patent office, Liber P&b, page 4.,</p> <p>Said Miller does hereby authorize and request the commissioner of patents to issue the several letters patent that may be granted on' such applications, or any of them, to the said Morley Finishing Machine Company, its successors and assigns. To have and to hold the said goods and chattels, letters patent, applications, and other property to the said Morley Finishing Machine Company and its successors and assigns, to its and their own use and behoof forever. :</p> <p>(3) For the consideration aforesaid, said Oliver A. Miller does hereby covenant and agree that he will permit the Morley Company to use and occupy, free of expense to the Morley Company, for one year'from November 1, 1897, his factory, power, plant, and everything that pertains to the manufacture of tree feet used by the said Miller on the ninth day of October, A. D. 1897.</p> <p>(4) For the consideration aforesaid, the said Miller does hereby covenant and agree that he will not engage in any business that shall in any way injure the said tree-feet business assigned and sold by these presents to the Morlev Company, until the expiration of the Morley Company’s letters patent No. 589,690, dated September 7, 1897.</p> <p>(5) In consideration of the foregoing transfers and assignments from and agreement of the said Miller, the Morley Company does hereby covenant and agree that said Miller shall be elected manager of its business for the term of one year from the first day of November, 1897, and that it will pay to said Miller for said period of one year a salary of five thousand dollars in equal quarterly payments, the first payment to be made February 1, 1898.</p> <p>(0) This instrument shall take.effect as of the close of business on the thirty-first day of October, A. D. 1897.</p> <p>In witness whereof, the said Oliver A. Miller has hereunto set his hand and affixed his seal, and the said Morley Finishing Machine Company has caused this instrument to be signed and its corporate seal to be hereunto affixed by ffm. B. Lewis, its president, and John F. Springfield, its treasurer, thereunto duly authorized, in duplicate, the day and year first above written.</p> <p>Morley Finishing Machine Company,</p> <p>[Corporate Seal.] By William B. Lewis, President,</p> <p>John F. Springfield, Treasurer.</p> <p>The restraining order (which by a subsequent order of the court became a preliminary injunction) was in part as follows:</p> <p>We therefore, in consideration thereof, enjoin and command you, each and every of you, that from and immediately after the receipt and notice of this, our writ, by you, or any of you, you shall not sell, assign, transfer, or incumber, or otherwise intermeddle with the title to any of the business and property used therein, and patents and patent rights subject of the contract between you and the said Morley Finishing Machine Company of October 9, 1897, and particularly shall not withdraw any money from said business, nor sell, assign, transfer, incumber, or otherwise intermeddle with the title to any of the following described patents and inventions, or the rights therein: [Then followed a long list of patents and pending applications for patents.]</p>

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

<p>This was an action by the administrators of Massena B. Erskine against Steele county, N. D., to recover on a county warrant.</p>

The action was brought by Lysander S. Logan, the' defendant in error, as executor of the last will and testament of Thomas J. Logan, deceased, to recover 810,000 and interest, alleged to be due upon a certain policy of insurance claimed ta have been issued by plaintiff In error, the Mutual Life Insurance Company oí New York, upon the life of Thomas J. Logan.

This was an action by David Murray against the Northern Pacific Bailroad Company to recover for land .taken for a right of way. Judgment below was given for plaintiff, and defendant brings error.

<p>1. Admiralty Appeals — Findings of Court Below.</p> <p>The circuit courts of appeals, in reviewing admiralty cases, are not limited to questions of law; but it is the settled practice of these courts to give great weight to the conclusions of fact by the trial judge, unless they are based on evidence manifestly insufficient; and in eases of conflicting testimony, apparently of equal merit, to follow the conclusions reached below.</p> <p>2. Salvage — Amount of Compensation.</p> <p>An award of $500 upon a salved value of $1,522.50 held excessive for services rendered by the first to arrive and most efficient, of a number of tugs which pumped water into a burning barge; the time occupied being about 6% hours, and there being no danger to life or property. The award should be reduced on appeal to $250.</p>

<p>1. Fees of Court Officers — Attendance and Per Diems.</p> <p>JEtev. St. §§ 574, 638, declare that the circuit and district courts sitting in equity or admiralty shall be deemed “always open” for the transaction of certain business. The act of March 3, 3887, forbids payment of per diems or attendance fees except for days “when the court is opened by the judge for business, or business is actually transacted in court,” etc. Held, that the clerk is entitled to attendance fees for days between regular terms on which he is required to attend, and does attend, on the transaction of business by the judge.</p> <p>2. Same — Clerk’s Fees — Dockets and Indexes.</p> <p>When, after docket entries, indexes, etc., have been made, a criminal case is transferred from one place of holding the district court to another, and then discontinued in the former place, the clerk is entitled to his docket and index fees therefor, although the costs have not been taxed at the place to which the case is removed.</p> <p>3. Same — Swearing Witnesses.</p> <p>Where the witnesses for both parties are sworn at the same time, pursuant to an order of the judge, the clerk is entitled to have his fees therefor paid by the government.</p> <p>4 Same — Affidavits of Indigent Defendants.</p> <p>The clerk is entitled to a 'fee of 10 cents each for filing and entering affidavits of indigent defendants in criminal cases, on which the court makes an order for summoning witnesses in their hehali.</p> <p>5. Same — Affidavits to Marshal’s Accounts.</p> <p>The clerk is entitled to fees for taking the affidavit of the marshal proving the accounts rendered hy him, since such proofs are for the convenience and protection of the government.</p>

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

<p>1. Depositions — Exhibits Separately Mailed — Not Irregular.</p> <p>No merit lies in attaching exhibits to depositions other than that of safety in preserving and identifying them as parts of the depositions. If this identification he made clear, and especially if it be not denied that they are the exhibits in question, the exhibits cannot be deprived of their character as part of the depositions because they are, for convenience or for any other reason, mailed to the clerk in a separate package.</p> <p>3. Same — Indorsement of Exhibits.</p> <p>No formal certificate is necessary to be attached to exhibits in order to make them parts of the deposition in which reference is made to them. If the indorsements of the examining commissioner on the exhibits and depositions be made by the same person, and the exhibits are so described and marked by the commissioner that their identity is unmistakably established, this is sufficient</p> <p>3. Same — Refusal to Testify — Suppression of Testimony — Exceptions Delayed.</p> <p>The whole of a deposition may be suppressed on the ground that a witness has refused to answer a material question; but where no effort is made to compel him to answer, no notice given of an intention to move for suppression because of the refusal, and the depositions are subsequently received and opened by agreement, and two terms intervene before such a motion is made, it is then too late to urge it.</p> <p>4. Same.</p> <p>Rev. St. §§ 863, 864, providing for the manner and methods of taking depositions, apply to the taking of depositions within the United States, and have no application to foreign countries.</p> <p>5. Same — Failure to Object — Waiver.</p> <p>Objections to depositions because of informalities in the notice to take and in the certification, etc., are waived where the objecting party has consented to the issuing of the commission, and practically united with opposing counsel in executing it, and where no notice of the objections is given, or motion to suppress made, until the trial is in progress.</p> <p>6. Evidence — General Reputation — Particular Statements — Inadmissibility.</p> <p>Evidence to prove the general reputation of a person for integrity, honesty, and fair dealing is governed by the same principles that apply in a case of the impeachment of a witness for truth and veracity; and particular statements made by persons with whom the party has had financial dealings, -based on the failure or inability of the said party to meet hiá pecuniary obligations, especially when made by persons living remote from the accused, are inadmissible.</p> <p>7. Same — Acts Admitted Alleged to be Fraudulent — Similar Transactions Irrelevant,</p> <p>Where acts are admitted which are alleged to be fraudulent, it is irrelevant to prove other similar transactions with other persons in order to show a fraudulent intent on the part of the accused.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>This was an action by Lida M. Áshenfelter against the Employers’ Liability Assurance Corporation, Limited, of London, England, to recover upon a policy of accident insurance. In the circuit court a verdict was directed for defendant, and judgment entered accordingly, to review which the plaintiff sued out this writ of error.</p>

<p>1. Account — Weight of Evidence.</p> <p>Where, in an action for the cost of erecting a building, defendant has had possession of plaintiff’s itemized account for several months, its fail-lire to question'any it cun thereof at the trial is strong evidence that the account is correct.</p> <p>2. Building Contract — Construction—Release of Surety.</p> <p>A building contract provided (hat, if the contractor should fail to supply a sufficiency of properly skilled workmen or of materials of the proper quality, or to prosecute the work with promptness and diligence, the owner might, upon securing a certificate of the architect to the fact of such failure, and after giving three days’ notice to the contractor, enter upon the premises and finish the work. Held, that such provision contemplates a case where the contractor claims to be complying with his obligation, and not a case where the contractor, before doing any substantial part of the work, absolutely abandons it, and voluntarily surrenders the premises to the owner for its completion. Held, also, that neither the failure to secure the architect’s certificate and give the three days’ notice to the contractor, nor the waiver of them by the contractor, under such circumstances, will release the surety on the contractor’s bond.</p> <p>8. Contractor’s Bond — Surety—Notice of Breach.</p> <p>In the absence of a provision in the bond requiring it, a surety is not entitled to any formal notice of a breach of the contract by the principal, before the institution of a suit.</p> <p>4. Building Contract — Construction.</p> <p>A building contract provided that, upon failure by the contractor to perform its conditions, the owner “shall be at liberty * * * to provide any such labor or materials, * * * and to enter upon the premises and take possession, for the purpose of completing the work, * « * of all materials, tools, and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor.” Held that, upon a breach of the contract, the owner could complete the building himself, and need not employ some other party to do so.</p> <p>5. Alteration of Building Contract-Liability of Surety.</p> <p>A building contract provided that upon a failure by the contractor to perform the contract, the owner might complete the building at the contractor’s expense. Held that, after the abandonment of the contract by the contractor, the fact that the owner in completing the building used some materials different from those specified in the contract, due allowance being made for difference in price, did not constitute such an alteration of the contract as would release the sureties on the contractor’s bond.</p> <p>6. Breach of Building Contract — Pleading.</p> <p>A building contract, under which the owner had the right to complete the building upon default by the contractor, provided that the expenses incurred by the owner should be audited and certified by the architect, whose certificate should be conclusive on the parties. Held that, in an action by the owner for expenses so incurred, the failure of Hie owner to obtain such certificate could not be raised by the general denial.</p>

This was an action by William E. Ball, a citizen of Kansas, against Anna M. Warrington,, a citizen of Pennsylvania, to enforce an alleged liability of defendant asa stockholder in a Kansas corporation.

This was a petition by Lewis E. Stanton to recover from the United States certain fees claimed to have been earned by him as United States attorney. The court below gave judgment in plaintiff’s favor for $1,496.82 (75 Fed. 357), and the United States have appealed.

<p>1. District Attorney — Fees—Clerk Hire.</p> <p>A district attorney is entitled to recover lor clerk hire. U. S. v. Stanton, 87 Fed. 098, followed.</p> <p>2. Same — Extra Services — Compensation.</p> <p>A district attorney is not entitled to extra compensation for services rendered in examining titles to sites for public buildings. II. S. v. Ady, 22 O. C. A. 223, 70 Fed. 359, followed.</p> <p>3. Same — Attending Court.</p> <p>Section 824 of tlie Revised Statutes, which allows compensation to a district attorney for each day oí the term where court is held at a place other than his place oí abode, is limited by the act of congress oí March 3, 1887 (24 Star. 509, 541, c. 302), to each day when the court is opened by the judge for business, or business is actually transacted in the court.</p> <p>4 Same — Examination ok Internal Revenue Cares not Prosecuted.</p> <p>A district attorney is entitled to compensation for services rendered in investigating violations of the customs laws reported to him by a collector in accordance with section 838 of. the Revised Statutes, and in which he determined that no prosecution should be instituted.</p>

<p>1. National Ranks......Officers — Certification of Checks Without Funds— Presumption of Knowledge.</p> <p>In a prosecution against a national hank president for unlawfully certifying checks, it is not error to instruct tlxe jury that the presumption is that he had knowledge of the condition of the account upon which the checks were drawn, where the same instruction cautions them that such presumption may he rebutted by evidence that the defendant did not in fact have such knowledge.</p> <p>2. Same — Willful Failure to Investigate.</p> <p>In order io convict a national bank officer of wrongfully certifying checks, it is not necessary to show that he had actual knowledge that the account against which the checks were drawn was not sufficient; it is enough if lie willfully refrained from investigation, in order to avoid knowledge.</p> <p>8. Evidence — Admissibility — Speculation by Bank Officer with Bank Funds.</p> <p>Upon the trial of the president of a national bank for certifying checks without funds, evidence of speculations by (lie cashier with funds of flic bank, with defendant’s knowledge, is admissible for its bearing upon the right of the latter to rely upon the former’s representations as to the state of the customer’s accounts.</p> <p>4. Same — To Establish Intent — Period of Time Covered.</p> <p>The period of time within which colla! eral transactions offered to show a guilty intent must have occurred is largely discretionary with the court.</p> <p>5. Same — Reputation for Honesty.</p> <p>Upon the trial of a national bank officer for official misconduct, evidence as to the defendant’s reputation for honesty and integrity should be limited to such reputation down to the time of the failure of the hank.</p> <p>6. Same — Reputation for Truthfulness.</p> <p>In general, where no attempt lias been made to impeach the defendant’s testimony, he may not add to the weight of his evidence by evidence of his general reputation for truthfulness.</p>

This was an action on the official bond of Elias B. Zabriskie, as melter and refiner of the United States mint at Carson City, Nev. Defendants demur to the complaint.

Mr. Rosenblatt opened for the defense, and read in evidence extracts from Tiffany’s History of United States Postage Stamps, tending to show that the postage-stamp system was adopted for the convenience of the public, and to enable all applicants to purchase the same, at wholesale or retail, for prepayment of postage.

This was a hill in equity by the Centaur Company against Frederick Killenberger for alleged unfair competition in trade. The cause was heard on an application for a preliminary injunction.

This was a suit in equity by James E. MacOoll against the Knowles Loom Works for alleged infringement of claim 1 of letters patent 'No. 570,259, issued October 27, 1896, to complainant for improvements in lappet looms.

This was a suit in equity by James R. MacColl against the Crompton Loom Works ior alleged infringement of letters patent Nos. 571),25!) and 570,260, both issued October 27, 1896, to the complainant for improvements in lappet looms. Claims 1 and 6 of the former patent and claims 1 and 2 of the latter were in issue.

<p>1. Patents — Invention—Controlling Switch for Electric Motors.</p> <p>The Oondict patent, No. 393,323, for a controlling switch for electric motors, the chief feature of which is that in passing from no current, or a very low one, to a higher current, the switch is so arranged as to momentarily introduce dead resistance coils into the circuit, and then cut them out again, so that in passing from one running point to another there is a reduction of energy, by means of which the motors are protected, and spark - ing, shocks, and other evils resulting from excess of current, prevented, covers a broad invention, and entitles the inventor to the uses thereof as developed in the subsequent development of the art.</p> <p>2. Same — Inebisgement.</p> <p>Claims 27, 28, 29, and 31 of this patent, which cover the broad invention above described, held infringed by one who, instead of placing the resistances in a certain definite series, as described in the patent, inserts the series in the place of one of the motors, and then shunts the motors. Claims 20, 21, and 22, which Cover certain minor features, also held infringed, and other claims held not infringed.</p>

<p>1. Patents — Presumption from Issuance.</p> <p>While ordinarily the presumption of validity from the issuance of a patent is entitled to some weight, yet very little, if any, effect should be given to it where the application was repeatedly rejected as exhibiting nothing new, and was finally obtained apparently by mere persistence of the applicant, and without any reason given for a change of views by the patent office.</p> <p>2. Same — Improvements in Cuffs.</p> <p>The Earle patent, No. 533,408, for improvements in cuffs, consisting in overlapping the band by the body portion along its connecting edge, whereby the band is alleged to stiffen the body portion, and hold the ends in firm and even relation to each other, is void for want of novelty and invention.</p>

<p>Patents — Effect of Withdrawal of Original Specifications.</p> <p>In Putnam’s patent, No. 232,207, for breaking-carts, the effect of tbe withdrawal of the original specifications after the application was re- ■ jected is to limit his patent to the specific invention described in his amended specifications, to wit, the construction of carts where the central portion of the straps extends “beneath the axle.” 80 Fed. 109, affirmed.</p>

<p>Patents — Infringement—Check Protectors.</p> <p>Tbe Ongley patent, No. 534,518, for improvements in check protectors, held infringed, as to the fourth claim, by a device consisting of the same combination of parts, and accomplishing the same result by the same method of operation, notwithstanding certain slight and colorable alterations.</p>

<p>Appeals in Patent Cases — Reversal—Preliminary Injunction.</p> <p>When an appellate court declares a patent valid and infringed, reverses the decree below, and remands the cause for further proceedings not inconsistent with its opinion, it does not follow as a matter of course that an injunction pendente shall issue; but, in the absence of any directions in regard thereto in the opinion or mandate, the matter rests in the discretion of the trial judge.</p>

<p>1. Maritime Law — Tort Committed on Foreign Vessel — What Law Governs.</p> <p>When a person employed as a seaman on a British vessel is injured on the high seas by the alleged negligence of the owner to provide ropes for the gear of the ship, or, if such ropes be provided, by the negligence of the master to replace faulty ropes with proper ropes thus suxiplied, and such seaman files a libel in rem in a district court of the United States to recover damages for such injury, the liability is measured by the British law. For such cause of action the British law does mot confer the right to an action in rem.</p> <p>2. Same — Jurisdiction.</p> <p>For a tort committed within the exclusive jurisdiction of a foreign country an action cannot, be maintained in this country, unless the action would be maintainable by the laws of both countries.</p>

<p>Libel by Thomas Ashton against the steamship Miami, James Lewis, claimant, to recover damages for personal injuries.</p>

This was a petition by Levi Hussey claiming payment, for services rendered, out of the proceeds, surplus, and remnants arising from the sale of the steam dredge Ho. 1.

This was a libel in rem by Daniel S. Williams and others against the schooner Frank Vanderkerchen to recover damages resulting from a collision.

<p>This was a libel in rem by Thomas Butler and others against the steamship Kansas to recover for the loss of goods shipped.</p>

This was a libel in personam by Charles A. Pettit, agent, against the board of chosen freeholders of the county of Camden, N. J., to recover damages for the detention of certain vessels by the breakage of a county drawbridge.

<p>The libel was filed hv the Lackawanna Transportation Company and the Delaware, Lackawanna & Western Railroad Company against the steam propeller Livingstone to recover damages for the loss of the steam propeller Grand Traverse and her cargo owned by the libelants.</p> <p>The libel alleges that the collision, which resulted in the sinking of the Grand Traverse and her cargo, occurred at half past 5 on the morning of October 19, 1896, near Colchester Light at the western end of Lake Erie. The faults which the libel avers against the Livingstone are, first, insufficient lights; second, failure to heed the signals of the Grand Traverse; third, failure to stop and reverse; and, fourth, starboarding when the vessels were only a quarter of a mile apart. The libel demands judgment for $50,000, the value of the Grand Traverse, and for $15,000, the value of her cargo.</p> <p>The Michigan Navigation Company, the owner of the Livingstone, filed an answer denying all allegations of negligence on the part of the Livingr stone and alleging that the Grand Traverse was at fault in the following particulars: First, she did not carry and display good and sufficient lights and at no time showed a red light on her port side; second, she had no proper or sufficient lookout; third, the persons composing her watch were incompetent and inattentive; fourth, she did not keep her course but negligently ported when danger of collision was imminent; and, fifth, she did not stop and reverse. The answer alleges that the Livingstone suffered damage in the sum of $6,850, which constitutes a just and equitable claim against the owners of the Grand Traverse.</p> <p>The Indemnity Mutual Insurance Company was the insurer of the coal lost upon the Grand Traverse, and, having paid the loss to the Delaware, Lackawanna & Western Railroad Company, the owner, was subrogated to the latter’s rights and intervened as libelant to protect its interest.</p> <p>At the time of the collision the act of congress passed February 8, 1895 (28 Stat. .645), was in force. The act provides “that the following rules for preventing collisions shall be followed in the navigation of all public and private vessels of the United States upon the Great Lakes and their connecting and tributary waters as far east as Montreal.”</p> <p>These rules, so far as applicable to the present controversy, are as follows: Rule third provides that a steam vessel when under way shall carry:</p> <p>“(a) On or in front of the foremast ~ * * at a height above the hull not less than” the beam of such vessel “a bright white light so constructed as to show an unbroken light over an are of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such character as to be visible at a distance of at least five miles.</p> <p>“(b) On the starboard side, a green light, so constructed as to throw an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam oh the starboard side, and of such a character as to be visible at a distance of at least two miles.”</p> <p>The rule also provides for a similar red light on the port side, and continues: “(d) The said green and red lights shall be fitted with inboard screens projecting .at least three feet forward from the light, so as to prevent these lights from being seen across the bow.</p> <p>. “(e) A steamer over one hundred and fifty feet register length shall also carry when under way an additional bright light similar in construction to that mentioned in subdivision (a), so fixed as to throw the light all around the horizon and of such character as to be visible at a distance of at least three miles. Such .additional light shall be placed in line with the keel at least fifteen feet higher from the deck and more than seventy-five feet abaft the light mentioned in subdivision (a).”</p> <p>The steering and sailing rules applicable are as follows:</p> <p>“Rule 17. When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision each shall alter her course to starboard, so that each shall pass on the port side of the other.”</p> <p>“Rule 23. In all weathers every steam vessel under way in taking any course authorized or required by these rules shall indicate that course by the following signals on her whistle, to be accompanied whenever required by corresponding alteration of her helm; and every steam vessel receiving a signal from another shall promptly respond with the same signal or, as provided in rule twenty-six: One blast to mean, T am directing my course to starboard.’ Two blasts to mean, T am directing my course to port.’ But (be giving or answering signals by a vessel required to keep lier course shall not vary the duties and obligations of the respective vessels.”</p> <p>“Rule 2<j. If the pilot of a steam vessel to which a passing signal is sounded deems it- unsafe to accept and assent to said signal, he shall not sound a cross signal; but in that case, and in every case where the pilot of one steamer fails to understand the course or intention of an approaching steamer, whether from signals being given or answered erroneously, or from other causes, the pilot of such steamer so receiving the first passing-signal, or the pilot so in doubt, shall sound several short and rapid blasts of the whistle and if the vessels shall have approached within half a mile of each other both shall reduce their speed to bare steerageway, and, if necessary, stop and reverse.</p> <p>“Rule 27. In obeying- and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.</p> <p>“Rule 28. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of a neglect of any precaution which may be required by the ordinary practice of seamen, or of the special circumstances of the case.”</p> <p>The rules of the board of supervising- inspectors in force at the time of the accident, which are applicable, are as follows:</p> <p>“Rule 1. When steamers are approaching each other ‘head and head,’ or nearly so, it shall be the duty of each steamer to pass to the right, or port side of the oilier; and the pilot of either steamer may be first in determining to pursue this course, and thereupon shall give, as a signal of his intention, one short and distinct blast of liis steam whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam whistle, and thereupon such steamers shall pass to the right or port side of each other. But if the course of such steamers is so far on the starboard of each other as not to be considered by pilots as meeting- ‘head and head,’ or nearly so, the pilot so first deciding shall immediately give two short and distinct blasts of his steam whistle, which the pilot of the other steamer shall answer promptly by two similar blasts of his steam whistle, and they shall pass to the left, or on the starboard side of each other.</p> <p>“Note. In the night, steamers will be considered as meeting ‘head and head’ so long as bolli the colored lights of each are in view of the other.”</p> <p>“Rule 3. If, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of rite other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by .giving several short and rapid blasts of the steam whistle; and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerageway until the proper signals are given, answered, and understood, or until the vessels shall have passed each other.</p> <p>“Vessels approaching each other from opposite directions are forbidden to use what has become technically known among- pilots as ‘cross signals’— that is, answering one whistle with two, ancl answering two whistles with one. In all cases, and tinder all circumstances, the pilot receiving either of the whistle signals provided In the rules, which for any reason lie deems injudicious to comply with, instead of answering with a cross signal, must at once observe the provisions of this rule.”</p> <p>“Rule 5. The signals, by the blowing of the steam whistle, shall be given and answered by pilots, in compliance with these rules, not only when meeting ‘head and head,’ or nearly so. but at all times when passing or meeting at a distance within a half mile of each other, and whether passing to starboard or port.</p> <p>“Note. The whistle signals of the above situations must be given in all cases, except as qualified by rule 3, Pilot Rules.</p> <p>“The manner of fixing the colored lights should be particularly attended to. They will require to be fitted each with a screen, of wood or canvass, on the inboard side, and close to the light, in order to prevent both being seen at the same moment from any direction but that of right ahead to two points abaft the beam.</p> <p>“This is important, for without the screens any plan of bow light would be ineffectual as a means of indicating the direction of steering. This will be readily understood by a reference to the preceding illustrations, where it will appear evident that in any situation in which two vessels may approach each other in the dark the colored lights will instantly indicate to both the relative course of each; that is, each will know whether the other is approaching directly, or crossing- the bows either to starboard or port.</p> <p>“This intimation, with the signals by whistle, as provided, is all that is required to enable vessels to pass each other in the darkest night with almost equal safety as in broad day.”</p> <p>Allusion was made at the argument and in the briefs to the steering and sailing rules of the dominion of Canada. It is not deemed important or proper to refer to these rules, first, because both the Livingstone and Grand Traverse were vessels of the United States and, therefore, governed by the act referred to, which is applicable to “all public and private vessels of the United States upon the Great Lakes;” second, because the Canadian rules have not been introduced in evidence and the court cannot take judicial notice of them; and, third, because there is no positive proof that the collision occurred in Canadian waters. The New York, 27 C. C. A. 154, 82 Fed. 819.</p>

This was a libel in rem by Henry A. Haines, master of the schooner John C. Haynes, against the steam tug Minnie, to recover damages caused by a collision.

<p>Collision — Canal Boat at Dock — Grounded Schooner.</p> <p>Tugs which towed a schooner alongside a canal boat lying at her dock immediately after discharging her cargo, and left the schooner grounded there, so that, on the going out of the tide, she listed against and injured the canal boat, held liable for the resulting damages.</p>

This was a creditors’ bill by the Plume & Atwood Manufacturing Company and the Bcoville Manufacturing Company against Lewis B. Baldwin, Isaac P. Baldwin, Eli Baldwin, Walter B. Baldwin, and Charles E. Wilmot, as executors of the last will and testament of Lemuel H. Baldwin, deceased. The cause was heard upon jileas to the bill filed by certain of the defendants.

<p>Mortgage on After-Acquired Property — Accounting—Decree Declaring Lien.</p> <p>A mortgage covering real estate, machinery, and “all the stock of cotton, raw, in process of manufacture, and manufactured goods,” on the mortgaged premises, and all which may he placed thereon, stipulated that until default the mortgagor may use and sell such cotton and goods, and receive the proceeds thereof. Üelct, in a suit for an accounting, that the mortgagee had no rights as to goods sold before the hill was filed, hut upon answer showing the amount of cotton and goods on hand, no rights of third persons intervening, she was entitled to a decree declaring her mortgage a lien thereon.</p>

<p>Mortgage — Foreclosure—Lease by Receiver — Right to Profits.</p> <p>Where a mortgage upon the property of a telegraph company is foreclosed by the trustee named therein, and ’a receiver appointed, who, with the consent of the court, leases all the mortgaged property to another company, the lessee Is entitled to rents accruing to the mortgagor, during the continuance of the lease, for use of the poles and wires, as against the trustee in the mortgage, who is the obligee in a bond given to secure such rents.</p>

<p>1. Appeals — From Interlocutory Orders — Final Disposition — Remandino</p> <p>On an appeal from an Interlocutory order the court has power to hear the whole ease, and to make final disposition of It; hut whore the record is insufficient or incomplete, the court will .only consider whether the interlocutory order was providently granted.</p> <p>2. Taxes — Property in Court’s Custody — Action Stayed.</p> <p>A court whose receiver is in charge of a railroad may properly allow an injunction pendente lite forbidding the state taxing officers to collect disputed taxes levied against a part, of the railroad property.</p>

This is a writ of error brought by the Boston & Maine Iiailroad upon a judgment of the circuit court against the Central Vermont Railroad Company as principal defendant, whereby execution for the amount of the judgment was awarded as well against the goods, effects, and credits of the defendant in the possession of the Boston & Maine Railroad, as trustee.

<p>Motion to Take Off Nonsuit.</p>

This was an action at law by Claflin & Kimball, an incorporated company, against the Mather Electric Company, to recover damages for breach of contract. The case was heard on demurrer to the complaint.

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

<p>Appeal from a decision of the board of general appraisers reversing a decision of the collector of the port of New York touching the duty on certain wrapper tobacco found packed in bales of filler tobacco, but not exceeding 5 per cent, of eacli bale.</p>

This was an application by Austin Dunham & Sons for a review of the decision of the board of general appraisers in respect to the classification for duty of certain goods imported by them.

<p>1. Adverse Claims to Mining Land — Jurisdiction—Federal Question.</p> <p>A suit brought in pwsunnec. of Rev. St. § 2326, based upon an adverse claim made upon the filing of an application for a patent for mining ground, is a suit arising under the laws of the United Stales, and is within the jurisdiction of the circuit court. 75 Fed. 37, affirmed.</p> <p>2. Same — Equitable or Legal Actions.</p> <p>Surfs brought in pursuance of Rev. St. § 2326, to determine adverse claims to mining ground, are in their nature equitable, and not legal, actions. 75 Fed. 37, affirmed.</p> <p>3. Relocation of Mining Claim — Extending Limits under New Name.</p> <p>A locator may relocate his mining claim, including additional vacant ground unclaimed by others, under a different name, and convey it by the designation of the last name.</p> <p>4. Right to Locate Mining Claim — Discovery of Lode or Vein.</p> <p>Seams containing mineral-bearing- earth and rock, discovered on a claim before its location, were similar to seams that had induced other miners to locate claims in the same district, and which by development had proved to be a part of a well-defined lode or vein containing ore of great value. Held a sufficient compliance with Rev. St. § 2320, requiring the discovery of a lode or vein within the limits of a claim before a valid location thereof can he made.</p> <p>Gilbert, Circuit Judge, dissenting.</p>

On the 4th day of January, 1.895, the comphihmnt brought its bill against the Ferris Siignr-Hmmfacturing Company, Elmitod, and procured the appointment of a receiver thereof. The bill was brought in behalf of Uie complainant, a creditor of the corpora I ion, and in behalf of all other creditors thereof who might join in the suit and contribute to the expense. The answer of the defendant company was a virtual confession of its insolvency.

<p>Appeal from tlie Circuit Court of the United States for the Eastern District of Texas.</p> <p>On the 11th day of October, 1897, the Guaranty Trust Company of New York, as trustee, presented to the Honorable David E. Bryant, in the United States circuit court for the Eastern district of Texas, a bill foreclosing a mortgage upon the Galveston City Railroad Company, appellee, for 81,000,000, principal, and interest, default having been made in the payment of the interest on the bonds issued in conjunction with said mortgage; and on the same day the court appointed a receiver, as prayed in said bill. On December 31, 189(5, the Galveston City Railroad Company borrowed of The Guaranty Trust Company of New York, acting in its own right, the sum of 850,000, for which the railroad company executed its note of that date, payable on demand to appellant or order, and deposited as collateral security for said note 75 6 per cent, second mortgage bonds theretofore executed by the Galveston City Railroad Company; being a part of a series of $150,000 of second mortgage bonds secured by a second mortgage executed by the Galveston City Railroad Company to the United States Mortgage & Trust Company of New York, and subordinate to the first or consolidated mortgage previously executed to appellant as trustee. The note provided. that, in case of the nonpayment of the same, appellant should be thereby authorized, at its option, to sell the said bonds, without notice, at public or pri vate sale, with the right to purchase the same free from any equity of redemption, and to apply the net proceeds to the payment of the note, and all other indebtedness of the maker. Payment of the principal of the note was demanded, and the note protested, on October 8, 1897; and public advertisement was thereupon made that appellant would sell at auction the bonds dexrosited as collateral security as aforesaid, at the New York Real-Estate Sales Rooms, the usual place for sales of securities at auction in the city of New York, on October 13, 1897, and notice thereof was sent by telegraph to the appellee; but, upon telegraphic request of appellee’s president, appellant postponed ihe sale. Afterwards, on or about November 15, 1897, the defendant having dene nothing towards the payment of said note, appellant advertised said bonds for sale on December 1, 1897, and notified defendant of the time and place of such proposed sale. About November 19, 1897, appellee presented to Judge Bryant, in chambers, at Paris, a petition in this cause, setting forth a copy of the note; alleged the purpose of appellant to sell the bonds on December 1, 1897, in accordance with the notice before mentioned; alleged that the institution of this suit, and the appointment of the receiver herein, had tended to depreciate and impair the value of said second mortgage bonds held as collateral. It is also alleged that the property of appellee, if properly administered, was ample for both the first and second mortgage bonded indebtedness; that the second mortgage bonds so pledged were assets of appellee, and as such subject to the receivership in this cause; and that the sale thereof should not be allowed without the order of the court herein. It was also alleged that such sale would probably enable appellant to bid in the bonds at a nominal figure, and proceed against the property of the appellee for the deficit; that appellee would be irreparably damaged by the sale of said bonds; that the course of dealing between the parties bad been sueb as to amount to an extension of said loan, but that, asido from that, appellants should not be allowed to take advantage of the situation, and dispose of said bonds at a depreciated price, resulting from its own action in obtaining the appointment of a receiver in this cause, etc. And the prayer was for an injunction prohibiting and restraining appellant from selling said bonds until the further order of the court. Upon this petition, Judge Bryant, on November 29, 1897, made an order granting the restraining order asked, with leave to appellant to at any time apply for dissolution of the same after five days’ notice to appellee, and the restraining order issued accordingly. On December 13, 1897, appellant filed a motion to dissolve the restraining order for the reasons therein stated, and gave notice to appellee that it would present said motion to Judge Bryant, at Tyler, on the 3d day of January, 1898, or as soon thereafter as said judge could hear the same. In support of said motion, it filed an affidavit of Henry A. Murray, treasurer of appellant, which is set forth in the record (and from it it appears that appellant holds the note set forth in the appellee’s petition for injunction, and the bonds 'therein referred to, as collateral), and stated the notice given, and the proceedings taken to sell the same, as hereinbefore shown, and that the bonds thus held as collateral were not assets of the appellee, but were its own obligations, and were not subject to the receivership in this cause, which extends only to the assets covered by the mortgage sought to be foreclosed herein. It is also denied that the course of dealing between the parties had been such as to amount to an extension of said loan, as stated in the petition for injunction. Subsequently, on January 5, 1898, appellee filed a reply to the motion to dissolve; and the court, after hearing, on the same day, refused appellant’s motion to dissolve said injunction, and ordered that it be continued and made perpetual, which order was assigned as error; and an appeal was taken, and brought to this court.</p>

<p>1. Powers of Corporation — Mode of Exercising — Limitation by Charter.</p> <p>A business corporation may exorcise all the powers within the 1'a.ir and reasonable inlent of the law under which it is organized, and, in doing so, may exercise a choice of means reasonably adapted to the end authorized, unless clearly limited to a particular method by its charter.</p> <p>2, Mortgage by Corporation — Challenge by Subsequent Mortgagee — Validity.</p> <p>The validity of a mortgage executed in good faith by a corporation, and consented to by it and all its stockholders, cannot lie successfully challenged as ultra vires by a subsequent mortgagee ivith notice, unless it is absolutely void, as wholly beyond the power of the corporation.</p> <p>8. Same — Mining and Manufacturing Corporation — Transportation Facilities — Mode of Securing.</p> <p>Under Kev. St. Ohio, §§ 3862, 3863, giving to mining and manufacturing corporations power to purchase or subscribe for so much stock of transportation companies as they may deem necessary to procure proper transportation facilities, such a corporation may mortgage its real estate to guaranty the bonds of a railroad company, in consideration of such transportation facilities, and to enable such company to provide the same.</p> <p>4 Same — Indebtedness in Excess of Capital — Subsequent Mortgagee.</p> <p>Kev. St. Ohio, § 3256, provides that a corporation may borrow money not exceeding the amount of its capital stock, issue its notes or bonds, therefor, and secure them by mortgage of its real or personal property, but does not declare indebtedness in excess of capital void. Held, that the mortgage of a corporation in excess oi its capital stock is not void as to a subsequent mortgagee with notice, if upheld by the corporation and its stockholders.</p> <p>6. Same — Subsequent Mortgagee — Estoppel.</p> <p>■ A subsequent mortgagee is estopped to question the validity of prior mortgages to which his mortgage is expressly subject.</p>

<p>1. Equity — Maxims.</p> <p>The "city of New Orleans purchased the drainage system then in process of construction from the contractor; paying therefor in warrants, and covenanting not to obstruct or impede, but to facilitate by all lawful means, the collection and application of the drainage assessments to the payment of the warrants. The city abandoned the work, and the supreme court of the state decided that the assessments were not enforceable, because the abandonment of the work had rendered it a detriment, rather than a beneiit, to the lands. Suit was brought against the city by a holder of the purchase warrants. Held: that, under the maxim “that equity looks upon that as done which ought to have been done,” the city must he treated as having done whatever was necessary to render the assessments available, and therefore as liable to account for the fund as if actually collected and in hand.</p> <p>S. Estoppel. a</p> <p>A city, by drawing warrants against a fund composed largely of assessments and judgments ngatnst itself as quasi owner of the streets and public atinares, etc., is estopped to deny the validity of those assessments and judgments.</p> <p>8. Municipal Corporations — Assessment of City Property for Local Benefits.</p> <p>A citj- is liable for special assessments against itself for local benefits to its streets and other public places, regardless of the rule that public property is exempt from taxation.</p> <p>4 Same — Increase of Debt.</p> <p>By an amendment to the Louisiana constitution, the city of New Orleans was prohibited from increasing its debt, except that it might issue drainage warrants under a certain contract then in process of completion. Held, that a purchase of works being built, and the issuance of warrants for the price, were within the exception.</p> <p>5. Same — Power to Contract.</p> <p>A municipal corporation which has enjoyed the fruits of a contract fairly made cannot, when called to account, deny the corporate power to make it.</p> <p>6. Limitations.</p> <p>A city bought property, and issued warrants against a fund in payment therefor, and undertook to collect the judgments and assessments belonging to such fund, and apply them to pay the warrants. Held, that the city could not avail itself of tlie plea of the statute of limitations against the holders of the warrants, based on the fact that the city had allowed the judgments to outlaw.</p>

This case was heard in the circuit court upon the pleadings and proofs; and thereupon a final decree was entered on February 23, 1897, for the complainant, decreeing letters patent, reissue No. 4,372, dated May 9, 1871, to Nelson W. Green, for improvement in methods of constructing artesian wells, to be a good and valid patent, and that the complainant recover from the defendant, as profits from its infringement of said patent, 811,425.87, with interest thereon from the date…

This was an action by E. G. Tourtelot, receiver of the Second National Bank of Grand "Forks, N. I)., against Catherine M. Finke, executrix of the estate of John B. Finke, to recover an assessment on certain shares of the bank’s stock which, belonged to John B. Finke in his lifetime. The case was heard on demurrer to the complaint.

<p>1. Drainagp¡ Warrants — Appointment ok Receiver — Liability ok City.</p> <p>By Act La. No. 80, 1871, ilio hoard of administrators of the city of New Orleans was authorized to make and collect drainage assessments, and hold the amount collected in trust for the payment of warrants issued for drainage work done by parties to whom the whole drainage work was by said act Intrusted. June 7, 1870, by authority of Act No. 16, 1876, the city purchased the drainage franchise and properly for $300,000, and issued drainage warrants therefor. In 1891 a receiver was appointed by the circuit court, to whom the city transferred the assets and property of the drainage fund. Held, that holders of warrants issued for such purchase are not restricted for their payment to funds in the hands of the receiver, but are entitled to a judgment against the city, to be paid out of the drainage taxes collected by it.</p> <p>8. Appointment of Receiver — Abatement of Pendtns Actions.</p> <p>The appointment of a receiver of the property of a debtor does not abate persona] actions pending against the debtor, and, as to such an action, the receiver has no status in court until made a party thereto on his own application; the plaintiff having a right to proceed to final judgment without him.</p>

<p>Í. Master and Servant — Railway Employe — Maintaining Safe Roadbed.</p> <p>No general duty rests upon a railway company to lay planks between the rails of its tracks; but if, for any reason, it does so, the work must be (lone and maintained in such a way as to he reasonably safe for persons rightfully upon the tracks and in the exercise of due care.</p> <p>2. Same— Evidence.</p> <p>Whore a railway company has accepted its street rights on condition that it will plank between its rails those portions of the public streets used by it, and one of its employés is injured by reason of an alleged defect in the planking; it is not reversible error to admit evidence of the condition upon which the company acquired its street rights.</p> <p>6. Same — Assumption of Risk.</p> <p>Where a railway employé, whose duties for two months have been to couple cars iu a railway yard a mile long and containing 22 tracks, was injured through catching his foot in a hole between the rails, which hole had existed for two months, the court is not, under the facts of this case, justified in holding, as a matter of law, that he had assumed the risk incident to such defect.</p> <p>4, Same.</p> <p>Before a court may presume, as a matter of law, that an employs assumes the risks incident to defective machinery or roadbed, It must appear that he accepted employment with actual knowledge of such defect, os continued in service after he knew or should have known of the danger.</p> <p>6. Same — Presumption of Knowledge.</p> <p>To justify the presumption that a railway employs knew of a dangerous defect in the roadbed, it must appear that the defect and its danger were obvious to one at all attentive.</p> <p>6. Same — Facts to be Considered by Jury.</p> <p>If defects similar to the one complained of existed at all similar places In the same railway yard, that fact should be considered by the jury as bearing upon the question whether an employé was chargeable with knowledge of such defect.</p>

This was an action brought in the circuit court for the Eastern district of Louisiana by John Wagner, a subject of the emperor of Germany, against the Illinois Central Railroad Company, a corporation created by the state of Illinois, to recover damages for personal injuries sustained by him in being kicked off a freight train by an employé of said company on the night of the 26th of February, 1896, in the suburbs of the city of New Orleans.

<p>1. Indians — Rbmovau ox Persons from Indian Country — Penalty xor Returning.</p> <p>By the act of June 30, 1834 (4 Stat. 730, § 10), the superintendent of Indian affairs and Indian agents and subagents are empowered to remove from the Indian country any persons found therein contrary to law. By the act of August 18, 1836 (11 Stat. 80, § 2), it is provided that any person thus removed who shall return shall forfeit 81,000. Held; that the latter act is not an amendment, but is a supplement, to the former one.</p> <p>2, Same.</p> <p>The act of June 30, 1834 (4 Stat. 730, §.10), authorizing the removal of persons from the Indian country, was supplemented August 18, 1856 (11 Stat. 80, § 2), by an act prescribing a penalty upon any person so removed who should return thereto. The act of 1834 also provided (4 Stat. 733, § 27) that all penalties provided for by the act should be collected in an action of debt a.t the suit of the United States, etc. Held, that the latter provision did not apply to the act of 1856.</p> <p>8. Same — Revision ox Statutes.</p> <p>The act of June 30, 1834 (4 Stat. 733, § 27), provided for the collection of all penalties accruing under “this act” by an action of debt, etc. The act. of August 18, 1S56 (11 Stat. 80, § 2), provided a penalty for an Infraction of the act of 1834. Upon revision the act of 1856 was printed under the same title with the act of 1834, as section 2148 of the Revised Statures. The section providing for the collection of the penalty (Rev. Sr. § 2124) was changed to provide for the collection of penalties under . “this title” instead of under “this act.” By Rev. St. § 5600, it is provided that no presumption of a legislative construction shall be drawn by reason of the title under which any particular section is placed by the revision. Held, that section 2124 does "not limit the right of the United States to an action of debt to recover the penalty prescribed in section 2148.</p> <p>4. ‘Penalties — How Collected.</p> <p>When a statute creating a forfeiture does not prescribe the mode of collecting it, either debt, information, or indictment will lie.</p> <p>5. Same — Construction of Statutes.</p> <p>Rev. St. § 3124, providing “that all penalties which shall accrue under this act shall be sued .for and recovered in an action of debt in the name of the United States before any court having jurisdiction of the same in any state or territory in which the defendant shall be arrested or found, one half to the use of the informer, and the other half to the use of the United States; except when the prosecution shall be first instituted on behalf of the United States, in which case the whole shall be to their use,” was not intended to limit the United States to an action of debt to collect the penalties provided, but prescribed the procedure in cases where the penalty was sought to be collected by an informer.</p> <p>6. Indians — Penalty for Returning to Indian Country after Removal.</p> <p>Indictment will lie to recover the penalty provided by Rev. St. § 2148, for the return to the Indian country of a person removed therefrom by the superintendent of Indian affairs or Indian agent.</p>

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

<p>Trade-Marks and Trade-Names — Unfair Compf.tttion.</p> <p>The mere use of a geographical name, in which there can be no technical trade-mark, unaccompanied by any imitation of labels, or other indicia, may constitute unfair competition, when adopted for the purpose of taking away another’s business and good will.</p>

<p>1. Patent Suits — Demurrer to Bill.</p> <p>On demurrer to a bill for want of invention, appearing on the face of a patent, it is not tne duty of the court to investigate the prior art.</p> <p>2. Same — Design for Horseshoe Calk.</p> <p>The Rowe patent, No. 26,587, for a design for a horseshoe calk, is not, on its face, so manifestly lacking in invention as to be declared invalid on demurrer to a bill for infringement.</p>

These were four suits instituted by complainant, Pelzer, against different defendants for alleged infringement of a patent for improvements in electrical fixtures. The causes were heard on motions for preliminary injunction.

This wíis a bill in equity by the Taber Bas-Relief Photograph Company and others against Theodore O. Marceau and others for alleged infringement of a patent covering a method of producing embossed photographs.

This was a suit in equity by the American Graphophone Company against Loring L. Leeds, James H. White, and Leroy W. Baldwin for alleged infringement of a patent for an improvement in recording and reproducing speech and other sounds.

<p>1. Patents — Invention.</p> <p>An improvement which consisted in pivoting the contact arm of an underrunning trolley system to a rotating support on the top of the car, to which the spring which presses the arm upward is also attached, rather than to the car itself, so that the arm may be swung from one end of the car to the other, required only mechanical skill.</p> <p>2. Same — Contact Devices foe Electric Railways.</p> <p>The Van Depoele patent, No. 495,383, for improvements In overhead contact devices for electric railways, is void, as to claims 11, 12, and 13, for want of patentable invention.</p>

<p>This was a suit in equity by the Westinghouse Air-Brake Company against the New York Air-Brake Company and others for alleged infringement of certain patents for improvements in air brakes.</p>

The complainant, below and appellant hero is engaged in the manufacture and sale of an automatic car coupler, generally known as the “St. Louis Coupler,” and made under and in accordance with reissued patent No. 10,941, dated June 26, 1888. The original patent was No. 369,195, dated August 30, 1887. Both the original and reissue were to Madison J. Lorraine and Charles T. Aubin.

This is a suit in equity by II. A. Christy & Co. against the tiygeia Pneumatic Bicycle Saddle Company (Walter B. Wentz, receiver) and William J. Bneeringer for alleged infringement of letters patent No. 582,444, issued January 15, 1895, to Henry A. Christy, for a bicycle saddle.

This was a suit in equity by the Union Switch & Signal Com pany and others against the Philadelphia & Beading Bailroad Company and others for alleged infringement of a number of patents relating to electric railway signaling.

<p>Patents — Infringement—Damages and Profits.</p> <p>Where complainant executed a license to defendant, but, after defendant began to manufacture thereunder, canceled the license, and defendant continued to manufacture and sell the goods, the measure of damages is not to be determined by the license fee, but by the actual profits of defendant.</p>

<p>1. Patents — Construction of Claims — Proceedings in Patent Office.</p> <p>A patentee should not necessarily be estopped by statements of his solicitor in explaining the claims; but where he deliberately acquiesces in the rejection of a broad claim, and substitutes therefor a narrower one, as a condition of securing the patent, he cannot thereafter insist on a construction .which will cover what was thus abandoned.</p> <p>2. Same — Electric Switches.</p> <p>The Gibbs patent, No. 517,100, for an improvement in electric switches of the form known as “snap switches,” covers a new and useful improvement, but must be limited to the precise construction shown.</p>

This was a prize proceeding instituted to procure the condemnation of the Spanish steamship Eita, which was captured by the auxiliary cruiser Yale on May 8, 1898.

These were libels filed’by the United States to procure the condemnation as prizes of war of tbe Spanish steamships Buena Ventura, Panama, Catalina, Miguel Jover, Pedro, and Guido, and their cargoes.

<p>1. Demurrage — Delay in Discharging — Charter Party.</p> <p>In a charter oí a vessel to carry railroad ties a i>rovision that from the time the vessel is reported ready not less than 1,500 ties shall be furnished per running day “for loading at port of loading,' and prompt dispatch for discharging at port of discharge,” entitles the ship to demurrage for delay in unloading caused hy other vessels being previously at the consignee’s clock, though, hy the custom of the port, vessels are obliged to take their turn.</p> <p>2. Same.</p> <p>If the master, after beginning to unload, intends to discontinue until security is given for demurrage, he should give such rimoly notice thereof as will enable the charterers to furnish the required security without; delaying the progress of the work, or adopt a means by which prompt discharge can he made and the lien of the vessel retained:</p>

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

<p>1. Patents — Invention.</p> <p>In a pairnt tor a bicycle saddle, no invention is involved in merely omitting a coiled spring at the pommel end of a prior construction.</p> <p>2. Same.</p> <p>The Duryea patent, No. 293,725, for an improved bicycle saddle (designed for the old high-wheel vehicle), is void because of anticipation by the Kelley saddle.</p>

<p>This was a suit in equity by the American Ordnance Company against the Driggs-Seabury Company for alleged infringement of a patent. The cause was heard on motion for preliminary injunction.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana..</p> <p>This cause arises from a collision on the night of January 27, 1897, between the steam yacht Argo, 101 feet long, 6 feet draft, and the Norwegian steamer Albert Dumois, a freight vessel, 210 feet long, and 17 feet draft, in a straight stretch of the Mississippi river, half a mile wide, and about 80 miles below the city of New Orleans. The Argo was under special charter of a newspaper company to make a quick trip to the mouth of the Mississippi river and return. She started about 7 o’clock p. m. on.that day, and had on board at the -time a master, who served also as a pilot; an engineer; a fireman; one deckhand; one steward, who served also as a cook. The undertaking was under the direction of H. G. Hester, representative of the newspaper company; and his party consisted of himself, A. Faure Bourgeois de Blesine, A. O. Lindauer, newspaper correspondents, and one Cranz, an invited guest. According to her inspection certificate, the Argo should have had one pilot, one engineer, and a crew of five men; but as there was great hurry to get her away, so as to be present at the mouth of the river at the time of the arrival of a congressional committee to inspect the jetties (which had preceded them on the steamship Whitney), to report said committee’s proceedings, Messrs. Hester, Lindauer, and Blesine, all of whom were said to be familiar ■with the management of water craft, agreed in case of necessity to lend aA&nd and act as part of the crew. The Argo sped rapidly down the river, without delay or accident, until, between 12 and 1 o’clock in the morning of January 28, 1897, she came in collision with the Albert Dumois, striking her on the starboard bow 10 or 12 feet abaft the stem, damaging herself so badly that she sunk in a few minutes thereafter; her crew and passengers all escaping, except Hester and Blesine, who were drowned. The Dumois made a search of an hour or more, trying to find the missing men, and then brought the remainder of the crew and passengers to the city of New Orleans. On the same day the Dumois reached New Orleans, Oscar M. Springer, owner of the Argo, filed his libel in rem against the Dumois, claiming that she was entirely in fault, asking $40,000 damages. Shortly thereafter the crew of the Argo filed their intervention, claiming various small sums, to the value of their personal effects lost by the sinking of the Argo; and thereafter Mrs. Blesine, mother of the deceased Blesine, tiled her libel in personam against Anders Jakobsen, who had appeared, through the steamship’s master, and claimed to be the sole owner of said steamship; alleging that said Blesine died without tesas, having no wife or father living, leaving her his only surviving parent, and alleging said collision and death were solely caused through the fault, negligence, and improper conduct of those In charge of the steamship, and asking for $20.000 damages. After Cling Ills claim, Jakobsen, owner of the Dumois, filed a petition claiming the benefit of the limited liability act, and asked that the said vessel and her pending freight bo appraised and released on bond. Thereupon a.n appraisal was had, and the value of the vessel and freight appraised at $31,333.75, and an order was rendered restraining further proceedings against said vessel; and a monition was published for three months, calling on all parties having or pretending to have claims against the said vessel to appear before a commissioner and present the same. Under this monition, Mrs. Hester, the widow of H. G-. Hester, filed her petition, alleging that her said husband had lost his life through the fault of those in charge of the said Dumois, and claiming damages In the sum of $20,000. By agreement the libel of Mrs. Blesine wras filed as a claim under said monition, and to be treated as an answer to the petition of Jakobsen, denying fault on the part of the Dumois, and asking tlup all claims be made against, said bond, and not against the steamship. The libelant Springer filed an answer denying all the allegations, and surrendering the wreck of said Argo, and any charter money that might be due to him and to any and all parties in interest. On the hearing the district court decided that the Dumois was solely in fault, and rendered decrees against the fund in fa.vor of Springer, owner of the Argo, for $11,000; Mrs. Hester, $5,000; Mrs. Blesine, 82,500, — and for the crow of the Argo the following amounts; One Broadhurst, $51.45; Orkney, $20.25; Jewett, $25.50; Brown, $213; Green, $5; and Diseamus, $4. From this decree the owners of the Dumois appealed, claiming, among other errors, that the court erred in finding the Dumois in fault, and in not finding the Argo solely In fault; and thereupon O. M. Springer, the owner of the Argo, also appealed, claiming that the court erred in not finding a higher value than $11,000 for the Argo.</p>

<p>1. Collision — Maneuvers under Pressure of Extreme Danger.</p> <p>A vessel which has the right to be where she is should not be held to be in fault for an unwise maneuver made in a moment of extreme danger.</p> <p>2. Same — Right of Way — Sailing Vessel and Tug with Tows.</p> <p>While the rule giving the right of way to sailing vessels as against steam ers is based historically upon their assumed inferiority, it is nevertheless an arbitrary rule, which is not to be varied by any estimates which the navigators immediately concerned may make of the comparative maneuvering powers of their respective vessels. Therefore a tug with tows is bound to keep out of the way of a schooner, under ordinary circumstances, though it; is manifest that the schooner can much more readily change her course.</p> <p>3. Samis.</p> <p>The rule giving a sailing vessel the right of way, as against a steamer, requires the steamer to keep oil' the course of the sailing vessel if it bo practically possible to do so; that is, if she can do so without accident, such as collision with another vessel, running aground, or the like.</p> <p>4. Same — Change of Course by Sailing Vessel.</p> <p>A sailing- vessel approaching- a tug with tows should hold her course, at all events until it becomes evident that the tug will persist in her breach of the rule by refusing to give way.</p> <p>5. Same — Right of Way — Sailing Vessel and'Tug with Tow.</p> <p>A tug with tow, meeting a sailing vessel at night in a narrow channel, held not relieved of her obligation to keep out of the latter’s way by the fact that she had wind and tide with her, and that the sailing vessel was under full sail and in a position to maneuver easily.</p>

<p>Cihootj: Court of Appeals — Jurisdiction.</p> <p>The circuit court of appeals has no jurisdiction of an appeal in proceedings in admiralty for limitation of liability, when the only question presen! ed for review on the record is whether the district court had power and jurisdiction, after final disposition of the questions of limitation, to enter a decree in personam against the owners of the vessel for damages suffered by some of the interveners.</p>

<p>1. Jurisdiction of Federal Courts — Action against State Officer.</p> <p>An action by a citizen of another state or by an alien against a state treasurer to recover taxes ^lleged to have been illegally collected by the state is, in effect, an action against the state, and cannot be maintained in a federal court in view of the prohibition of the eleventh amendment.</p> <p>2. Same.</p> <p>Pol. Code Cal. § 3669, which provides for bringing suits against the state to recover taxes illegally collected, is-not to be construed as a consent that such suits may be brought in the federal courts, since it contains provisions wholly inapplicable to the procedure of the federal courts, among them being a provision that, at a certain stage of the case, the treasurer may cause it to be removed into the superior court for the county of Sacramento.</p> <p>8. Same — Citizenship—Reoeiveps of Corporations.</p> <p>It is only where the jurisdiction of the federal courts depends upon diverse citizenship that the citizenship of a receiver of an incorporated party is material. If the jurisdiction is asserted on any other ground, the receiver stands upon the same footing as the corporation itself.</p> <p>4 Same.</p> <p>The provision in the constitution giving the federal courts jurisdiction of controversies “between a state and citizens of another state, * * * and between a state, or the citizens thereof, and foreign states, citizens or subjects” (article 3, § 2), does not include an action against a state by a corporation created by act of congress.</p>

This was a suit in equity by the Knox Rock-Blasting Company against the Rairdon Stone Company for alleged infringement of a, paten t. The cause was heard on motion to strike from the files a plea to the bill.

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

Tbis was an action of replevin by tbe Knowles Loom Works against William Ryle and others to recover possession of certain macbinery. In tbe circuit court, verdict and judgment were given for plaintiff, and tbe defendants sued out tbis writ of error.

<p>L Habeas Corpus — Arrest foe Extradition — Identity off Prisoner.</p> <p>In habeas corpus proceedings i'or the discharge of a prisoner held under an extradition warrant issued by the governor of a state, the question of the prisoner’s identity cannot he raised by demurrer to the return of the officer to the writ.</p> <p>3. Same — Recitals in Extradition Warrant — Burden of Proof.</p> <p>in halloas corpus proceedings 'for the discharge of a prisoner held under an extradition warrant issued by the governor of a state in conformity with the requirements of the act of congress, a recital in the warrant that the prisoner is a fugitive from justice will be taken as true until overcome by satisfactory proof.</p> <p>3. Extradition-Fugitive from Justice.</p> <p>Where one has left the state in which he is indicted for a crime, he is a fugitive from justice, in the sense of the act of congress relating to the extradition of criminals, whatever may have been his motive in leaving the state.</p> <p>4. Sami; -Habeas Corpus Proceedings — Matters Considered.</p> <p>in habeas corpus proceedings for the discharge of a prisoner held under an extradition warrant issued by the governor of a state, the federa! court will not consider or pass upon any matters of defense to the indict - mem irpon which the extradition is based, nor a charge that the requisition proceedings are instigated by malice, and intended to annoy and harass the petitioner.</p>

<p>1. Criminal Law — Plea of Former Jeopardy.</p> <p>A plea of former jeopardy set up certain prior proceedings had in the same court under the same indictment. Counsel for the government having objected thereto, the court treated his objection as a demurrer to its sufficiency in law, and thereupon overruled the plea. The trial then went on, without objection by defendant to the subsequent proceedings: Seltl, that there was no error in thus proceeding with the cause without first setting down the plea for trial, as the only question arising thereon was one of law, which was finally disposed of by the former ruling.</p> <p>2. Sufficiency of Indictment — Motions to Quash.</p> <p>Rev. St. § 1025, forbidding the court to quash an indictment for defect of form, makes it unnecessary, in criminal indictments; to repeat an averinent contained in the first count, whet'e subsequent counts refer back to the first, and are thereby rendered sufficiently -explicit in stating the offense.</p> <p>8. Same — Evidence.</p> <p>An indictment charged the making of false entries in the books of a national bank for the purpose of showing (hat on a certain date a, county treasurer deposited $10,000 ‘‘special,” which was drawn out again a few days later. Evidence was offered by the government to prove that no such deposit was made, and the treasurer himself was called by it, and testified that he had some recollection of having deposited a large sum about the time in question. Thereupon his books were produced, and, after he had testified that he believed them to be correct, he was permitted to Testify as to the entries therein m the dates referred to. By those entries it did not appear that $10,000 had been either deposited in bank, or drawn from the cash on hand. The treasurer, however, then reiterated his former statement, and was even more positive that he had made the deposit. Held that, in view thereof, there was no prejudicial error in admitting his testimony as to the book entries.</p> <p>4. National Banks — False Entries — “Special” Deposits.</p> <p>If money is left with a national bank in a sack, with the express understanding that it is not to be mingled with the bank’s funds, but the identical bills or coins are to bo returned in the same condition, and this is done to make a showing of money to a bank examiner, as if it were the money of the bank, then the entry thereof on the books of the bank as money deposited is a false entry.</p> <p>5. Same — Instructions—Intent.</p> <p>It' the jury be charged that a false entry on the books of a, national bank alone gives rise to the presumption, not only that the entry was made with criminal Intent, but also with knowledge of its falsity, but elsewhere in the charge it was said that, a false entry must be known to be false, and designed a,nd intended to deceive, the charge is not erroneous.</p> <p>8. Same.</p> <p>Where the court has several times stated to the jury that the indictment charges the making of false entries in the books of the bank, with intent to deceive the bank examiner, and the making of false reports, with intent to deceive the comptroller, it is not misleading to thereafter say that defendant is guilty if he made such false entries and report “with the intent mentioned in the statute,” although the statute mentions several other intents.</p>

This was a suit in equity by William S. Doig against Eugene Sutherland and the John J. Hayes Machine Company for alleged infringements of certain patents relating to machines for nailing boxes.

These were suits in equity brought by the Consolidated Car Heating Company against the Gold Car Heating Company and others and against the Gold Street Car Heating Company and others, respectively, for alleged infringement of letters patent No. 500,288, issued June 27,1893, to the complainant, as assignee of James F. MeElroy. The causes were heard on motions for preliminary injunction.

Hearing upon pleadings and proofs of bill in equity to restrain infringement of claims 1 and 3 of United States patent No. 536,742, issued April 2, 1895, to complainant John W. Sutton for a machine for plucking pelts. The complainant the Cimiotti Unhairing Company is the exclusive licensee in the United States under said patent.

<p>This was a suit in equity by the E. Ingraham Company against the E. N. Welch Manufacturing Company and others for infringement of a patent for a base for clocks, granted to William H. Wright, November 23, 1897.</p>

<p>1. Appeal and Error — Finality oe Decree.</p> <p>A decree in admiralty, awarding libelants a definite sum, adjudging that a maritime lien exists therefor, and directing the sale of the vessel and payment of the proceeds into the registry to await the further order of the court, is a final appealable decree.</p> <p>2. Same — Maritime Liens — Breach oe Contract.</p> <p>There can be no maritime lien against a vessel for breach of a contract of carriage where she never in fact entered on the performance thereof, and neither the libelants nor their baggage were ever received on board, or placed in the care or control of the master. 83 Fed. 222, affirmed.</p>

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

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

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

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

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

<p>Appeal and Gross Appeal from the District Court of the United States for the Northern District of Florida.</p>

This was a petition for a writ of habeas corpus by Heyman J. Hirsch, deputy internal revenue collector, who was committed by a state court of Connecticut for a refusal to produce to such court, in obedience to a subpoena duces tecum, an original apiflication or return of a special taxpayer, to be used as evidence on the prosecution of such Taxpayer for sidling liquor in violation of the state laws.

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

This is an action brought by William J. Bell and others against the Standard Oil Company to recover possession of land and damages for the occupation and use thereof. Judgment for plaintiffs, and defendant brings error.

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

<p>Appeal — Record.</p>

<p>Appeal and Cross Appeal from the District Court of the United States for the Northern District of Florida.</p>