Volume 91 — Federal Reporter

Action at law to recover damages in the sum of $50 for the alleged neglect of the defendant, as a common carrier, to receive and transport a certain package of merchandise offered and tendered by plaintiff for conveyance and transportation.

Appeals from the Circuit Court of the United States for the District of Kentucky. On December 22, 1893, the original bill of Collis P. Huntington against the Chesapeake, Ohio & Southwestern Railroad Company, with the answer of the. defendant, were presented to the circuit judge, and motion made for the appointment of receivers under the bill. Defendant was incorporated under the laws of the states of Kentucky and Tennessee.

<p>Appeal from the Circuit Court of the United States for the Southern District of Florida.</p> <p>This was a suit in. equity by the Florida Mortgage <& Investment Company, Limited, against Daniel A. Finlayson, in his own right and as administrator of A. Florida Finlayson, deceased, to remove an alleged cloud from the title to land. From a decree dismissing the bill (74 Fed. 671), complainant appeals.</p>

<p>Receivership — Factors’ Interest in Property Consigned — Attorney’s Fees.</p> <p>In a proceeding brought by the receiver of an insolvent iron company against certain brokers to determine their interest in a quantity of iron in their possession for sale under a contract with the iron company, it was adjudged that the brokers had title to the iron, but were ordered to account to the receiver, after disposing of the iron, for the net balance remaining after reimbursement of advances and expenses. Hold, that the brokers were not entitled to deduct from such balance any sum for attorney’s fees and expenses incurred in defending their title to the iron, either under a provision in their contract with the iron company allowing them “expenses incidental to distributing the iron,” or on the ground that they were acting as agents in defending the title, or on the ground of damage caused by the injunction restraining them from disposing of the iron.</p>

Upon a bill filed by the Morgan’s Louisiana & Texas Railroad & Steamship Company seeking to enforce an alleged equitable mortgage and lien, claimed to be paramount to all other liens, joint receivers were appointed in April, 1885, by the United States circuit court for the Northern district of Texas, of the property of the Texas Central Railway Company.

This was a suit in equity by the Moffett, Hodgkins & Clarke Company against the city of Rochester and others for the reformation or rescission of a contract for public work. From a decree rescinding and annulling the contract (82 Fed. 255), the city appeals.

This is an action by Louis Loeb against the trustees of Columbia township, Hamilton county, Ohio, on bonds issued by the township. On demurrer to petition.

<p>1. Interstate Commerce—Reasonableness of Rates.</p> <p>In determining the reasonableness of local rates, the court cannot take into consideration the carrier’s whole business, both interstate and domestic.1</p> <p>2. Same—Rates—Mileage Basis.</p> <p>Nor can the interstate traffic which originates or terminates in the state be divided upon a mileage basis, and such portion thereof as is done within the state be held subject to state control and considered in fixing rates.</p> <p>3. Same—Local Commerce—“Cost of Transportation.”</p> <p>Prom the opinion of expert witnesses, and from the fact that local traffic in North Dakota consists mainly of merchandise, is light in volume, short in Jiaul, and small in individual shipments, the court holds that the “cost of transportation” is, in relation to revenue, at least twice as great for local business as for the entire business of the carriers.</p> <p>4. Same—Proportional Rates.</p> <p>A “proportional” rate for North Dakota, found by dividing the terminal rates on traffic between St Paul and Duluth and points in North Dakota on a ton mileage basis, in such proportion as the number of miles in North Dakota bears to the entire haul is unreasonable, as it does not allow for the length of haul nor for the large amount of terminal busines*.</p> <p>5. Same—Evidence—Reasonableness.</p> <p>In a suit to enjoin the enforcement of a carrier’s schedule prepared by the hoard of railroad commissioners, a table was introduced in evidence showing the operating expenses of two of the roads affected for four years, and it appeared that, if the schedule as proposed had been in operation at that time, the business of the roads would have been done at an actual loss, and nothing left for a return on the value of the property. Held, that the rates of the commission were unreasonably low.</p> <p>6. Compulsory Process against Witness—Production of Papers.</p> <p>If a party is entitled to documentary evidence, and a witness refuses to furnish it, his remedy is by application to the federal court of the district in which the evidence was taken for process to compel its production.</p> <p>7. Evidence.</p> <p>Evidence in the form of tables representing the average business of railroad companies is receivable in a suit to enjoin the enforcement of a tariff by the railroad commissioners, although covering only occasional or alternate months in the year.</p> <p>8. Production of Papers—Tender of Costs.</p> <p>When a party to a suit asks another party to produce in evidence a certain table that would entail great expense in the preparation, he must first tender the expense required.</p> <p>9. Evidence—Tables—Verification.</p> <p>In a suit to enjoin the enforcement of a tariff by the railroad commission, a large number of tables were prepared in the accounting departments of the several roads affected, showing the amount of business done for a certain period. The work was done by 40 or 50 clerks, under the direction of the general officers. Held, that it was not necessary to call the clerks to testify as to the correctness of the tables, as each clerk made but a part of them, but it was sufficient if the records from which the computations were made were placed at the disposal of the opposite party.</p>

<p>1. Judgments of State Court — Faith and Credit Accorded by Federal. Courts.</p> <p>Federal and state courts are tribunals of a different sovereignty, and the federal courts are bound by the constitutional provision to accord no greater measure of faitb and credit to the judgments of state courts than is required between the courts of the different states, and are not precluded from inquiring into the jurisdiction of the court in wbicb the judgment was rendered. 1</p> <p>2. Divorce—Decree for Alimony—Jurisdiction.</p> <p>A court is without jurisdiction to award a money judgment for alimony against a defendant on whom no personal service bas been made, and wbo bas not appeared.</p> <p>8. Same—Estoppel—Remarriage of Dependant.</p> <p>The marriage of a man after bis wife bas procured a decree of divorce in another jurisdiction, without personal service upon him, or bis appearance, does not estop him from denying the jurisdiction of the court to afterwards open the decree without notice to him, and award alimony against him. *</p> <p>4 Appeal—Record—Sufficiency of Exception.</p> <p>Where a jury is waived in the circuit court, and the case tried to the court, a general exception to a general finding wbicb involves mixed questions of law and fact is insufficient to entitle the party excepting to have it reviewed by the circuit court of appeals.</p>

This was an action by the republic of France against the World’s Columbian Exposition Company to recover for alleged injuries to certain property by ure and water while in defendant’s building. There was a judgment for plaintiff (83 Fed. 109), and defendant brings error. The defendant (plaintiff in error in this court) was summoned to answer a plea of trespass on the case.

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

<p>1. Federal Courts—Jurisdiction-Creditors’ Bill.</p> <p>A judgment creditor in a state court, who lias sued out an execution and obtained a nulla bona return, may file a creditors’ bill based on said judgment and nulla bona return in the circuit court of the United States for the district comprising the county in which the judgment of the state court was rendered.</p> <p>3. Judgment—Res Judicata—Courts — Jurisdictional Amount — Pleas to J urisdiotion—Demurrer.</p> <p>The Alkiro Grocery Company, a corporation organized under the laws of the state of Missouri, recovered a. judgment in the circuit court of Boone county, Ark., against Jesse R. Richesin, and afterwards acquired two judgments, rendered in the same court, against said Richesin, one from Simmons Hardware Company, and one from A. Frankenthal & Bros., both citizens of Missouri, and all of said judgments were for s,ums less than $2,000, but the aggregate more than $3,000. The Alkire Grocery Company sued in the Boone circuit court in Arkansas on all the three judgments, and recovered judgment in its own name for $3,204.00, sued out execution, and procured a nulla bona return, and then filed this bill against the judgment debtor and his wife and son to vacate certain alleged fraudulent conveyances to them. The property held by the son was $400 in value; that held by the wife more than $2,000. Each of the defendants filed pleas to the jurisdiction on the grounds (a) that Alkire Grocery Company only held the judgments of Simmons Hardware Company and A. Frankenthal & Bros. colorably, and sued on them and secured judgment in the Boone circuit court in order to raise the amount so as to give the United States circuit court jurisdiction; and (b) the son also assailed the jurisdiction on the ground that the property claimed by him was worth only $400. Held: (1) That the judgment of the Boone circuit court was conclusive as to the judgment debtor; (2) that, in the absence of allegations of the want of jurisdiction in the Boone circuit court as to either the parties or subject-matter, and in the absence of any allegations of collusion or fraud in the procurement of the judgment between the judgment creditor and debtor, the judgment in the Boone circuit court is also conclusive upon the judgment debtor’s co-defendants in a creditors’ bill to vacate fraudulent conveyances; (3) that the amount claimed by the judgment creditor against the judgment debtor determines the jurisdiction of this court, and not the value of the property held by the latter’s assignee; (4) that all the pleas were bad, and should he overruled; (5) that demurrers to pleas to the jurisdiction and motions to strike them from the flies are irregular, and nothing is required except to set tho pleas down for hearing, like a demurrer, unless the complainant desires to put the facts pleaded in issue, when a replication is required.</p> <p>(Syllabus by the Court.)</p>

This was an action by the J. H. Mohlman Company against the Fireman’s Insurance Company of Baltimore on a policy of fire insurance. There was a judgment for plaintiff, and defendant brings error.

<p>1. Parties — Action bt Undisclosed Principal on Contract Made by Agent.</p> <p>An undisclosed principal may maintain an action in bis own name on a contract made by bis agent, subject to defenses existing against the agent.</p> <p>2. Appeal—Amendment ,of Pleading—Discretion of Court.</p> <p>In an action to recover the price of goods sold, a refusal of leave to amend the answer by setting v. a breach of warranty, after the close of plaintiff’s evidence, was a matter of discretion, wbicb cannot be reviewed on a writ of error.</p>

Tills was an action at law by the American Surety Company of New York against Daniel Haynes, in which an attachment was issued. Heard on a plea challenging the validity of the attachment.

<p>1. Taxation—Personal Property op National Banks.</p> <p>A state eannot tax a bank chartered by congress, except upon its real property.</p> <p>2. Same—Assessment.</p> <p>An assessment in a lump sum of all the personal property of a national bank to the bank itself eannot be regarded as one against the stockholders on their shares.</p> <p>3. Same—Requiring Bank to Pay Tax against Shabeiiolders—Insolvency.</p> <p>A state statute requiring banks to pay the taxes assessed against their stockholders on their shares, and giving the bank a lien thereon for the amount advanced, is based on the' theory that the bank holds assets of the stockholder from which it can protect itself; and such payment cannot be enforced against the receiver of an insolvent national bank, nor against its assets in his hands.</p>

Original petition to review and revise an order of the district court of the United States for the Northern district of Illinois, sitting in bankruptcy.

<p>1. Bankruptcy—Referees—Disqualification by Interest.</p> <p>Under Bankruptcy Act 1898, § 39, providing- that “referees shall not act in cases in which they are directly or indirectly interested,” a referee is not disqualified hy interest from acting in a particular case because he owes a debt to the bankrupt. The interest which will disqualify is an interest either in the proceedings in bankruptcy or in the estate of the bankrupt. But the judge, on being apprised of the fact that the referee is a debtor of the bankrupt, may, in his discretion, revoke the order of reference, and send the ease to another referee.</p> <p>2. Same—Appointment of Special Referee.</p> <p>Under Bankruptcy Act 1898, § 43, when the referee to whom a case in bankruptcy would regularly be referred is absent or disqualified, the judge may appoint a special referee, and refer the case to him. This may he done before the answer of the alleged bankrupt is filed, and does not require the consent or approval of the respondent or his attorney.</p> <p>8. Same—Oriier of Reference—Deputy Clerk.</p> <p>A deputy clerk of a court of bankruptcy has no authority to refer a petition in bankruptcy to the referee. An order of reference may he made by the clerk, but only in case the judge is absent from the district, or from the division of the district, where the petition is filed.</p> <p>4. Same.</p> <p>An order of reference, made by the judge and attested by the deputy clerk, is valid.</p> <p>6. Same—Acts of Bankruptcy—Assignment for Creditors.</p> <p>Under Bankruptcy Act 1898, § 3, declaring that it shall be an act of bankruptcy if a person shall have “made a general assignment for the benefit of his creditors,” the making of such an assignment is an act of bankruptcy per se, without reference to the debtor’s solvency or insolvency at the time.</p> <p>6. Same—Controverting Allegation of Insolvency.</p> <p>Under Bankruptcy Act 1898, § 3, subsec. d, providing that when a person against whom an involuntary petition in bankruptcy is filed takes issue with and denies the allegation of his insolvency, it shall he his duty to appear in court on the hearing with his hooks, papers, and accounts, and submit to an examination, and that bis failure to do so shall impose upon him the burden of proving bis solvency, a simple denial of the fact of insolvency ' in the answer by an alleged bankrupt (who had previously assigned all his property for the benefit of creditors), unaccompanied by any affidavits, schedules, or other evidence, does not raise such an issue of solvency as is contemplated by the act, nor sustain the burden of proof.</p> <p>7. Same—Demand fop. Jury Trial—Waiver.</p> <p>In a case of involuntary bankruptcy, a -demand for a trial hy jury, as to the commission of the acts of bankruptcy alleged and the fact of insolvency, must be made by the debtor at or before the expiration of the time allowed for an answer,—10 days after the return day of the subpoena,— unless the time is extended by the court; -if not demanded until 7 days later, trial by jury will be deemed to have been waived.</p> <p>8. Same—Disqualification of Clerk—Transfer of Cause.</p> <p>Relationship between the bankrupt and the deputy clerk of the district court in whose office the petition was filed will he cause for transferring the ease to another seat of the court in the same district and division, and ordering the record to he filed and docketed in the office of the clerk of the court at the latter place.</p>

<p>Bankruptcy- -Provable Debts—Pbefebence.</p> <p>Where, under a general assignment made by a debtor more than a year before the commencement of proceedings in bankruptcy, a creditor, therein preferred, lias received a partial payment of his claim, he is not required, before being admitted to prove his debt in the bankruptcy proceedings and vote in the election of a trustee, to refund to the estate of the bankrupt the amount so received. The claim is provable for the balance remaining unpaid.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decision of the circuit court, Southern district of New York (84 Fed. 158), reversing a decision of the board of general appraisers, which affirmed a decision of the collector' of the port of New York, touching classification for duty of certain elliptical glass bottles known as “egg sodas.”</p>

This is an appeal by the importer from a decision of the circuit court sustaining a decision of the board of general appraisers which sustained the action of the collector in classifying for duty certain imported merchandise.

<p>1. Customs Duties — Construction of Statute — Limitation of General Terms.</p> <p>The phrase, “all articles composed * * * of mineral substances,” as used in paragraph 86 cf. the tariff act of 1891, which is a part of Schedule B, relating to “Earths, Earthenware, and Glassware,” and fixes the duty-on articles not specially provided for, must be construed, by reason of the collocation of the xiaragraph in a restricted sense, as applying only to articles composed of mineral substances similar to those enumerated in that schedule.1</p> <p>2. Same—Classification—Arc-Lioht Carbons.</p> <p>Carbon points for arc lights, composed chiefly of lampblack, natural graphite, and carbon products resulting from the distillation of coal, coke, or petroleum and coal tar, in varying proportions, the lampblack being produced by the combustion of either mineral or vegetable substances, are dutiable, under section 3 of the tariff law of 1894, as manufactured articles not provided for, and pot under paragraph 86, as articles composed of mineral substances not specially provided for, nor can they be classified under paragraph 443, in the free list, as preparations of coal tar.</p>

This is an appeal by the United States from a decision of the circuit court which reversed the decision of the board of general appraisers sustaining the protest of the importers against the classification for duty of certain imported merchandise.

<p>L Customs Duties—Appraisement—Commissions.</p> <p>The customs administrative act of 1890 makes the market value or wholesale price of merchandise at the time of exportation to the United States, in the principal markets of the country from which it has been Imported, the criterion of the dutiable value, and there is no authority for adding a commission paid by the importer to such' market value.</p> <p>2. Same.</p> <p>The evidence showed that manufacturers were accustomed to sell in a foreign market to others than commission men at a fixed price, including in the price an item which they called “commission.” The item so charged was the discount which the manufacturers were accustomed to allow commission merchants who purchased direct from them. There was evidence that, in buying goods of a concern which was a manufacturer and also a commission house, the price of the goods purchased of them was the same as for those of their own manufacture and for similar goods manufactured by others which they were selling on commission. Held, that the custom-house officers, in appraising the goods, should properly include as a part of the actual manufacturing price the entire sum paid by the importers to the commission men or the manufacturers, no part of which was properly chargeable as a commission.</p>

<p>On Demurrer to Indictment</p>

<p>Habeas Corpus — Discretion oe Federal Courts — Construction op State Statutes.</p> <p>A federal court will not, unless under exceptional circumstances, entertain a petition for a writ of habeas corpus by a person imprisoned for crime under a sentence of a state court, claimed to have been unauthorized by the state statutes, on the ground that such imprisonment is for that reason in violation of the constitution of the United States; the question involved being one peculiarly within the province of the state courts to determine, and their final decision, if adverse to the petitioner, being reviewable by the supreme court of the United States in the orderly course of procedure as to any constitutional question properly raised.</p>

<p>Unfair Trade—Capsules for Champagne Bottles.</p> <p>Complainants have for many years used a peculiar, rose-colored metal capsule, with their name and other devices embossed thereon, as a distinguishing marls for the bottles containing their champagne. Defendants are manufacturers of bottlers’ supplies for the trade. Held, that complainants were not entitled to a decree enjoining the sale merely of a rose-colored capsule, unembossed, though of the same size and shape, or even with the words “Extra Dry” inrpressed thereon, as on complainants’, in the absence of evidence of its use in a manner to deceive customers to complainants’ damage, as such capsules are capable of use in a manner not injurious to complainants. 1</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action by Peter A. Ross against the Raphael Tuck & Sons Company to recover a penalty. Plaintiff brings error.</p>

<p>1. Jurisdiction of Federal Courts—Suit to Protect Copyright—Infringement by State Authority.</p> <p>The eleventh amendment to the constitution cannot be invoked to debar the owner of a copyright from maintaining a suit to protect it from infringement because the defendants are acting in the matter as the agents of a state, and under its authority.</p> <p>2. Same—Suit against State.</p> <p>A suit to enjoin the publication, distribution, and sale of an edition of the laws of a state on the ground that it infringes a copyright held by the plaintiff under the laws of the United States is not a suit against the state of which a court of the United States cannot entertain jurisdiction, because the matter for such publication was prepared under direction of a state statute, and is owned by the state, and in its possession, and the defendants are officers and agents of the state, and proceeding in accordance with such statute.</p> <p>3. Copyright—Extent of Protection—Edition of State Statutes.</p> <p>A compiler and publisher of an annotated edition of the statutes of a state may copyright his volumes, and such copyright will cover" and protect sucia part of their contents as may fairly be deemed the product of his own labor.</p> <p>4. Same — Injunction against Infringement — State Compilation of Statutes.</p> <p>A court should not interfere by injunction to restrain the publication by a state of a new compilation of its laws determined by its legislature to be required by the public interests, and which has been completed, on the ground that the compiler has appropriated the labor of a former com* piler in infringement of his copyright, unless the right to the relief is clearly manifest from the evidence.</p>

On final hearing of the bill in equity of the present complainants against the Hartford & West Hartford Railway Company in the circuit court of the United States for the district of Connecticut a decree was entered by Judge Townsend which declared that claims 20, 21, 22, 27, 28, 29, and 31 of letters patent- No. 393,323, dated November 20, 1888, issued to George Herbert Con-dict for an improvement in switches for electric motors, had been infringed by the defendant’s use of…

This is an appeal from an interlocutory order of the circuit court of the United States for the Southern district of New York, which granted an injunction pendente lite against the infringement of claims 2 and 3 of letters patent No. 298,879, dated May 20, 1884, to Gordon Munro, for an improvement in box covering and trimming machines.

This was a suit in equity by John Rose against Henry Hirsh and others for infringement of a patent. Heard on exceptions to report of master as to damages and profits.

<p>1. Patents—Process—Test of Patentability.</p> <p>No test, -which can be definitely applied to all cases, to determine whether or not a process of manufacture is patentable, has been authoritatively established; hut it is not essential to patentability that the process should effect a chemical change in the substance operated upon.</p> <p>2. Same—Process of Manufacturing Linoleum.</p> <p>The Melvin patent, No. 412,279, for a process for manufacturing linoleum floor-cloth, which relates to the making of inlaid linoleum, and the essential feature of which is the cutting of the pattern-forming shapes from sheets of spongy texture, and their attachment to the backing and to each other hy means of their own adhesive nature, and without the use of any separate cementing composition, discloses a patentable invention, which was not anticipated by the method of making plain linoleum then in use, nor hy any prior patent or publication.</p> <p>8. Same—Construction cf. Claims.</p> <p>Where language used in a claim, abstractly considered, is susceptible of either of two constructions, it must he read in the light of the actual condition of things, and, if technical, he given the meaning in which it would be understood hy those skilled in the art.</p>

<p>1. Patents—Invention—Application of Old Methods to New Use.</p> <p>The application of a well-known method to a new use in an art analogous to that to which it had been applied does not involve patentable invention.</p> <p>2. Same—Process—Improvement in Rail Joints.</p> <p>Patent No. 545,040, for an improvement in rail joints and methods of forming the same, relates to a process for welding- or uniting abutting rail ends.so as to make a continuous smootli track, using well-known mm hods, which belongs to the domain of mechanical skill, and not to that of invention. It was also anticipated by the English patents to Stephenson in 1831 and to Norris in 1851.</p>

This was a suit in equity by Benjamin S. Lovell against Mary Elizabeth Johnson for infringement of a patent. From a decree dismissing the bill (82 Fed. 206), the complainant appeals.

<p>This was a suit in equity by the Chandler Adjustable Chair & Desk Company against the Hey wood Bros. & Wakefield Company for infringement of a patent.</p>

This was a suit in admiralty by the American Sugar-Refining Company against the steamship G. R. Booth for damages for injury to cargo while the ship was discharging in port, caused by the explosion of certain detonators, which constituted a part of her cargo, tearing a hole in the side of the ship, through which the sea water entered and damaged libelant’s sugar. Libelant appealed from a decree dismissing its libel.

<p>Shipping—Bill of Lading—Liability of Vessel for Shortage in Cargo.</p> <p>A vessel is not liable for a shortage in the number of bags of sugar set out in the bill of lading signed by the master, although buch bill and the sugar represented by it have passed to a bona fide purchaser, where no fraud Is charged,' and it is conceded that all the sugar actually received - on board, or which came into the hands of the master, was delivered.</p>

This was a libel by the Red “R” Steamship Company, Limited, against the North American Transport Company, to recover money claimed under a charter party. From the decision of the district court (84 Fed. 467), the respondent appeals.

<p>1. Tug and Tow—Collision of Tow, with Bridge—Negligence of Tug.</p> <p>A small tug- engaged to tow loaded canal boats, six miles down the Hudson, in the daytime, made v. a fleet of six, arranged two abreast and lashed together, making the fleet 54 feet wide and 200 feet long. Some of the boats were loaded with lumber standing 11 feet above the water. The river was high and the wind strong. In passing between the piers of a bridge, 200 feet apart, one of the boats collided with a pier and was sunk. A fleet of the same number, similarly made up, preceding the one in question, passed the bridge in safety. Held, that the collision was not due to inevitable accident, but to the negligence of the tug either in making v. the fleet as it was or in its navigation.</p> <p>2. Same—Suit for Injury to Cargo of Tow.</p> <p>In a suit against a. tug by the owner of the cargo of a tow for its injury resulting from the collision of the tow. with the pier of a bridge, where the tug was at fault, it is no defense that the tow was also negligent.</p>

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>These are appeals from decrees of the district court, Southern district of New York, in cross actions for damages arising from a collision between the barkentmc E. S. Powell and the ship Iroquois, happening at 1:30 a. m., June 22, 1896, some eight to ten miles cf. Long Branch. The Iroquois, a full-rigged ship of 1,996 tons net register, loaded with sugar, with all sails set except the mainsail and cross-jack, and making about three knots an hour, was on a course north half east. The Powell, a barkentine rigged vessel of 558 tons net register, with about 125 tons of nitrate of soda as ballast, with all sails set except her mizzeu topmast staysail, and making somewhat less than three knots, was on a course heading south by west. The wind was about west—a light breeze, as is apparent from the respective speed of the vessels. The Iroquois was sailing free on the port tack, the Powell closehauled on the starboard tack. The vessels sighted each other at a distance apart of more than a mile. There is no evidence to show that the lights of either were obscured, or not burning. The opinion of the district judge is as follows:</p> <p>“The vessels were heading nearly opposite; but the Powell, being light, it is conceded she was making iy2 points leeway. This fully explains the collision, and thwarted the proper efforts of the Iroquois hy porting to avoid the Powell. This could not possibly he foreseen hy the Iroquois, and she is not, therefore, in fault. Her account of the situation, namely, port light to port light, when at a considerable distance, is well substantiated, and agrees with her porting,—a maneuver which would bo almost incredible if the vessels were green to green, as the libelant alleges. There is no sufficient evidence of a change of course by the Powell, at least not until just before the collision; and that could not have affected the result. I find, therefore, no legal fault in either. The rules of navigation afford no means of recognizing or avoiding such a danger as arose from this unusual drifting of the Powell in a light wind. Both libels dismissed, without costs.”</p> <p>The libelants in both actions appealed. All the witnesses were examined by deposition taken out of court. No additional testimony was taken in this court.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Alabama.</p> <p>This was a suit in equity by Margaret J. Firth, executrix of William Miller, Jr., deceased, against John T. Milner and Charles H. Caldwell and others, executors of Henry M. Caldwell, deceased, to enforce a trust in certain lands. From the decree the defendants severally appeal.</p>

This is a suit in equity to enjoin the foreclosure of a mortgage, and compel the surrender for cancellation of certain bonds issued by plaintiff. On demurrer to bill.

These were general creditors’ bills filed by Samuel Thomas against the Cincinnati, New Orleans & Texas Pacific Railway Company in the circuit courts for the Southern district of Ohio, the district of Kentucky, and the Eastern district of Tennessee. Heard on exceptions to the master’s report finding the indebtedness of the defendant and the priority of liens. .

<p>On the Question of Distribution of Net Earnings.</p>

<p>Railroads—Collision at Crossing—Burden of Proof as to Negligence.</p> <p>Where a freight train on defendant’s road separated on account of the breaking of a drawbar stem, and some of the cars ran back downgrade, and collided with a train on another road at a crossing, the burden rested on defendant to prove freedom from negligence of its employes; and such burden is not met where- it is not shown that the stem was not defective, that it had been inspected within a reasonable time, or that the train was properly handled.</p>

All of the facts are contained in an agreed statement of facts, which is substantially as follows: In December, 1891, the Richmond & Danville Railroad Company was operating the Chattanooga, Rome & Columbus Division of the Savannah & Western Railroad Company, under color of a lease made by the Central Railroad & Banking Company of Georgia to the Georgia Pacific Railroad Company.

<p>On Motion for Rehearing and for Leave to Introduce New Evidence.</p>

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

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

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

<p>1. Master and Servant—Action for Personal Injuries—Pleading.</p> <p>A declaration in an action to recover for injuries received by a brakeman while uncoupling cars is not insufficient after verdiet, as showing contributory negligence, merely because it shows the cars to have been in motion, without setting out facts making it necessary to so make the uncoupling, where the speed is not stated, and it is alleged that it was plaintiff’s duty to uncouple the cars while they were being propelled over the line of road, and that he was in the exercise of due care for his own safety.</p> <p>2. Same—Evidence—Waiver or Rules by Company.</p> <p>A plaintiff' injured; while uncoupling cars in motion, in violation of a rule of the company of which he had knowledge, may show that such rule was habitually disregarded, with the knowledge of those whose duty it was to report violations thereof to their superiors; it being a question for the jury whether the rule had been waived by the company, or whether there was any attempt to enforce it in good faith.</p> <p>8. Same—Instructions.</p> <p>The fact that there was evidence tending to show that such rule had become a nullity, by reason of the acquiescence of the defendant in its violation, did not justify (lie refusal of an instruction that if the rule was in force, and plaintiff violated it voluntarily, and in consequence was injured, he could not recover, such instruction being correct, and applicable to one theory of the evidence.</p> <p>4. Same—Contributory Negligence — Act of Congress Relating to Railroads.</p> <p>In the act of congress of March 2, 1898 (27 Stat. 531), requiring railroad companies to equip all freight cars used in interstate commerce with hand holds, or grab irons, the provision that any employe who may be injured by reason of a failure to provide such equipment “shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such * * * ear had been brought to Ms knowledge,” applies only to risks generally incident to the absence of such equipment, and docs not excuse a brakeman from a failure to use ordinary prudence in a particular case, where he observes the absence of such appliances; and, if he was guilty of contributory negligence under the circumstances, he is not relieved from its effect by the statute.</p>

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

<p>1. Appeal—Satisfaction op Judgment — Separate Judgments in Same Entry.</p> <p>. Where there are two or more counts in a declaration alleging distinctly different causes of action, there may be more than one final judgment on which writs of error may be taken, and the fact that such distinct judgments are contained in the same entry, and that one in favor of the plain-, tiff on one count has been satisfied, will not prevent his maintaining a writ of error to review another in favor of defendant on different counts to which demurrers were sustained.</p> <p>2. Same—Waiver op Right—Satisfaction of Judgment.</p> <p>A plaintiff, by receiving payment and satisfaction of a judgment in his favor on one count of his declaration, does not waive his right to review on error a separate judgment against him, though contained in the same entry and rendered in the same case, but on different counts of the declaration pleading a separate and distinct cause of action.</p> <p>8. Contract—Uncertainty—Sufficiency to Support Action.</p> <p>A contract, though too uncertain in its terms to be specifically enforced ■ in equity, may still be the basis of a remedy at law in favor of a party who has performed either wholly or partially.</p> <p>4. Same.</p> <p>A written contract by which defendant gave plaintiff the exclusive sale of a manufactured article in a certain territory during a specified term, and which provided that in case plaintiff succeeded in doing such a business as defendant might “reasonably expect” it should be renewed for a further term, is not so indefinite or uncertain in its terms that it will not support an action for damages for a refusal of defendant to renew at the expiration of the first term, the amount of business which defendant could reasonably expect being a matter which may properly and with sufficient certainty be determined by a jury, to which tribunal the parties by their contract in effect referred it in case of their disagreement.</p>

<p>In Bankruptcy.</p> <p>On the 12th day of December, 1898, the defendant company caused to be admitted to record in the chancery court of the city of Richmond a general deed of assignment to Joseph V. Bidgood, trustee, conveying to him all its property, estate, and effects for the payment of its creditors, without preference, exeexit as allowed under the laws of the state of Virginia. On the same day certain creditors, secured in said general assignment, filed a Bill in equity in the law and equity court of the city of Richmond to administer the trust, and the said court appointed the trustee named in the said assignment a,s receiver to take charge of and wind v. the affairs of the said company. On this same day, also, a petition for adjudication in bankruptcy was filed in the clerk’s office of the district court of the United States for the Eastern district of Virginia, and process duly awarded against the said George West Company and said trustee to show cause why the said company should not be adjudged bankrupt. The process was duly executed, returnable on the TTfh of December, 1898. The said George M. West Company appeared and filed its plea, alleging its solvency, which plea the petitioners moved to reject; and the petitioners filed a further petition, alleging the prosecution of said suit in the law and equity court of Richmond, and asking that the said parlies be enjoined from further proceeding in the state court, and that the fund in the cause be brought into the bankrupt court The defendant company answered this last-named petition, and insisted that the bankrupt court was without power to interrupt the law and equity court of Richmond in the due administration of the trust fund, notwithstanding the adjudication of bankruptcy, and that the state, and not the federal, court alone had power to administer the trust.</p>

<p>1. Exclusion of Chinese—Habeas Corpus.</p> <p>A claim by one of Chinese parentage; who is not permitted to laud in the United States, that he' was born in this country, may be determined by the district court in a habeas corpus proceeding.1</p> <p>2. ’Same—Sufficiency of Evidenoe.</p> <p>Act May 5, 1892, § 3, providing that “any Chinese person * * * shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States,” applies to a proceeding whereby a person of Chinese descent is seeking to enter and remain in the United States; and hence the proof of his birth in the United States must be to the satisfaction of the referee taking the, evidence.</p> <p>S. Same—Credibility of Witness.</p> <p>Although the claim of one of Chinese parentage, who is seeking admittance to this country, that he was born here, is corroborated by another Chinese witness, and uncontradicted, yet their testimony may be discredited if contradictory as to other matters.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>. This is a bill in equity filed by Frank A. Stuart, the appellant, to restrain the appellees from using the name “Dr. Stewart’s Dyspepsia Tablets” upon any remedy manufactured, sold, or offered for sale by them for the cure of dyspepsia. Upon the coming in of the answer the case was referred to a master to report the evidence and his conclusions. He reported in favor of the dismissal of the bill, and upon exceptions filed, and a hearing, a decree was passed sustaining the master’s report, and dismissing the bill for want of equity (85 Fed. 778), which decree is brought here for review. The master reported, and the evidence establishes, the following facts: In the year 1891 the appellant commenced the manufacture and sale of a medical compound for the relief of dyspepsia, indigestion, and other bodily evils arising from the improper assimilation of food, prepared in accordance with a certain secret formula of which he is the owner. To identify himself with this medical compound, he selected and applied to it the distinctive name of “Stuart’s Dyspepsia Tablets.” In order to introduce this remedy to public notice, the appellant advertised largely throughout the United States the supposed merits of his conxpound, and at great and constantly increasing cost. In the year 1891 he expended $2,000 in advertising, and during the subsequent years increased that amount, until in 1897 he expended between $7,000 and $8,000 monthly. This compound was so advertised under the name of “Stuart’s Dyspepsia Tablets,” and has become widely known throughout the Unite'd States by that name. From small beginnings the business has come to large proportions, so that the sales in the year 1897 aggregated from $15,000 to $20,000 a month, and are constantly increasing. The tablets are commonly contained in an oblong, rectangular box, about an inch and a half deep, two inches wide, and three inches long, of a light-blue color. Each box contains 40 large tablets and 20 small tablets, being different in composition; the small tablets being also further inclosed in a separate bundle. The sides of the box, but not the ends, are practically covered with printed matter in black type. The top bears the words “Stuart’s Dyspepsia Tablets,” and a fac simile of the signature of the appellant. The boxes are not sealed. The master reports that among dealers in drugs the name “Stuart’s Dyspepsia Tablets” is known •to refer to the remedy prepared by the appellant. The appellee F. G-. Stewart resided in the city of St. Louis prior to September, 1889, and was president and manager of the Stewart Healing-Powder Company, a corporation which manufactured and sold “Stewart’s Healing Powder,” “Stewart’s Stock K.emedy,” “Stewart’s Hoof Oil,” “Stewart’s Healing Cream,” “Stewart’s Face Powder,” and “Stewart’s Headache Cure.” In 1883 a formula for the cure of dyspepsia was obtained by that corporation from a Mrs. Lemmon, which was tested in 18©, but was never manufactured or placed upon the market until as hereinafter stated. The Stewart Healing-Powder Company was reorganized as the Stewart Chemical Company, with which the appellee F. G. Stewart was connected. That company took the assets of the old company, and continued the business. F. G. Stewart severed his interest with this company the 1st day of November, 1889, coming to Chicago, but purchasing none of the formulas belonging to either of the corporations. It does not appear what the appellee F. G. Stewart did in Chicago before the autumn of 1895 or the spring of 1896. It does not appear that he made or placed upon the market any proprietary medicine. But in May, 1896, he organized a corporation under the name of the F. G. Stewart Company (one of the appellees), which company commenced the manufacture and sale of dyspepsia tablets under the name of “Dr. Stewart’s Dyspepsia Tablets.” They are put v. in boxes two and one-half inches square and three-quarters of an inch in depth. The boxes are indigo blue in color, and are covered with a sealed wrapper of glazed paper of the same color. On the top and at the bottom of the wrapper are broad circles in silver, inclosing printed matter, also in silver. On the sides of the wrapper there is also printed matter in silver. Inside the broad circle on the top of the box are the words in large print in silver, “Dr. Stewart’s Dyspepsia Tablets, 50c.” The box is less highly glazed than the wrapper, but contains the same printing, in the same color and form, and is of the same indigo blue color. At the time of so engaging in this business the appellees knew of the business of the appellant, knew of the name by which his tablets were known, and almost at the 'very outset of the business were cautioned by wholesale dealers that they were encroaching upon the rights of the appellant. The master found, among other things, “that the similarity in sound between ‘Stuart’s Dyspepsia Tablets’ and ‘Dr. Stewart’s Dyspepsia Tablets’ is such as would be likely to deceive a careless person, and even an ordinarily careful person, but that the appearance of the respective packages is such that no reasonably careful person could mistake one for the other. They differ materially in size and shape, and most radically in color, and in the style, color, and general appearance of the printed matter. Besides the particulars enumerated, another important difference, and one which is calculated to attract immediate attention, is in the fact tha,t the defendant’s packages are covered with a sealed wrapper, while the complainant’s boxes have no wrapper at all, and are not sealed in any way. Other respects in which the defendant’s packages differ from the complainant’s are in the presence of the abbreviation ‘Dr.,’ the absence of the fac simile of signature, and the different spelling of the name ‘Stewart.’ ”</p>

<p>In Error to the Circuit Court of the United States for the Distriot of Massachusetts.</p> <p>This was an action at law by William H. Allen against the city of Boston for the infringement of a patent. The defendant brings error.</p>

This was a suit in equity, brought by the Joliet Manufacturing Company against the Sandwich Enterprise Company, J. L. Rodgers, E. Doan, H. N. Woodard, S. F. Sedgwick, A. D. Wallace, and William Radley for the infringement of a patent. From a decree for complainant, defendants appeal.

<p>This is a suit in equity by Alphonso E. Kenney against George W. Bent for infringement of a patent.</p>

<p>1. Patents—Construction of Claims—Effect of Specification.</p> <p>While the claim and specification of a patent may be read together for the purpose of better understanding the meaning of the claim, the specification cannot be accepted as enlarging or extending the invention stated in the claim itself.</p> <p>2. Same—Trolley Track.</p> <p>The Coburn patent, No. 365,240, as to' claim 1, for a trolley track, is void for want of patentable invention.</p>

<p>1. Patents—Marking Artigues “Patented. ”</p> <p>Bev. St. § 4900, in relation to marking articles “patented,” does not apply, so as to prevent the recovery of damages for infringement, when the patent has lain dormant. Campbell v. Mayor, etc., 81 Fed. 182, approved.</p> <p>2. Same—Damages for Infringement—Evidence.</p> <p>In an action for damages for infringement, neither the amount of royalty paid by defendant to the owner of another patent under which the article alleged to infringe was manufactured, nor the amounts received by plaintiff in settlement of claims against other infringers, is competent as evidence on the question of damages.</p> <p>8. Same—Pleading—Audegation of Evidence.</p> <p>In an action for infringement, an allegation in the declaration that certain sums paid or received in other cases constitute a fair measure of damages is not an allegation of an issuable fact, but merely of evidence, and is demurrable.</p> <p>4. Same—Compromises.</p> <p>The rule of Rude v. Westcott, 130 TJ. S. 152, 9 Sup. Ct. 463, applied, holding.that compromises of suits against other infringers are not ordinarily relevant to the question of damages in actions for infringement.</p>

<p>This was a suit in equity by Nathan O. Boss, trustee, against the city of Chicago, for infringement of a patent.</p>

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

<p>Appeal from the District Court of the United States for the District of New Jersey.</p> <p>This was a libel by Theodore Smith and others against the steam tug Bertha (Grafton M. Milliken, claimant) to recover a balance alleged to be due under a contract in pursuance of which libelants had placed a new boiler in the tug. The respondents filed a cross libel, claiming damages because of defective performance of the work.</p>

This was a proceeding by the United States for the condemnation of the steamship Olinde Rodrigues as prize of war for attempting to evade the blockade of the port of San Juan, Puerto Rico.

<p>Prize Proceedings—Transfer of Condemned Vessel to Another District for Sale—Libel for Salvage.</p> <p>A vessel which, after condemnation as prize, is taken by the marshal into another district for sale, under Rev. St. § 4G29, remains under the actual jurisdiction of the court wherein condemnation was had, and iliat court will not grant leave to a third person, wlio claims to have rendered salvage services to her in such other district, to libel her there to recover compensation. The remedy of the alleged salvors is either by intervention in the prize proceedings, or by direct application to the government for an allowance.</p>

This was a libel against the steam canal boat Hugo Keller for collision. On final hearing. On the morning of May 14, 1895, at about 10 o’clock, the libelant’s steam canal boat Clytie, pushing her consort the Ryan and towing two other canal boats on a 850-foot hawser, was proceeding westerly from the city of Syracuse on the Erie Canal. The boats were partially loaded. At Geddes, a short distance west from Syracuse, the canal makes a sharp turn towards the north.

This was an action, brought in a state court, by the Michigan Stove Company against the Waco Hardware Company. The defendant having answered, setting v. a demand in reconvention, the plaintiff removed the cause to the circuit court of the United States, where a motion to remand was denied, and a trial resulted in a judgment for plaintiff. Defendant brings error.

<p>Heard on Motion to Set Aside the Service of Process.</p>

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

<p>1. Letter Carriers—Suit against United States—Jurisdiction.</p> <p>Letter carriers in the postal service are officers of the United States, within the meaning of the amendment (30 Stat. 195) to section 2 of the judiciary act of 1887, laking away from circuit and district courts jurisdiction of suits against the United States by such officers to recover fees or compensation.</p> <p>2. Review on Error—Effect of Amendment of Statute — Abatement of IVrit.</p> <p>An amendment of the statute taking away ihe jurisdiction of the circuit or district court over a case after judgment therein, and while a writ of error for its review is pending in the circuit court of appeals, deprives the latter court of the means of making its judgment effective by means of a mandate to the court below, and the writ of error will be abated.</p>

<p>This is a suit by Samuel Fairchild to recover fees as an officer of the United States.</p>

<p>On Demurrer to the Declaration.</p>

<p>Appeal from the Circuit Court of the United States for the Middle District of Tennessee.</p> <p>This is a bill filed by a stockholder of the Nashville, Chattanooga & St. Louis Railway Company, in behalf of himself and all other stockholders in said railway company who may desire to become parties complainant thereto, against the Nashville, Chattanooga. & St. Lonis Railway Company and the Louisville & Nashville Railroad Company. The object of the bill is to obtain the cancellation of a lease entered into between the two corporations, whereby the Louisville & Nashville Railroad Company leased to 1he Nashville, Chattanooga & St. Louis Railway Company, for a term of 99 years, two lines of railroad connected and constituting a line of railway from Paducah, in the state of Kentucky, to Memphis, in the state of Tennessee. Separate demurrers were filed by each of the defendant companies, which were sustained by the circuit court, and the bill dismissed. The averments of the bill ¡ire substantially these:</p> <p>(1) The complainant is a citizen of the si al. of New York, and is now, and has been for several years, an owner of shares in the capital stock of the Nashville, Chattanooga & St. Louis Railway Company, of the par value of 81,000,000.</p> <p>(2) The Nashville, Chattanooga & St. Lonis Railway Company is a corporation of the state of Tennessee, organized under a special legislative- charter granted December 11, 1845, and owns and operates an original line of railway extending from Nashville to Chattanooga. Since the construction of its original line, said corporation has constructed, purchased, or leased several other lines of railroad now operated as one system in connection with its said main or original line. Among such acquired lines is one known as its St. Louis Division, extending from Nashville, via Hollow Rock and McKenzie, to Hickman, Ky. The capital stock of said company now consists of $10,-000,000, divided into shares of $100 each.</p> <p>(3) The Louisville & Nashville Railroad Company is a corporation of the state of Kentucky, chartered by a special act of the general assembly of that stale, approved March 5, 1850; and its main and original line extends from Louisville, in Kentucky, via Bowling Green, to Nashville, in Tennessee, a distance of 185 miles. Since the construction of said original line it lias purchased, eonsfructed, leased, or otherwise extended its said line, until it now operates as one system some 3,000 miles of railroad. Among the additional lines thus acquired, is a railroad extending from its said main line at Bowling Green, in Kentucky, to Memphis, in Tennessee, via Paris and McKenzie, and known as the Memphis Division. It also acquired, and is now operating, a line from Nashville, in Tennessee, toSt. Louis, in Missouri, via Evansville, Ind.. and a line from Nashville to Decatur, Ala.; thence to Montgomery and Mobile, and thence to New Orleans. Besides these lines, it acquired a line from Louisville to Cincinnati, and numerous branch lines, both in Kentucky and Tennessee. Two other roads were subsequently acquired by said Louisville & Nashville Railroad Company, which form a continuous line from Paducah, in Kentucky, via Paris, Hollow Rock, Lexington, and Jackson, to Memphis, Tenn. This line of railway is the subject of the contract of lease between the two defendant corporations, which it is the object of the bill to set aside. This line so leased includes two originally separate railroads, originally constructed and operated by two distinct corporations. The title of the Louisville & Nashville Railroad Company to these two roads is thus stated'by the bill: That part of the line extending from Paducah, in Kentucky, to Lexington, Tenn., was constructed and owned by the Paducah, Tennessee & Alabama Railway Company, a corporation organized under the laws of both Kentucky and Tennessee. The remainder of the line was constructed and owned by the Tennessee Midland Railroad Company, a corporation of the state of Tennessee. Both companies became insolvent, and defaulted in interest payments upon mortgage bonds. Under distinct foreclosure proceedings in the circuit court of the United States for the districts of Kentucky and West Tennessee, those roads were sold, and bought by one J. W. Phillips, whose bid upon each was $1,000,000, chiefly payable in the mortgage bonds of the respective companies. Phillips’ bid was much less than the mortgage debt of either road. The conveyance to Phillips of the properties so sold is dated December 13, .1895. Subsequently, Phillips conveyed the same properties to the Louisville & Nashville Railroad Company for a recited aggregate consideration of $3,093,000. This deed bears date as of December 14, 1895. .</p> <p>(4) The bill further charges that in 1879 or 1880 the Louisville & Nashville Railroad Company purchased $5,500,000 of the $10,000,000 capital stock of the Nashville, Chattanooga & St. Louis Railway Company, and has ever since owned and controlled same. This stock, constituting a majority of the shares of the said Nashville, Chattanooga & St. Louis Railway Company, was conveyed in trust to the Central Trust Company of New York, to secure an issue of bonds, with the proviso that the voting power belonging to said shares of stock should be exercised by the said Louisville & Nashville Railroad Company, by means of proxies to be given to it, or its appointees, by the said trust company, from time to time. The bill specifically avers that “this purchase of stock was made for the direct purpose of overcoming a mischievous rival, and of increasing the revenue of the Louisville & Nashville Railroad Company, to the loss of the Nashville, Chattanooga & St. Louis Railway Company.” It is further charged that “the Louisville & Nashville Railroad Company, by virtue of this ownership of the majority of stock in the Nashville, Chattanooga & St. Louis Railway Company,'has for years dominated and controlled the policy and. business of the latter road, and still dominates and controls it, though the Nashville, Chattanooga & St. Louis Railway Company is operated in its own name.” It is charged that through the voting power of this stock “it has from year to year elected a board of directors subservient to its own purposes,” and that the present board of directors, which includes as a member Mr. M. H. Smith, the president of the Louisville & Nashville Railroad Company, was elected by the vote of its shares; and that this board, as well as its predecessors, in office at the time of the transaction complained cf. are entirely subservient to the will, wishes, and interests of the said Louisville & Nashville Railroad Company.</p> <p>(5) The history of the contract under which the two roads were leased to the Nashville, Chattanooga & St. Louis Railway Company,- as stated in the bill, is this: The board of directors of the Nashville, Chattanooga & St. Louis Railway Company, during the entire time covered by the transactions complained cf. was composed of 15 members. On the 13th of December, 1895, a called meeting of the board was held, at Nashville, at which were present only eight members, to wit, J. W. Thomas, G. M. Fogg, A. H. Robinson, M. Burns, J. H. Eakin, E. L. Jordan, N. C. Collier, and J. G. Aydelotte. At that meeting a resolution was adoiJted in these words: “Resolved, by the board of directors of the Nashville, Chattanooga & St. Louis Railway Company, that the lease by the Louisville & Nashville’Railroad Company to this company of the railroads and properties of the Tennessee Midland Railway and the Paducah, Tennessee & Alabama Railroad for a period not exceeding six months, upon such terms and conditions as may be approved by the president of this board, be, and is hereby, ratified and approved, and the president and secretary are hereby authorized, empowered, and directed to execute such contracts as may be necessary to put same into effect.” December 17, 1895, another called meeting of the board was held, there being only eight members present, when an agreement for a 99-year lease was laid before the board, and ratified by a resolution in these words: “Resolved, by the board of directors of the Nashville, Chattanooga & St. Donis Railway Company, that the lease by the Louisville & Nashville Railroad Company to this company of the railroads and properties of the Paducah, Tennessee & Alabama Railroad and the Tennessee Midland Railway, as this day read, be, and the same is hereby, approved, subject to ratification by the stockholders; and the president and secretary are hereby authorized, empowered, and directed to execute said lease.” Another called meeting of the board was held on September 9, 1896, at which was present complainant, Rogers, then, but not now, a director, and eight others. At said meeting the final lease was adopted by the vote of all save complainant, who protested and voted against its adoption. This adoption was not subject to ratification of the shareholders, as was the case with the action taken at the preceding meeting. On the same day, and immediately after this action, the annual meeting of the stockholders was held for the purpose of considering this lease and selecting a board of directors. Without doing either, this meeting was adjourned until December 8, 1896, by the Vote of the shares held by the Louisville & Nashville Railroad Company. Complainant attended the said stockholders’ meeting for the express purpose of opposing and defeating said lease, and had been given proxies by other minority stockholders to be voted in the same way, and represented and held proxies for more than 25,000 shares, a sufficient number to have defeated the lease under the law as complainant insists the law to he. To the adjournment he objected and protested, having, as he stated, traveled a thousand miles to defeat the lease. Complainant was unable to personally al. tend at the stockholders’ meeting of December 8, 1896, but was represented at the meeting by others holding his proxy. Of 100,000 shares in all, 97,033 were present or represented. Of these, J. W. Thomas, president of the Nashville, Chattanooga & St. Louis Railway Company, held or represented 71,033 shares, Including the 55,000 shares owned by the Louisville & Nashville Railroad Company. The minority opposing said lease held or represented 26,545 shares, a number sufficient to defeat its ratification if submitted. This- minority demanded that all votes should be taken according to the scale of votes prescribed by section 20 of the charter, whereby no one stockholder was authorized to cast more than 500 votes. The chairman ruled that the charter had- been legally amended so that each share should cast one vote, and this ruling was sustained by a share vote. To this the minority protested. An’ effort to elect a directory opposed to this lease was thus defeated, the controlling shares held by the Louisville & Nashville Railroad Company being cast in favor of a ticket which included Its president, Milton H. Smith, and seven of the old directors, who had supported the adoption of the lease without ratification hy the shareholders, thus securing a majority in the interest of the lease. After the transaction of some other business, not material here, the meeting was adjourned, over the protest of the minority, who endeavored to prevent such adjournment, and to have action taken in reference to said lease.</p> <p>(6) The lease thus procured provides: First. That- it is to be subject to a mortgage made by the lessor company to secure an Issue of its 4 i>er cent, bonds aggregating 85,000,000, the lien whereof is to be prior in right to the interest acquired by the lessee. Second. That the lessee should pay annually during the said term $154,650, “being at the rate of 5 per cent, per annum on $3,093,000, the purchase price paid for the said properties.” Third. An additional rental is to be paid of 5 per cent, upon any sums expended by the lessor during- the term, not exceeding in all $1,200,000, in improving- the leased property or supplying- additional equipment. All such expenditures to be the subject of agreement between the parties, or in default of an agreement, referred to arbitration. Fourth. The lessee to pay all taxes and assessments against the property, and to keep, maintain, and preserve the property and equipment as well as all betterments or additions, “in as good repair as they now are, or as the same may be when they come into existence,” and to operate the said roads in such manner as to discharge all the lessor’s public duties, and keep the same free from all liens of judgments, taxes, or charges of any kind, and to indemnify the lessor against all liability for loss or damage arising out of the operation of the said roads. Complainant charges that this lease thus imposed upon the Nashville, Chattanooga & St. Louis Railway Company, through the controlling influences of the lessor company, is most unfair and unjust in its terms, and will destroy the capacity of the lessee company to pay dividends, and thereby greatly impair the value of its stock. In support of this conclusion, complainant charges that the lines so leased had, before their acquisition, been operated as one line under agreement of the companies owning them, and constituted a competing and parallel line with the Memphis Division of the Louisville & Nashville Railroad Company; that this competition was between Paris and Memphis, and that travel and freight were diverted both at Paris and Hollow Rock from said Memphis Division; that the purpose in buying same was to stifle this competition; that neither road had ever been profitable property, and had not been able to make “operating expenses and fixed charges.” The rental reserved is charged to be burdensome, and that the mere profit between the interest paid by the lessor upon the bonds issued to purchase same and the annual rentals received is more than $30,000 per year, and that this profit will be increased through further increase of rentals as improvements are made upon the leased road. It is also pointed out that, though the lease is subject to the lessor’s mortgage, it contains no covenant of quiet enjoyment, or termination in case of foreclosure by mortgagee. The title of the Louisville & Nashville Railroad Company to the property so leased is challenged upon the ground that it has ho power to buy said railroads.. The power of either company to enter into a contract for the leasing of said railroads is also denied, and the validity of the lease brought into question. The power of the Louisville & Nashville Railroad Company to own or vote upon the shares it claims of the capital stock of the Nashville, Chattanooga & St. Louis Railway Company, and the legality of the existing directory elected by the vote of said shares, is also denied.</p> <p>Complainant says that, though he was a member of the board of directors which entered into this lease, yet he had no notice of either the first or second directors’ meeting, notice of the first being mailed too late to reach him at his residence, in New York; that he was present at the meeting on September 9, 1896, and protested and voted against same; that he then owned and held proxies for more than 26,000 shares, and attended the meeting of shareholders called for September 9, 1890, with the avowed object of opposing and defeating the ratification of said lease, holding and representing the requisite number of shares to defeat its adoption, inasmuch as the authority to lease said road depended upon the ratification of the lease by three-fourths of the shares voting. Although the official notice of said meeting stated that the ratification of this lease was to be submitted to the stockholders at said meeting, yet complainant charges that this was not done, but that the meeting was adjourned over his.protest without allowing any action to be taken until December 8, 1896, Complainant charges that both before and after said September 9, 1896, he objected and protested against said lease by letters and by conversations with J. W. Thomas, the president of the said Nashville, Chattanooga & St. Louis .Railway Company; that at the December meeting of the stockholders he was not suffered to bring the matter to a vote, the meeting being again adjourned by the controlling vote of the lessor company. He denies that the suit is a collusive one, or brought by him for the purpose of giving to a federal court a jurisdiction which it would not have if the suit had been brought by the Nashville, Chattanooga & St. Louis Railway Company. He concludes by saying that “he has exhausted all the means within his reach to obtain redress of the grievances within the corporation itself; that a demand on the directors to bring the present suit would be futile and useless for the many reasons herein set forth.” The prayer of the bill is that the said proposed lease “be declared ultra vires, invalid, and not binding upon the said Nashville, Chattanooga & St. Louis Railway Company, and order the same surrendered and canceled.” There is also a prayer for other and general relief, etc.</p>

<p>Receivers—Grounds for Appointment—Private Corporations.</p> <p>The mere insolvency of a private corporation, .arising from no proved fault in the management, is not sufficient ground for the appointment of a receiver. ' Without some evidence of waste, extravagance, carelessness, or fraud, which gives ground to apprehend that the property will suffer deterioration or serious injury, and that the court can interfere usefully, it will not impose upon the corporation the additional burden of the expense of a receivership.</p>

<p>1. National Banks—Transfers of Property when Insolvent—Validity.</p> <p>Rev. St. § 5242, making void any transfer of property or payment of money by a national bank when insolvent or in contemplation of insolvency, with a view to prefer a creditor or to prevent the application of its assets in the manner prescribed by the statute, has reference to the payment or securing of existing debts, and does not render invalid transfers by way of security for a loan then obtained, and of which all creditors presumptively receive the benefit, although, as a part of the same’ transaction, it is agreed that the security given shall also stand as security for an antecedent indebtedness to the person making the loan. While such agreement is invalid, if the creditor acts in good faith, and in the belief that the bank is solvent, it does not deprive him of the right to the security, to the extent of his present advances.</p> <p>2. Same—-Invalid Conveyance as Security—Equitable Mortgage.</p> <p>The president of a national bank, wlio owned a majority of its stock, and exercised full control of its affairs, with the acquiescence of the directors obiained a loan for the bank at a time when it was in fact insolvent, though it was not known or believed to he so by the lender. As security the president executed a deed to the bank building and lot; producing what purjiortod to be a certified copy of the minutes of the action of the board of directors authorizing the conveyance, though no such action had in fact been taken. Bcld that, it being consistent with the course of decision in the state,, the deed, though insufficient as a legal conveyance by the bank, v onld be upheld as an equitable mortgage.</p> <p>3. Same—Dei,ay in Recording Mortgage.</p> <p>The fact that such deed was not recorded until the day the bank closed its doors did not entitle the general creditors of the bank to have It set aside, where there was no agreement to withhold It from record, and, under the laws of the state, it was good as a mortgage, as between the parties, though not recorded.</p>

<p>J. Equity—Laches—Suit for Accounting.</p> <p>Where there has been unreasonable delay, or apparent acquiescence for a considerable time, a court of equity will refuse to entertain a bill for an accounting, though not barred by limitation, from considerations of public policy, growing out of the difficulty of doing entire justice after the lapse of such time.</p> <p>2. Same—Allegations of Bill Considered.</p> <p>]¡n 1896 plaintiff filed a bill, from which it appeared that, by the terms of a lease made in 1878, defendant agreed to account for and pay over to plaintiff and his partner annually, ending in 1884, a share of certain profits earned each year, which it guarantied would amount to a specified sum annually. Each year the defendant paid over the sum so guarantied, which was accepted. Plaintiff’s partner died in 1886, and plaintiff, since about that time, and until the filing of the bill, has resided abroad. It was alleged that the share of the profits to which plaintiff and his partner were entitled under such contract largely exceeded the amounts paid, and an accounting in relation thereto was asked. It was not shown that plaintiff, or his partner in his lifetime, ever made objection or complaint as to the amounts paid by defendant. Held, that the showing was insufficient to excuse the delay in bringing the suit.</p>

<p>Insolvent Corporations — Powers oe Reorganization Committee — Right . Oi' Stockholders.</p> <p>A reorganization committee, appointed by Folders of the stock and securities of an insolvent railroad corporation, in whose hands have heen placed many millions of dollars’ worth of different securities, held In many rights, for the purpose of effecting a reorganization of the corporation upon the same franchises, must necessarily be accorded a wide discretion; and where, by the agreement under which it acts, it is given “absolute and complete discretion and latitude in the use, disposition, and distribution” of the reserved securities of the new corporation, a court of equity will be authorized to interfere with such distribution only upon a consideration of the entire arrangement of compromises, concessions, and inducements made by the committee; and a bill by a stockholder, merely alleging that certain acts of the committee, in purchasing securities of the old company, and in distributing securities of the new, are foreign to the purposes of the committee, and unauthorized, is insufficient to show an equitable right to an Injunction or to an accounting by members of the committee.</p>

This case has been argued and submitted upon a motion by the plaintiff for a new trial. The action is to recover damages for a personal injury suffered by the plaintiff while working in the defendant’s coal mine.

This was an action for breach of a contract for the sale and delivery of hops at intervals extending over five years. There was a judgment for plaintiffs (84 Fed. 5(55), and defendant brings error.

<p>In Error (o the Circuit Court of the United States for the Eastern Division of the Southern District of Georgia.</p> <p>The plaintiff in error states its case as follows: The action involved in this case is one of assumpsit on an account for cross-ties alleged to have been furnished by Scarlett Eros., a firm composed of F. M. Scarlett and J. H. Scarlett, to the plaintiff in error. It was originally brought in the superior court of Glynn county, and was removed to the United States court by the plaintiff in error. At the trial in the court below, defendants in error abandoned in open court the last item of their account, for 52,000 ties, for which ,81,820 were charged, thus leaving the principal amount of their claim 82,910.87. The verdict of the jury was for $1,840.32, with interest from January 1, 1894. The railroad company had a contract with the Southern Supply Company for the building and construction of the Georgia Branch of its railroad, including the section involved in tills suit The Southern Supply Company luid another, with J. F. Hall & Son, as subcontractors, -whereby Hall & Son agreed to furnish the ties for the building of the line of road to the said company; and Hail & Son had another contract, with Scarlett Bros., dated June 14, 1893, under which Scarlett Bros. were to cut and deliver ties to Hall & Son. The railroad company liad no contract or privity with Scarlett Bros. All the ties taken by the railroad company were taken as those to which they were entitled under the contract between the Southern Supply Company and its subcontractors, Hall & Son, and in express denial of any claim or right, thereto by Scarlett Bros., its engineer and the manager of Hall & Son claiming these ties under these contracts, and the railroad company taking- them against the objection of Scarlett Bros. As stated in the record: “It being admitted by the defendant (the railroad company] that unless the assignment of errors hereinafter staled, and which appertains exclusively to the question as to the right of plaintiffs to recover in their form of action, is not well taken, the verdict in favor of the plaintiffs is warranted under the conflict of evidence. A fuller statement of the evidence for defendant is omitted by consent of counsel, and with the approval of the court, because it will not help to illustrate the points made ill' this bill of exceptions.” It also appears that the “testimony of the defendant proceeded in denial of the claim of plaintiffs that the ties belonged to plaintiffs, and was upon the lines that defendant had used .no cross-ties belonging to plaintiffs, or to which plaintiffs were entitled, and that defendant had paid the Southern Supply Company for all of the ties used, which company had settled with Hall & Son.” Although the railroad company had paid the Southern Supply Company for all the ties which it had used, and this company had, in turn, settled with Hall & Son, and although it insisted, by its testimony and contention, that the ties taken were properly taken urn der these contracts, it is yet admitted that, if the court’s instructions to the jury touching the right of Scarlett Bros. to recover in their form of action are correct, the verdict in their favor is warranted, under the conflict of evidence touching the question as to whether any of their ties were taken.</p> <p>The errors specified and relied on appear in the first and second assignments of error, and in the bill of exceptions. They really raise only one question of law, and are covered by the exception to the refusal of the court to give the written request of the railroad company, duly submitted, to the effect that “plaintiffs sue for the ties which they allege they furnished to the defendant. It appearing by their evidence that their claim is for ties not furnished,' but taken against their objection, they cannot recover in this case”; and to the charge of the court in the following words: “This is an action brought by the plaintiffs, Scarlett Brothers, against the Florida Central & Peninsular Kailroad Company, upon an alleged indebtedness of §2,940.87 and interest. The plaintiffs were manufacturers of cross-ties, near the defendant company, and the claim is based upon the alleged facts that the defendant took and appropriated for its own use a lot of cross-ties belonging to the plaintiffs, of the value of the claim, which had been deposited along the line of the defendant’s road. These were taken, it is insisted by the plaintiffs, notwithstanding the defendant was notified not to take the cross-ties. The suit is one, not to recover damages for the alleged trespass upon the plaintiffs’ rights, but upon the implied contract which exists in all such cases on the part of a person taking property to pay the owner the market value thereof, the law being that, when property has been taken or retained without the consent of the owner, the owner may waive his action for damages, and sue upon an implied promise to pay the value of the articles so taken,”—“the objection to this charge being that the ease made by plaintiffs’ evidence was one of mere tort, if their evidence was to be believed, for which either trover or trespass would lie, and which prevented the implication of any contract to pay, and, further, because it was not claimed by plaintiffs, and there was no evidence to show, that the defendant railroad company had converted the ties into money.”</p>

<p>Review—Instructions—Verbal Defects.</p> <p>The fact that terms used by a judge in charging a jury may not have been so nicely chosen as to defy criticism is not ground for reversal, when the charge, taken as a whole, does not appear to have been misleading.</p>

<p>This was an action at law by Elizabeth C. McKown, executrix of James C. McKown, deceased, against the Manhattan life Insurance Company on a policy of life insurance.</p> <p>On trial, the court charged the jury orally as follows:</p> <p>Gentlemen of the Jury: This is an action brought by Elizabeth C. McKown, executrix of James C. McKown, deceased, against the Manhattan Eife Insurance Company. The suit is upon a policy of life insurance effected by James O. McKown, who was the husband of the plaintiff, iu the year 1883. He kept the policy alive, first by payment of annual premiums, and then by payment of quarterly premiums, until his death on the 2d clay of June, 1897. The policy is for §10,000. It appears that due proofs were furnished the company of the death of the insured; and, as I have stated, the evidence is (hat, by the payment of the premiums, the policy was kept in force until Mr. McKown died; so that Uie case, as presented to the court and jury, is a case of life insurance effected and kept in force until the death of the insured, and proper death proofs furnished. Now, upon such slate of proofs, the liability of the company to pay the insurance to the representative of the estate of the deceased is clear. This policy was in Mr. McKowu’s own name, and it was payable at his death to his executor or administrator. His wife, the present plaintiff, is the executrix of the estate of Mr. McKown, under his will. She, therefore, as executrix, has the legal title to this money, and she is here in a court of law, suing upon the insurance policy. She claims to be the assignee of this policy, and she has asserted, through her counsel here, a right to this money in her individual capacity as assignee. That question is not determinable here. She is not suing upon her alleged equitable tille, and that is not involved In this action. It seems that her husband was very largely indebted at the time he executed an assignment of the policy to his wife. He was very largely indebted to the defendant company, and that company lias judgments against him to the amount cf. perhaps, §38,000. A very large part of that debt—to an amount certainly in excess of §10.000—was due by him to this company when he made the transfer to his wife. That was undoubtedly a voluntary assignment to her,—an assignment without consideration,—being for a nominal consideration of one dollar. She may ultimately, as against the creditors of her husband,—as against this defendant,—maintain her asserted title as assignee to this money, but she cannot maintain that claim in this court in this proceeding. 1 repeat that she has brought an action at law upon her legal title as executrix; and, without any question as to what may ultimately be her rights as against the creditors of her husband, in her capacity of executrix she is entitled to a verdict and judgment here. Her right to recover upon her legal title is involved in the last point presented by her counsel, and that point requires me to say to you, as a matter of law, that, as executrix of the estate of her husband, she is entitled to a verdict for the amount of this policy, with interest from the. time that it fell due. The defendant, the insurance company, pleads a set-off; and I am asked to instruct you, by points submitted by defendant’s counsel, that that set-off must be allowed here, and a certificate in favor of the insurance company be returned by the jury for the balance due to the company as between the 810,000 and the judgments. I refuse to give you those instructions. That set-off cannot be asserted here. To allow it would be to disturb the course of the administration of the estate of James O. McKown. It is evident, from the testimony in this case, that he died insolvent, and that he was insolvent when the policy was assigned to his wife. If this set-off were allowed, the whole of this asset of MeKown’s estate would be appropriated to one creditor. That cannot be done. So that the conclusion of the whole matter is this: that in this action there must be a verdict for the plaintiff, as executrix of her deceased husband; and if, as alleged by the creditors, the insurance money belongs to the estate, then they must call upon her to file •m account as executrix, and to account for this fund to the orphans’ court, and that tribunal, if the insurance money belongs to the estate, will distribute the money. I may add, to avoid all further, trouble, that, in so far as the title of this suit states the action to be for .the use of Elizabeth O. McKown, it is surplusage, and can have no sort of effect upon the ultimate rights of the parties here. Xour verdict will be a verdict in favor of Elizabeth O. McKown, as executrix of James O. McKown, deceased. The long and short of it is this: Mrs. Mc-Kown has brought an action at law in this court as executrix of James C. McKown, deceased. She must recover on her title as executrix. She cannot recover in any other way in this court of law in this action. Her alleged title as assignee is not involved here. We cannot here determine whether the money shall go to her ultimately, or whether the creditors of her deceased husband can compel her to account for it. So that the jury will render a verdict for the plaintiff for the amount of the insurance, with interest.</p> <p>Sur motion ex parte defendant for a new trial. For opinion on appeal, see 90 Fed. 646.</p>

<p>1. Bankruptcy—Property Vesting in Trustee—Cause or Action in Tort.</p> <p>A right of action for damages for a malicious prosecution and arrest, suffered by the plaintiff before his adjudication as a bankrupt, constitutes no part of his estate in bankruptcy, and does not pass to or vest in the trustee.</p> <p>2. Same—Prosecution by Trustee or Pending Suits.</p> <p>Bankruptcy Act 1898, § 11, providing that the trustee in bankruptcy may, with the approval of the court, “he permitted to prosecute as trustee any suit commenced by the bankrupt prior to the adjudication,” relates only to actions in which the estate of the bankrupt bas an interest, and which may he prosecuted by the trustee for the benefit of the creditors.</p> <p>3. Same—Bankrupt Prosecuting Pending Action or Tort.</p> <p>Where, prior to the adjudication, the bankrupt had begun an action in a state court to recover damages for a malicious prosecution and arrest, tho court of bankruptcy has no jurisdiction to control him in the further prosecution of such suit, the right of action therein not vesting in his trustee; and the bankrupt needs no permission from the court of bankruptcy to prosecute such suit to judgment.</p>

<p>In Bankruptcy.</p>

In Bankruptcy. Submitted on petition of creditors praying a review of the ruling of the referee upon the question whether an endowment policy owned by the bankrupt is wholly exempt under the provisions of the bankrupt act.

<p>In Bankruptcy. Application by creditors of the alleged bankrupt for an order directing the marshal to seize certain property in the possession of a third person.</p>

<p>Bankruptcy—Jurisdiction op Actions by Trustee.</p> <p>Under Bankruptcy Act 1898, § 28, providing that suits by a trustee in bankruptcy shall be brought or prosecuted only in those courts whore the bankrupt might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, a-court of bankruptcy has no jurisdiction of an action by such trustee to set aside an alleged fraudulent conveyance made by the bankrupt to a defendant who is a citizen of the same state with the bankrupt and the trustee.</p>

In Bankruptcy. On,petition of creditors for the appointment of a receiver to take charge of assets of the alleged bankrupt, and-to enjoin his assignee,, under a previous general- assignment, from proceeding with the administration of the estate.

<p>This was a prosecution .by the United States of John Fitzgerald under the provisions of Rev. St. U. S. § 5430.</p> <p>There was found in the defendant’s possession a paper purporting to be a certificate for 100 shares of the capital stock of the Denver Mining Company, of the par value of $1,000. Said certificate, as to its size, quality of paper, and style of printing, resembles a United States bond for the sum of $1,000, and upon the face of it there are printed above the purported certificate, the following words and figures:</p> <p>“$1,000. " $1,000.</p> <p>“The</p> <p>“UNITED STATES</p> <p>“Number $1,000 Letter A.</p> <p>“ONE THOUSAND DOLLARS.”</p> <p>The paper also has a heavy green border and scroll work resembling somewhat the ornamentation of United States bonds. The matter having been brought to the attention of an officer of the secret service bureau of the United States, and having been by him referred to the chief officer of said bureau, instructions were sent from Washington to prosecute the defendant upon a criminal charge for having in his possession, without authority from the secretary of the treasury, or any officer of the United States, an obligation or other security engraved and printed after the similitude of an obligation or other seeeurity issued under.the authority of the United States, with intent to sell or otherwise use the same, in violation of section 5430, Rev. St. U. S. It was deemed to be proper for the government to prosecute, for the reason that it is within the knowledge of the officers of the secret service bureau that bogus certificates similar in style and design to this one are frequently used as instruments for swindling. A true bill of indictment under said section of the statute was brought in by the grand jury against the defendant, who, upon being arraigned, entered a plea of not guilty, and the case was tried before the court and a jury, resulting in a verdict of not guilty. In submitting the case to the jury the court gave instructions orally.</p>

This Is a bill to restrain the defendants from using a multitude of alleged trade-marks first adopted and used by complainant. The defense was that the letters and numerals so adopted and used were not adopted or used as trademarks, and did not serve the purpose of trade-marks, but were definitions of things, and had no significance in designating the origin or manufacturer of the parts so identified.

<p>1. Patents—Burdiss of Proof as to Anticipation—Measure of Proof Required.</p> <p>The burden of proving anticipation or want of originality in a paten! rests upon the party alleging it, and the evidence must be so clear and convincing as to place the matter beyond reasonable doubt, particularly where the patent in suit has been held valid in a former contested case.</p> <p>S. Same—Anticipation—Prior Patent.</p> <p>The sufficiency of the description in a prior patent, alleged to be anticipatory, must be tested by the knowledge of persons skilled in the art as it existed at the date of such patent.</p> <p>8. Same.</p> <p>An impracticable prior device, not capable of performing the function of a subsequent patented device that is practicable and useful, is not an anticipation.</p> <p>4 Same—Dredging Apparatus.</p> <p>The Bowers inventions, relating to apparatus for hydraulic dredging, embodied in patents Nos. 318,859, 318,800. 372,956, and others, were not anticipated by the English patent of Schwamkopff, No. 350 of 1856, which, while disclosing in a general way the idea of a dredging machine intended to operate as the Bowers machine does, did not describe a machine which was effective to carry such idea to a successful result, or which was ever used.</p> <p>5. Same—Construction of Claims—Pioneer Inventions.</p> <p>The Bowers patents cover inventions which are of a pioneer character, and stand at the head of the art of hydraulic dredging, and their claims are entitled to a broad construction.</p>

<p>This was a suit in equity by Robert W. Nelson and others against the Farmer Type-Founding Company and others, for the infringement of certain patents.</p>

This is a suit in equity by the New York Filter Manufacturing Company against the Loomis-Manning Filter Company for the infringement of the Hyatt patent, No. 293,740, for an improvement in the art of filtration of water. Heard on motion for preliminary injunction.

<p>1. Patents—Preliminary Injunctions—Decisions of Other Courts.</p> <p>Where a patent has been before the courts of other circuits in a number of contested cases, and its validity has been uniformly sustained, it is not an open question upon a motion for a preliminary injunction, unless a new defense is interposed, and the evidence in support of it Is so cogent and persuasive as to lead the court to the conclusion that it would have induced a contrary decision, had it been presented in the other suits.</p> <p>& Same—Suit for Infringement—Laches.</p> <p>Where defendant was notified by complainant, upon entering on the manufacture of an article, that complainant claimed a monopoly thereon under its patent, and was advised of such fact thereafter from time to time during litigation over the patent, a delay of five years in bringing suit for the infringement, during all of which time complainant was engaged in litigation with other infringers, is not such laches as will bar relief.</p> <p>3. Same—Infringement.</p> <p>Wliere a defendant is engaged in manufacturing, advertising, and selling an apparatus intended and adapted only to use the process covered by complainant’s patent, with full knowledge of such patent, he is guilty of intentional contributory infringement.</p> <p>4. Same—Improvement in Water Filters.</p> <p>The Hyatt paient, No. 293,740, for an improvement in the art of filtration of water, held valid and infringed, on motion for preliminary injunction.</p>

<p>This was a libel in admiralty for collision by Peter Nelson and others, owners of the schooner Orion, against the German ship Peru and the tugboat Belief.</p>

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

Heard on motion by a receiver for the removal of a suit brought by an intervener against the defendant, and pending in a state court.

<p>1. Jurisdiction or Federal Courts — Injunctions — Proceedings in State Courts.</p> <p>Proceedings under an execution against property, issued to enforce a money judgment rendered in a state court, are proceedings in such court, within the meaning of -Rev. St. § 720, and cannot be restrained by an injunction issued by a federal court; but, if the sheriff levies upon property not owned by the judgment defendant, his acts are contrary to the command of the writ, and are not proceedings in the court, within such section.</p> <p>2. Same—Eructarle Jurisdiction—Enjoining Execution Sale.</p> <p>Where real estate of a complainant, of which he is in possession, has been levied on under a judgment of a state court against another person, to which lie was not a party, and, under the laws of the state, complainant would be entitled to bring a suit against the purchaser at a sale under such levy, for the cancellation of Ills deed, of which suit a federal court would have jurisdiction, such court may properly entertain a preventive suit to enjoin the sale.</p> <p>3. Executors—Conveyance op Real Estate—Statute op Washington.</p> <p>The section of the Code of Washington (2 Ballinger’s Ann. Codes & St. § 6190; 2 Hill’s Code, § 955) which permits executors, when so authorized by the will, to take full control of and settle an estate, free from any control by the courts, and without being required to report their doings, is not repealed or affected, as to the conveyance of real estate, by the further provision of the statute requiring all sales of real estate by executors to be reported to the court for confirmation; and, where an estate is administered under said section, a conveyance of real estate by the executors under authority given by the will conveys a good title without confirmation. f</p> <p>4. Execution—Leviable Interest in Real Estate—Optional Contract to Purchase.</p> <p>A unilateral contract giving a person an option to purchase real estate within a specified time does not convey to such person any interest in the property which can be levied on and sold on execution against him.</p>

<p>Stockholders’ Liability—Enforcement in Federal Court—Parties.</p> <p>The Ohio statute provides that the constitutional liability of stockholders of a corporation may be enforced by an action which shall be for the benefit of all the creditors and against all the stockholders, and that in such action there shall be determined the amount payable by each stockholder on all the indebtedness of the corporation. Held that, where the contemplated statutory ascertainments had not been made, the liability would not be enforced by a federal court in a sister state in a suit by a single creditor in which neither all the stockholders nor the corporation were made parties.</p>

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

In April, 1889, the Farmers’ Doan & Trust Company filed its bill to foreclose a first mortgage on the Waco & Northwestern Division of the Houston & Texas Central Railway Company. Tho property covered by the mortgage was placed in the hands of a receiver. The foreclosure proceedings were protracted, and the property was finally sold at a foreclosure sale.

<p>National Banks—Suits by Receiver against Sham:holders—Liability of Real Owner of Stock.</p> <p>The real owner of shares of stock in a national bank, which, by bis procurement or permission, stand on the books of the bank in the name of an agent, and have never been in his own name, may be charged as a shareholder for an assessment made on the bank’s insolvency, and the receiver may bring an action at law for the collection of such assessment directly against him, without regard to the liability of the agent.1</p>

<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. .e. t. a. of the estate of John G. Beading, deceased. Beading 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. There was a verdict for defendant, but the court granted a new trial. 87 Fed. 113. The present hearing is on rules for judgment notwithstanding the verdict, and for a new trial.</p>

<p>Master and Servant—Negligence—Pleading.</p> <p>A complaint which, by fair intendment, alleges that plaintiff, while in the employ of defendant, received injuries through the failure of defendant to guard a dangerous set screw, which caught and mangled plaintiff’s arm w-hilo he was in the discharge of his duties, in ignorance of the existence of the screw, is sufficient on demurrer.</p>

<p>1. Writ of Error—Final Orders—Commitment for Contempt.</p> <p>Au order in an equity cause committing a witness, not a party to the suit, for contempt in refusing to testify, is final, and reviewable on a writ of error sued out by the witness before final decree in the cause.</p> <p>3. Federal Courts—Following State Practice—Evidence.</p> <p>Under Rev. St. U. S. § 858, providing that the laws of the state in which the court is held are the rules- of decision for the courts of the United States as to the competency of witnesses, Code Civ. Proc. N. Y. §§ 835, 836, in effect prohibiting the disclosure of instructions given by a testator to an attorney employed to draw the will, is binding on federal courts sitting in New York.</p> <p>8. Witnesses—Attorneys—Privileged Communications.</p> <p>Code Civ. Proc. N. Y. §§ 835, 836, provide that an attorney shall not disclose a communication made to him by a client, or the advice thereon, in the course of his professional employment, unless the privilege is “expressly waived upon the trial” by the client, hut that he may testify “in the probate of a will * * * as to its preparation and execution,” if he is one of the subscribing witnesses. Held, that an attorney who has prepared a codicil alleged to have been executed and published by the client, and afterwards destroyed by a third person, cannot be required to’diselose its contents, and whether it was signed in presence of attesting witnesses so as to constitute a publication, the attorney not having al. tested the codicil.</p> <p>4. Same—Fraud.</p> <p>The fact that the codicil was destroyed fraudulently, and by an executor named in a subsequent codicil, does not alter the case.</p> <p>5. Same—Extraneous Evidence of Communications.</p> <p>Nor is it material that witnesses other than the attorney were present when the codicil is alleged to have been executed and published, though they heard all that took place, and were aware of the contents of the instrument.' : -.</p>

Writ of Error to the Circuit Court of the United States for |he Northern District of Alabama. Zuma Allred, a child seven years of age, having been run over and killed at Belle Mina, Ala., by a train of the Memphis & Charleston .Railroad Company, Andrew J. McCarley was appointed administrator of her estate by the probate court of Blount county, Ala.

. This was an action by Nannie E. Connell against the Southern Railway Company to recover damages for the death of her husband, alleged to have been caused by the defendant’s negligence in the operation of one of its trains. Under instruction of the court, a verdict was returned for defendant, and plaintiff brings error.

This is an action by the United States, for the benefit of John Harney and others, against George W. Farley and others, on a contractors’ bond.

<p>1. Guaranty—Construction of Contract.</p> <p>Plaintiffs issued a letter of credit to K. S. Co. authorizing it to make drafts on London bankers in payment of the invoice price of merchandise “to be shipped” to American ports, taking an agreement from K. S. Co. at the same time to protect and secure the payment of the drafts, on which agreement defendant became guarantor. Held, that drafts made under such letter of credit, in payment for merchandise which had been purchased and shipped for an American port some three weeks before the letter was issued or the contract executed, were not within the terms of . the guaranty.</p> <p>2, Same—Misuse of Contract by Principal.</p> <p>A guarantor of the payment of drafts made under a letter of credit cannot be held liable for drafts drawn and paid thereunder, but which were not within its terms, on the ground of a misuse of the letter by his principal, where bills of lading attached to such drafts advised all parties to whom they came of the purpose for which they were made, which was one not authorized by the letter of credit.</p> <p>8. Same—Discharge of Guarantor—Release of Security.</p> <p>Where a contract gives one party a specific lien on property to secure its performance by the other, a guarantor on behalf of the second party is entitled to the benefit of such security; and, if it is surrendered without his consent, he is .discharged from liability.</p> <p>4. Same—Construction of'Contract.</p> <p>In a provision of a guaranty authorizing the obligees to grant the principal “such favors, by way of extension, renewal, and otherwise,” as they might deem expedient, the word “otherwise” is confined in meaning to favors of a like kind’ with extensions and renewals, and does not authorize the surrender of security expressly pledged by the contract, particularly where the terms on which such security might be surrendered were specifically stated in further provisions of the guaranty.</p>

This was an action at law by the Barnes Cycle Company against C. M. Beed, upon an alleged contract of guaranty. The trial court directed a verdict for defendant, and overruled a motion for new trial (84 Fed. 608), and plaintiff brings error.

Writ of Error to the Circuit Court of the United States for the Western District of Louisiana. On May 14, 1853, William W. Smith made an entry in the state land office of the state of Louisiana of a tract of land known as “Cross Lake,” containing 21s/ioo acres, and he-paid therefor $26.47. On December 8, 1857, the state of Louisiana filed a petition in the district court of Caddo parish, La., to set aside the entry and cancel the certificate.

The Penn Mutual Life Insurance Company having rejected the application of E. C. Bullock for insurance on his life, the Life Insurance Clearing Company, with knowledge of the rejection, accepted the risk, and issued a policy to Bullock, dated February 13, 1894. Bullock died on October 19, 1896. Eva M. Bullock, his widow, being the beneficiary of the policy, brought suit upon it in the circuit court of Jefferson county, Ala., against the Life Insurance Clearing- Company.

<p>Bearing on Writ of Habeas Corpus.</p>

W. S. Porter, the plaintiff in error, was tried in the United States district court for the Western district of Texas upon three indictments, numbered 1,148, 1,174, and 1,175, which had been consolidated and were tried together. The indictments are drawn under section 5209 of the United States Revised Statutes, and charge the plaintiff in error with having embezzled certain moneys of the First National Bank of Austin, Tex., while being the teller and agent of that bank.

<p>In Error to the Circuit Court of the United States for the Middle District of Alabama.</p> <p>The indictment in this case reads as follows:</p> <p>“United States of America.</p> <p>“In the Circuit Court of the United States for the Middle District of Alabama. November Term, A. D. 1896.</p> <p>“The grand jurors of the United States, elected, impaneled, sworn, and charged to inquire for the body of said Middle district of Alabama, upon their oaths do find and present:</p> <p>“That on the 28th day- of May, A. D. 1895, in said Middle district of Alabama, before the finding of this indictment, and within the jurisdiction of said court, in the county of Lowndes, in said state, Ben De Lemos did unlawfully, feloniously, and falsely make and forge a certain obligation of the United States, to wit, a draft for money, to wit, for the sum of six hundred sixty-eight 40/100 dollars, drawn by an authorized officer of the United States, to wit, by D. A. Carpenter, United States pension agent, upon the assistant treasurer <5f the United States at New York, N. Y., and which said falsely made and forged obligation of the United States is in the words following, to wit:</p> <p>“ ‘United States Pension Agency, No. 889049.</p> <p>“ ‘Knoxville, Tenn., May 22, 1895. 1S9 .</p> <p>“‘Assistant Treasurer of the United States, New York. N. Y.: Pay to the order of Thomas Cook six hundred sixty-eight *o/ioo dollars, $668.40.</p> <p>“ ‘D. A. Carpenter, Interior.</p> <p>“ ‘U. S. Pension Agent.</p> <p>“ ‘By J. M. Cates, Clerk.</p> <p>“ ‘This check should be presented for payment within 90 days.’</p> <p>“And on the back of said falsely-made obligation of the United States were indorsed the words and figures following, to wit:</p> <p>“ ‘Pay to Ben De Lemos,</p> <p>bis</p> <p>“ ‘Thomas X Cook, Payee.</p> <p>mark.</p> <p>“ ‘Paid June 1, 1895, New York.</p> <p>“ ‘Witnesses:</p> <p>“ Wm. J. Anthony, Hayneville, Ala.</p> <p>“ ‘J. S. Julian, Hayneville, Ala.</p> <p>“ ‘Ben De Lemos.</p> <p>“‘Pay-Lehman Bros., or order, for collection, for account of Lehman-Durr Company, Jos. Goetter, Y. Prest., Montgomery, Ala. Lehman Bros.’</p> <p>“And the said obligation of the United States was then and there falsely made and forged, in .this, to wit, that he, the said Ben De Lemos, did then and there falsely make and forge the name of the payee of the said draft, to wit, the words, ‘Thomas Cook, his mark,’ with the intent then and there' and thereby to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.</p> <p>“And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that at the time and place aforesaid, and within the jurisdiction aforesaid, Ben De Lemos did falsely make and forge a certain obligation of the United States, to wit, a certain draft of money, which said draft is set forth hereinabove, in first count of this indictment, and which said obligation he, the said Ben De Lemos, did falsely make and forge, in this, to wit, that the said Ben De Lemos did then and there falsely make and forge an indorsement upon the said draft in the following words, to wit, ‘Pay to Ben De Lemos, Thomas Cook, his mark,’ with 'the intent then and there and thereby to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.</p> <p>“And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that at the time and place aforesaid, and within the jurisdiction aforesaid, in the county of Lowndes, in the state of Alabama, Ben De Lemos did unlawfully, knowingly, and feloniously pass, utter, and publish as true and genuine a certain falsely-made and forged obligation of the United States, to.wit, a certain draft drawn by D. A. Carpenter, an officer of the United States, authorized to draw the said draft, to wit, a United States pension agent, at Knoxville, in the state of Tennessee, which said draft was dated May 22, 1895, payable to the order of Thomas Cook, for the sum of six hundred sixty-eight 40/ioo dollars, and which said draft was according in the tenor following:</p> <p>“ ‘United States Pension Agency. No. 889049.</p> <p>“ ‘Knoxville, Tenn., May 22, 1895. 189 .</p> <p>“ ‘Assistant Treasurer of the United States, New York, N. Y.: Pay to the order of Thomas Cook six hundred sixty-eight ¿o/ioo dollars, $(>68.40.</p> <p>“ ‘D. A. Carpenter, Interior.</p> <p>“ ‘U. S. Pension Agent.</p> <p>“ ‘By J. M. Cates, Clerk.</p> <p>“ ‘This check should be presented for payment within 90 days.’</p> <p>“And he, the said Ben De Lemos, although he well knew the said draft and obligation was falsely made and forged, in this, that the name of the payee thereof, to wit, the words ‘Thomas Cook, his mark,’ were forged in the indorsement thereon and thereto, yet ho, the said Ben Be Demos, did utter, pass, and publish the said obligation and draft, having the said indorsement thereon to be falsely made and forged, with the intent then and there and thereby to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.</p> <p>“A true bill. Frank Duncan, Foreman of Grand Jury.</p> <p>“Filed in open court the 4th day of Doc., 1896. J. V. Dimmick, Clerk.”</p> <p>On the above indictment the plaintiff in error was tried, convicted, and sentenced to five years’ imprisonment in the penitentiary, and to pay a fine of §500. The assignments of error relate to the refusal of the court to sustain a demurrer to the indictment, to the admission of certain evidence against the plaintiff in error, to the rejecting of certain evidence offered by him, and to the giving or refusing of charges.</p>

<p>1. Bankruptcy—Taxes on Exempt Property—Payment by Trustee.</p> <p>Under Bankruptcy Act 1898, § 6-1, requiring the trustee to “pay all taxes legally due and owing by the bankrupt * * * in advance of the payment of dividends to creditors,” it is the duty of the trustee to pay, out of the estate in bis bands, taxes legally assessed and due on the homestead of the bankrupt, and constituting a lien thereon at the time of the adjudication, altbougb sueb homestead has been set apart to the bankrupt as exempt under the act.</p> <p>2. Same—Construction of Statute—Exemption Clause.</p> <p>The provision of the bankruptcy act allowing to bankrupts the exemptions prescribed by the law of the state of their domicile is to be construed liberally to accomplish the purpose of the exemption.</p>

<p>1. Bankruptcy—Seizure of Property—Sufficiency of Affidavits.</p> <p>When application is made, under Bankruptcy Act 1898, § 69, for a warrant to the marshal to seize and hold property of the alleged bankrupt, pending an involuntary petition against him, the affidavits in support of the application must set forth fully and specifically all the essential facts, including the insolvency of the debtor and the facts constituting the alleged act of bankruptcy or neglect of his property by the debtor.</p> <p>2. Same—Property in Hands of Third Person.</p> <p>Bankruptcy Act 1898, ¿ 69, providing that the judge of a court of bankruptcy may, on proof that the respondent in an involuntary petition “has committed an act of bankruptcy, or has neglected * * * his property, * * * issue a warrant to the marshal to seize and hold it,” applies only to property of the alleged bankrupt remaining in his own hands or those of his acknowledged agents. It cannot be so extended as to authorize the summary seizure of property in the possession of a third person, not a party to the proceedings, who claims title thereto under a conveyance from the bankrupt, although such conveyance is alleged to be an illegal preference, and voidable, under the act.</p> <p>3. Same—Pleading—Practice — Joining Prayer for Warrant of Seizure with Petition for Adjudication.</p> <p>The practice of uniting in one petition a prayer for an adjudication in involuntary bankruptcy against the debtor and a prayer for a warrant directing the marshal to seize and hold his property pending the adjudication, condemned. The proceedings for such warrant, and in execution thereof, are separate and distinct from the petition in bankruptcy, and must be prosecuted by separate petition.</p>

In Bankruptcy. On petition by a trustee in bankruptcy for the restoration to him of property of the bankrupt previously sold on foreclosure of chattel mortgages and held by the petitionee.

<p>Bankruptcy—Dissolution of Lien of Attachment—Limitation of Time.</p> <p>Under Bankruptcy Act 1898, § 67c, providing that “a lien created by or obtained in or pursuant to any suit or proceeding at law or in equity, including an attachment upon mesne process * * *, which was begun against a person within tour months before the filing of a petition in bankruptcy, by or against such person, shall be dissolved by the adjudication of such person to be a bankrupt,” the lien of an attachment of the land of a voluntary bankrupt, made by virtue of a special precept issued within four months before the filing of his petition, is not dissolved by the adjudication thereon, when the suit in which such precept issued was begun a year before.</p>

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

<p>In Bankruptcy. On petition of various workmen, laborers, and servants of the bankrupts for preferential payment of their claims.</p>

This was an appeal by Bichards & Co. from a decision of the board of general appraisers in respect to the classification for duty of certain lithographic fashion prints imported by them.

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

<p>Customs Duties—Classification—Paintings on Tiles.</p> <p>Articles composed of several tiles put together in rows, their faces forming a surface on which a picture is sketched by free-hand with brown mineral paint prepared with oil or water, which is then fired, and by vitrification made blue, the whole being then framed, were not dutiable as ‘‘Ules,” under paragraph 94 of the act of 1890 (26 Stat. 570), but were included in the description “paintings, in oils or water colors,” contained in paragraph 465 (Id. 602).</p>

<p>Customs Duties—Valuation — Internal Transportation Charges.</p> <p>Internal transportation charges for getting the goods from the place of manufacture to the place of shipment, even if not dutiable elements of market value, become a part of the entered value when they are included in the entry as a part of the market value because that was thought to be the best way, without indicating that such inclusion was objected to. In such case the charges form an indisputable part of the entered value, which the collector cannot reduce.</p>

The cause comes here upon appeal from the decision of the circuit court, Southern district of New York (84 Fed. 155), affirming decision of the board of general appraisers which reversed decision of the collector of the port of New York touching classification for duty of certain boxes containing oranges and lemons.

<p>Customs Duties—Classification—Coal-Tar Dtes.</p> <p>Where the weight of the evidence is that the product in question is a coal-tar color or dye, a finding by the board of general appraisers that it is dutiable as such, and not as an alizarin color, will be sustained, though the fact that it is used with a mordant may ra ise a doubt whether it is not properly an alizarin.</p>

This was an application by the United States for the review of the decision of the board of general appraisers in respect to the glassification for duty of certain merchandise imported by Stern Bros!

This was an application by the United States for a review of the decision of the board of general appraisers in respect to the classification for duty of certain imported merchandise.

This was an application by Dana & Co., importers, for a review of the decision of the board of general appraisers in respect to the classification for duty of certain merchandise imported by them.

<p>This was an appeal by Hensel and others from the decision of the board of general appraisers in respect to the classification for duty of certain picture frames attached to pictures which were imported by them.</p>

<p>This was an application by Koscherak Bros. for a review of the decision of the board of general appraisers in respect to the classification for duty of certain siphon bottles for mineral waters, imported by them.</p>

This was a petition by the United States for a review of the decision of the hoard of general appraisers sustaining the protest of J. Allston Newhall & Co. as to the assessment of duties by the collector of Boston on certain imported merchandise.

<p>This is an appeal by Bour & Bouillon from the decision of the board of general appraisers affirming the classification for duty of certain imported merchandise.</p>

This is a suit in equity by the Huntington Dry-Pulverizer Company and others against the Alpha Portland Cement Company and others for the infringement of the Huntington patent, No. 277,134, for a crushing mill. On motion for preliminary Injunction.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>These were four suits in equity, brought by Emilie Saxlehner against the Eisner & Mendelson Company, the Siegel-Cooper Company, Rudolph Gies, and Louis Marquet, to enjoin an improper use of trade marks and labels in connection with certain Hungarian mineral waters. From the decree of the circuit court in each case (88 Fed. Cl), complainant appeals, and in the first-named case defendant also appeals.</p> <p>Of these four suits, the first is' one against a wholesale dealer in imported Hungarian mineral waters, which it offers for sale as “Hunyadi Matyas,” and as “Hunyadi Laszlo,” and puts v. with wrappings and labels simulating complainant’s. The other three suits are against retail dealers. The complainant sought to enjoin the use of the name. “Hunyadi,” with o"r without prefix, and also to enjoin the use of any label simulating the well-known red and blue label of “Hunyadi Janos” water, which water complainant owns and controls. The circuit court, at final hearing, upon pleadings and proofs, dismissed the bills as to the name “Hunyadi.” It sustained them as to the label, except that it held that the use by defendants of a certain additional label, known as the “seal label,” sufficiently differentiated the goods offered for sale. The complainant has appealed in all four eases, and the defendant in the first case has appealed from so much of the decree as finds that the complainant is entitled to the exclusive use of the red and blue label, and that defendant should account for sales under that label prior to the introduction of the “seal label.”</p>

This was a libel in personam to recover for injury to a canal boal. There was judgment for libelant, and defendant appeals.

This was a suit in rem by the Missouri Alaska Gold Company, of Paris, Mo., against the schooner Bella (Meyer & Kyle, claimants), for damages for breach of a contract of affreightment.

This was an action by William Burrill and others against William H. Crossman and others for demurrage arising under a charter party.

<p>Appeal from the District Court of the United States for the Northern District of Florida.</p> <p>Henry H. Thornton became a part owner of the steamtug Monarch; the bill of sale describing Thornton as “trustee,” without any statement or indication of the persons for whom he was trustee. In the oath which he was required by law to take for the purpose of effecting the transfer to him, and permitting the use of the tug, Thornton was described merely as “trustee.” The appellant, who was the United States collector of customs for the district of Pensacola, Fla., then enrolled and licensed the tug to carry on her business as a tugboat in Pensacola harbor, and within the United States customs district of Pensacola; the enrollment and license describing Thornton merely as “trustee.” On April 5, 1897, the appellant, in his official capacity, and by order of his official superiors, took possession of the tug’s papers; and, upon an application for their restoration, he demanded that Thornton should show by affidavit the names of the persons for whom he, as trustee, held title in the tug. Thornton complied with this requirement. Subsequently, on April 9, 1897, the appellant further required that Thornton and B. De Rochblave, the other part owner of the tug, should make an affidavit that they would not employ the tug, or allow her to be employed, in the transportation of arms and ammunition or men to the Island of Cuba, in aid of the Cuban insurgents, or in any violation of the navigation or neutrality laws of the United States. This Thornton and De Rochblave refused to do. The tugboat remained tied v. at the wharf until April 20, 1897, when an agreement was entered into between the owners of the tug and the appellant, by which the tug might engage in her usual business in the harbor of Pensacola, provided a United States customs inspector should remain on board, and be paid by the owners of the tug, if the government insisted that Re be so paid. The tug then engaged upon her usual business, and continued to be employed until May 22, 1897, on which day the owners filed their libel, and caused the tug to be seized by the marshal. They prayed that the tug be delivered to them, and that the respondent be condemned to pay the damages alleged to have resulted from his unlawful acts. The respondent pleaded to the jurisdiction, and his plea was overruled. Subsequently, and before the final trial, the tug was given her. papers by the collector of customs. The trial resulted in a decree against the respondent for $2;017.25- damages.</p>

<p>. Cross' Appeals from the District Court of the United States for the '¡¡Eastern District of'Michigan.</p> <p>This is a collision case. The steamer Ohio, bound v. Mud Lake, coal laden, and having in tow the schooner Sheldon, came into collision with the steamer Siberia, bound down Mud Lake, and was so injured as to almost immediately sink in 33 feet of water. The Siberia was the colliding vessel, and sustained but a slight injury. This collision occurred between the Can buoy and the entrance of the river St. Marys into Mud Lake. The Ohio sighted the propellers Siberia and Mather just as she was east cf. and about abreast cf. the Can' buoy. The Siberia and Mather had just come out of the river St. Marys, and were distant from the Ohio about 2y2 miles. At that time the Mather was some 400 feet in the wake of the Siberia, and both were about heading on the Can buoy. When distant about one-half mile from the Ohio, the latter indicated her intention to pass port to port by a passing signal of one blast. This was replied to by both with like signals of one blast. At that time these boats were about abreast, the Mather having overtaken the Siberia, and being in the act of passing- on the latter’s starboard hand. When these passing signals were exchanged the courses of the Siberia and Mather were nearly parallel, the Siberia being headed for the Can buoy and the Mather for a “lump” beyond that buoy, and slightly to the starboard thereof. They were then running very close together, the weight of evidence being that they were from 40 to 75 feet apart. At the same time the courses of the Ohio and Siberia were such as that, if each held its course, they would have passed each other at from 600 to 700 feet apart. The Mather was under a speed of about 10 miles per hour, and the Siberia at a speed of about 9 miles. The Mather, in a short time, gained on the Siberia so that she was about one-half of her length in advance of the latter. Just at this point, and' when the distance diagonally between the Siberia and Ohio was from S00 to 1,000 feet, the Siberia departed from her course, and sheered suddenly to port, and within less than 60 seconds struck the Ohio on her port side, about 50 feet abaft of her stem,' making a great hole, through which she filled, and rapidly sank. The libel filed by the Ohio charged faults against both the Siberia and Mather. The faults of the Siberia, thus charged, were: First, in not keeping a proper and sufficient lookout; second, in swinging to port and towards the propeller Ohio, and striking her, after passing signals of one blast had been exchanged; third, in not porting her wheel, and keeping the vefesel to starboard, while approaching and attempting to pass the Ohio after the exchange of passing signals of one blast with her. The faults of the Mather were averred to be: First, in not keeping a proper and sufficient lookout; second, In attempting to pass the steamship Siberia when the latter was just about to meet and pass the propeller Ohio; third, in not giving the Siberia sufficient room on the latter’s starboard side to allow her to meet and pass the Ohio in safety; fourth, in drawing the Siberia out of her course, and causing her to sheer and strike the Ohio.</p> <p>The answer of the Siberia set v. the defense that the sheer which she took was wholly produced by the wrongful and negligent management of the Mather in overtaking and passing the Siberia so close as to produce suction, which threw the Siberia cf. on a sudden violent sheer; that this sheer and consequent collision were wholly beyond the control of the Siberia, although everything was done to break it, and recover her course, and avoid a collision, which it was in the power of the Siberia to do. No fault in the management of the Ohio was intimated in this answer. The answer of the Mather denies all fault in overtaking or passing the Siberia; denies that the Siberia’s sheer was due to suction caused by the Mather’s overtaking and passing her, but that her sheer was entirely dne to the bad management of those in charge of her. This answer imputed no fault to the Ohio, hut the record shows tha,t during the trial of the cause the proctors of the Mather obtained leave to so amend the answer as to charge fault against the Ohio in not checking, stopping, and reversing so soon as the sheer of the Siberia began. This amendment is not found in the record, though it seems to have been treated as made by Ids honor, the district judge.</p> <p>The court found: (1) That the Siberia was at fault in not reversing so soon as her sheer began, and that it was negligent to experiment with the helm before stopping and backing. (2) That the initial force which started this sheer w'au the suction of the Mather, which was at fault, as an overtaking vessel, in not passing the Siberia at a safe distance. (3) That the Ohio was negligent in not stopping and hacking so soon as the sheer was discovered. The damages were divided equally between the three vessels. All parties have perfected appeals.</p>

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

<p>Railroad Receivership—Intervention by Creditors Claiming Preference —P BEADING.</p> <p>Holders of claims against a railroad in the bands of receivers, who do not come within the terms of a general order requiring the receivers to pay claims for labor and supplies accruing within six months, have no standing to file a motion for payment of their claims in full, and can only be heard upon a petition of intervention setting out the facts on which their claim to preferential payment is based in accordance with the rules of pleading.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>This was a bill filed by the Farmers’ Loan & Trust Company, the appellee, against the American Waterworks Company of Illinois et al., the appellants, to foreclose a mortgage on a waterworks plant situated in the city of Omaha, state of Nebraska. From a final decree directing a foreclosure sale of the mortgaged property, and a distribution of the proceeds of the sale among the mortgage bondholders, an appeal was heretofore taken to this court; and on March 16, 1890, the decree was affirmed, with a slighl modification of some of its provisions. 36 U. S. App. 563, 20 C. C. A. 133, and 73 Fed. 956. After the return of the case to the lower court, a sale was made of the mortgaged property on May 20. 1896, pursuant to the provisions of the modified decree. A report of the sale was made by the master who conducted the same, which report was filed on May 22, 1886, from which it appeared that the property had been sold to the Farmers’ Loan & Trust Company, acting in the capacity of trustee for certain mortgage bondholders who held bonds to the amount of 83,554,000, and that the property had been sold for the sum of 84,009,500, which was 8140,55-1.18 less than the total amount of the mortgage indebtedness. as ascertained and fixed by the provisions of the decree of foreclosure. On Slay 28, 1896, certain exceptions to the master’s report of sale which had been filed were overruled, and the sale was confirmed. By orders duly made and entered of record, additional time was granted to the purchaser at the foreclosure sale to respond to its bid; and, after the time had been on several occasions extended, the master, on July 16, 1898, reported that the purchaser at the foreclosure sale had in all things complied with its bid. On the same day an order was made directing the master to execute a deed for the property sold. Such a deed was forthwith executed, and the property covered thereby was turned over to the purchaser on August 8, 1898, since which time it has been in its possession, or in the possession of its grantees. The mortgagor company, the American Waterworks Company of Illinois, which is the sole appellant, besides filing exceptions to the master’s report of sale, also filed the following motions and exceptions, to wit: First. A motion to vacate the sale, which was filed on June 13. 1896, and was based on the ground that the purchaser had not at that time complied with its bid, as u should have done prior to that date. Second. A motion to vacate the order of July 16, 1896, for the delivery of a deed to the purchaser at the foreclosure sale, which motion was filed July 17, 1896, and was based on the ground that the master’s report that the purchaser had complied with its bid was improvidently made; also, on the ground that the delivery of the deed was ordered before the mortgagor company had had an opportunity to except to the report of the master that the purchaser’s bid had been fully performed. Third. On the same day exceptions were Interposed to the report of the master of July 16, 1898, which exceptions alleged, in substance, that the master’s report was insufficient and uncertain, in that it did not show in what manner or form Ihe purchaser had complied with its bid. The foregoing motions and exceptions were each overruled. Afterwards the master filed a report showing that the mortgaged property had been delivered to the purchaser, and a further report showing the amounts that were due to several persons and corporations who held claims against the mortgaged property. Such reports were heard and confirmed on September 30, 1896. In this state of the record, the mortgagor company prayed an appeal, which was allowed on November 27, 1896.</p>

<p>Appeal from Interlocutor? Decree—Negligence in Prosecution—Dismissal.</p> <p>An appeal from an interlocutory order refusing a preliminary injunction to restrain the expenditure by a city of a fund on which complainants claimed a lien, which appeal is required by the rules of the circuit court of appeals to be made returnable within 10 days, will be dismissed, where it was made returnable in 30 days, and the time was afterwards extended by agreement, and the appellants permitted an entire term of court to pass without bringing the matter to a hearing, during -which time the fund in controversy had been paid out by the defendant, leaving no practical question between the parties to be determined on such appeal.</p>

<p>1. Executors and Administrators—Debts of Estate — Following Assets after Distribution.</p> <p>The assets of an estate are generally a trust fund for the payment of its debts, and may be followed, In equity, for that purpose, in the courts of the United States, into the hands of distributees.</p> <p>2. Same—Judgment against Administrator—Privity of Trustees of Legatees.</p> <p>A judgment in an action revived against executors or administrators c. t. a. after they have settled their accounts, and transferred the property to trustees under the will, is binding on such property in the hands of the trustees, where they have assumed the defense of the action, in the name of the administrators, for the protection and at the expense of the trust estate, with the acquiescence of the legatees.</p> <p>8. Same—Collection of Judgment against Estate—Laches of Creditor.</p> <p>A creditor of an estate, who was sufficiently diligent to obtain a judgment against the administrators on his claim, within the rules of law, cannot be charged with laches in that regard to defeat collection of his judgment.</p>

<p>Intervention—When Allowed.</p> <p>Where a common creditor had joined in an. action against an insolvent, leave to intervene in foreclosure pending against the insolvent to defend against the mortgage will not be granted where the application is not founded on any statement of defense to the mortgages not set v. by the mortgagor, or on any evidence in support of a defense set v. by the mortgagor that could be introduced if the motion was granted.</p>

<p>Interest—Claims in Receiver’s Hands.</p> <p>Where property of an insolvent passes into the hands of a receiver, and, by order of court, payment of claims is stayed, interest is not allowed on such claims pending the stay.</p>

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

This suit was commenced by a hill brought by Mrs. M. M. Fisher, joined and authorized by her husband, John Fisher, of Cuba, and citizens of the kingdom of Spain, against the city of New Orleans; and In said bill it was alleged that she recovered a judgment in this honorable court against the board of school directors, a 'corporation created by the laws of the state of Louisiana, and a citizen thereof, in the sum of more than $10,000,. as more fully appears by the record of…

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This was a suit in equity, by John W. Warner, as receiver of the First National Bank of Watkins, N. Y., against William J. Penoyer and others, directors of said bank, to charge them with liability for losses alleged to have been caused by their negligence. There" was a decree dismissing the bill (82 Fed. 181), from which complainant appeals.</p>

This was an action by Bobert W. Spier against the city of Uvalde, Tex., on interest coupons from bonds issued by the city.

<p>On Motion to Remand.</p>

This is a suit in equity by Nellie L. Cummings and S. Alice Cummings, minors, by their next friend, R. F. Alexander, against P. A. Cummings and others, to establish rights in certain real estate.

<p>On Motion Attacking Sufficiency of Reply.</p>

<p>Stamp Tax—Proprietary Articles—“Uncompounded Medicinal Drugs.”</p> <p>The terms “uncompounded medicinal drugs or chemicals” in section 20 of the act of June 13, 1898 (chapter 448), are used in their pharmaceutical sense, and mean a drug or chemical that is not a mixture of different substances, hut a single entity or substance only, though this substance may he a chemical compound. Patent medicines and other proprietary articles that are mixtures, are taxable under Schedule B; but those that are not made by mixing or compounding in the pharmaceutical sense, but are single distinct substances, whether elementary or strict chemical compounds, are within the exception of section 20' and need not be stamped.</p>

This is an action by Helen Kisseberth against Oliver Prescott and others, as executors, to enforce the liability of their testator as a stockholder in an insolvent Kansas corporation. Heard on demurrer to the declaration.

<p>Fraudulent Conveyance—Purchase by Creditor—Extent of Protection.</p> <p>When a creditor purchases more goods from his failing debtor than are necessary to satisfy his claim, and for the excess pays cash or executes negotiable paper, he places himself in the same position as an ordinary purchaser- having no claim to secure, and becomes a participant in the fraud of his vendee, if he is aware, or has reasonable grounds to believe, that his vendee contemplates a fraud.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>On December 31, 1897, Hugh B. Wilson, Elijah O. Wilson, aid William H. Wilson, the appellees, recovered judgment in the court below in an action at law against Louis N. Brochon, one of the appellants, upon a note executed by Brochon, dated August 27, 1897, payable on demand after date. Upon that judgment a writ of execution was issued out of the court to the marshal of that district, under which writ that officer levied upon and took into his possession a certain stock of goods contained in the store of the execution debtor at West Superior, Wis., and advertised the same for sale. On the 11th day of January, 1898, and within 10 days after such levy, the judgment debtor, Louis N. Brochon, executed to the appellant D. S. Culver, under the provisions of chapter 80 of the Revised Statutes of the State of Wisconsin and the acts amendatory thereof, an assignment of all his property in trust for the benefit of his creditors. Thereupon the assignee and judgment debtor, by petition filed in the court below, sought for an order directing the marshal to turn over to the assignee the property so levied upon under his said writ, and that the writ of execution be set aside, dissolved, and declared void; claiming that, by virtue of a statute of the state of Wisconsin, and by virtue of the assignment made in conformity therewith, the levy of the writ of execution was dissolved. The statute is as follows (Laws Wis. 1897, c. 334; Sanb. & B. Ann. St. Wis. 1898, § 1694a): “Whenever the property of an insolvent debtor is attached or levied upon by virtue of any process in favor of a creditor, or a garnishment is made against such debtor, he may, within ten days thereafter, make an assignment of all his property and estate, not exempt, for the equal benefit of all his creditors, whereupon all such attachments, levies, garnishments or other process shall be dissolved and the property attached or levied upon shall be turned over to such assignee or receiver.” To the petition so filed a demurrer was interposed, and upon the hearing the demurrer was sustained, and the prayer of the petition was denied by the court. Whereupon the petitioners prayed and were allowed an appeal to.this court from that order or decree.</p>

<p>In Bankruptcy. Sur motion to abate writ of replevin.</p>

<p>Bankruptcy—Acts of Bankruptcy—Suffering Attachment.</p> <p>Under Bankruptcy Act 1898, § 3, an insolvent debtor commits an act of bankruptcy by suffering or permitting a creditor to obtain a preference through legal proceedings, if he fails to discharge an attachment levied by such creditor on his stock of goods, and allows a sale to be made thereunder. It is not necessary that the debtor should procure, or actively participate in, the bringing of the attachment suit.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy—Corporation—Principal Place of Business—Admission of Insolvency-Adjudication.</p> <p>Where the defendant corporation shut down its manufacturing works and ceased all business at Warren, R. I., in June, 1898, but continued its-business in New York, where all its executive and banking business had been done, until the petition was filed in November following, held, that New York was its principal place of business during the preceding six months, and that the petition was properly filed in this district; held also that an admission of insolvency and willingness to be adjudicated a bankrupt, as stated in several letters to creditors, signed by the president of the corporation and authorized by a meeting of a majority of the board of directors, was sufficient to uphold a petition and to warrant an adjudication in bankruptcy, although three nominal directors of the corporation were not notified of the meeting; it appearing that they had never taken any part in the meetings of the directors, nor given any attention to its affairs, and were prosecuting suits against the corporation under which they had attached the principal part of its property.</p>

<p>In Bankruptcy. Subpoena delayed.</p>

<p>Bankruptcy — Examination of Bankrupt before Specifications on Discharge.</p> <p>Under subdivision 9 oi section 7 of the bankrupt act, it is proper that an examination of the bankrupt should be had in behalf of creditors, to enable them to prepare specifications opposing his discharge; section 58 requires that all creditors shall have 10 ten days’ notice of such an examination, which should therefore be open to all creditors and ordinarily be had once for all; to avoid extra expense and delay, the notice to creditors to attend in opposition to the discharge, should embrace also a notice of the examination of the bankrupt; such examination should also be at the expense of creditors, as respects any clerical or stenographic aid in taking notes.</p>

<p>This was an application by the United States for a review of a. decision of the board of general appraisers in respect to the classification for duty of certain goods imported by Loeb & Schoonfeld.</p> <p>The merchandise consisted of certain hemstitched lawns, which were-classified for duty by the collector as “partly made cotton wearing apparel,” at 50 per cent, ad valorem; under paragraph 349 of the act of October 1, 1890.. The importers protested that the goods were manufactures of cotton not otherwise provided for, dutiable at 40 per cent, ad valorem, under paragraph, 355 of the same act. No evidence was taken before the board of general appraisers, which found and decided that the merchandise in question was-hemstitched lawns, and sustained the claim of the importers; the board referring to the case In re Mills, 56 Fed. 820. The government appealed, upon, the record as sent v. by the board.</p>

<p>This was an application by Wing Wo Chung for a review of a decision of the board of general appraisers in respect to the classification for duty of certain imported merchandise. The goods in question consisted of dried lychee, invoiced as dried fruits, and were returned by the appraisers as dried fruits, two cents per pound, under paragraph 262 of the act of 1897, as “other edible fruits dried.” The importer protested, claiming that the merchandise was free of duty, under paragraph 559 of that act, as fruits ripe or dried. The board of general appraisers found that they were edible fruits dried, and affirmed the collector’s decision.</p>

<p>This was an appeal by the United States from the decision of the board of general appraisers sustaining the protest of Rosenstein Bros. as to the classification of certain imported fish.</p>

<p>Customs Duties—Classification—Carbons for Electric Lighting.</p> <p>Carbons designed for use only in electric lighting, though 36 inches long, and requiring to be cut or broken into lengths of 12 or 14 inches before actual use, are dutiable under paragraph 98 of the tariff law of 1897, at 90 cents per 100, as “carbons for electric lighting,” and not under paragraph 97, as “carbons not specifically provided for”; nor can the collector estimate the number of shorter carbons into which each will be made, and assess duty on such number at the rate fixed by paragraph 98. 1</p>

<p>1. Customs Duties—Construction of Tariff Acts.</p> <p>Where, by amendment in the senate, an article, which was placed on the free list in the bill passed by the house, was also placed in the dutiable list, and remained in both places as the act was finally passed, held, that the case was one of patent ambiguity arising on the face of the act, which ambiguity must be resolved in favor of the importer, and the goods admitted free.</p> <p>2. Epsom Salts.</p> <p>Sulphate of magnesia, or Epsom salts, which, by the act of 1894, were placed both upon the dutiable and the free list (paragraphs 24 and 542), are to be admitted free, as the ambiguity must be resolved in favor of the importer.</p>

<p>Customs Duties—Additions to Invoice Value—Penal Duties.</p> <p>Section 7 of the customs administrative act of 1890 permits the importer to make such additions, in the entry, to the invoice value, as, in his opinion, may raise the same to the actual market value. Held, that an addition so made, though marked upon the invoice itself, becomes a part of the entered value, and that the collector cannot ignore such addition, and then assess a penal duty which would not otherwise have accrued.</p>

This was a suit by Charles A. Edelhoff and Emil Rinke against William H. Robertson, collector, to recover an alleged excess of duties paid under protest on certain imported merchandise. There was a judgment for plaintiffs, and the defendant brings error. This cause comes here upon writ of error to review a judgment of the circuit court, Southern district of New York, entered June 11, 1897, upon a verdict directed by the court.

<p>1. Customs Duties—Rate and Amount—Galloons.</p> <p>Narrow metal braid, bearing square beads of glass, used for trimming ladies’ garments, and known commercially as “galloon,” is dutiable as sucb under Act March 3, 1883, par. 427, and not as “bead ornaments,” under paragraph 396, nor, under paragraph 216, as “manufactures of metal not otherwise specifically provided for.”</p> <p>3. Same—Laces of Metal.</p> <p>Narrow metal braid, bearing glass beads, used for trimming ladies’ garments, and commercially known as '“metal lace,” is dutiable as such under Act March 3, 18S3, par. 427, and not as “bead ornaments,” under paragraph 396, nor under paragraph 216, “as manufactures of metal not otherwise specifically provided for.”</p> <p>3. Same—Manufactures and Imitations of Jet.</p> <p>Narrow cotton trimming, covered with black glass beads, known in trade as “jet headings or trimmings” or “imitations of jet,” is dutiable as “manufactures and imitations of jet,” under Act March 3, 1883, par. -158, and not as “bead ornaments,” under paragraph 396.</p> <p>4. Same—Akticles oe Manufactubes of Glass and of Metal.</p> <p>Trimming made of glass beads, silvered, and also of tinsel and cotton, commercially known as “steel trimmings” or “steel-bead trimmings,” is dutiable either under paragraph 135 or 143 of Act March 3, 3883, as “articles or manufactures of glass,” or under paragraph 216, as “manufactures of metal, metal chief value,” and not as “bead ornaments,” under paragraph 396, nor, under paragraph 216, as “manufactures of metal not otherwise specifically provided for.”</p>

This was an application by the American Sugar Kefining Company for a review of a decision by the board of general appraisers in respect to the valuation of green or moist sugars imported from Brazil.

<p>Customs Duties—Appeal—Failure op Proof.</p> <p>Where an importer, on the trial of an action at law in the circuit court, to recover the amount of duties paid under protest, fails to introduce any competent evidence of one of the essential facts in relation to the goods alleged in his protest, and on which he based his claim for a different classification, the presumption of correct classification will prevail, and the direction of a verdict for the defendant is proper.</p>

<p>Habeas Corpus. Enlistment in the navy.</p>

<p>1. Patents—Cut-Out for Electric Motors.</p> <p>The Warner patent, No. 565,867, for a cut-out for an electric motor, discloses a combination which was not anticipated and was patentable, in view of the prior state of the art. The inclosing or casing in of the switch which separates it from, and makes it independent cf. the contact arm, is not an essential feature of the combination shown, and the patent is infringed by a device which is essentially the same with the exception of such feature.</p> <p>2. Same — Priority of Invention —Forfeiture and Reinstatement of Application.’</p> <p>The fact that an application is forfeited for inadvertence, and subsequently reinstated, does not affect the question of priority of invention in favor of a patent granted earlier, but on a later application.</p>

<p>Patents—Invention—Spectacle Cases.</p> <p>The Warren patent, No. 589,676, for a spectacle case, held void for lack of invention, and also not infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit in equity by Freidrich Hoborst against the Hamburg-American Backet Company and others for infringement of a patent. From a decree for complainant for nominal damages only (84 Fed. 354), he appeals.</p> <p>This cause comes here upon appeal from a final decree of the circuit court, Southern district of New York, entered after an accounting, which decree sustained the master in awarding nominal damages and no profits. 84 Ned. 354. The suit was brought to restrain infringement of United States letters parent No. 119,765, to complainant, dated October 10, 1871, for improvement in slings for packages. Defendant answered, and by interlocutory decree, October ¿1, 1894, the validity of the patent was sustained, infringement found, and the cause sent to a master to ascertain the damages and profits, if any. On May 15, 1896, the master reported that: “While the defendant has received advantage from the use of the infringing device, there is no evidence from which it is possible to compute, or express in dollars and cents, the profits, gains, and advantages made by said defendant, or which have arisen or accrued to it from such infringement. The complainant is accordingly entitled to recover nothing by way of profits, although entitled to nominal damages, and I fix and assess such damages at the sum of six cents.” Upon this report coming before the circuit court (COXE, J.), the same was neither sustained nor reversed, but was returned to the master, with instructions to “follow the rule” laid down in Tuttle v. Claflin, 22 C. C. A. 138, 76 Fed. 227, and “take such further action in the matter as he may deem proper.”. On April_26, 1897, the master filed a supplemental report, stating that, after full consideration, he saw no reason in any way to modify his former report. .Thereafter, on December 23, 1897, the case came before the circuit court (TOWNSEND, J.) upon exceptions to the master’s report. The court, after examination of the record, expressed the conclusion that it was “clear that the findings in the original report were justified by the evidence, and were in accordance with the general rule of law.” It overruled the exceptions, sustained the report, and decreed accordingly. In the course of its opinion, the circuit court says: “The infringing devices were used in connection with other noninfringing devices according to the exigencies of the business of handling mixed classes of packages, constituting various kinds of cargoes of vessels, under constantly varying conditions. That the defendant derived an advantage from the use of the infringing device is expressly found, but the character of the testimony by which this fact was established was so conflicting and uncertain, and the knowledge of the witnesses was so limited in its scope, that it was manifestly impossible'to obtain therefrom any basis of calculation from which to determine, with any degree of certainty, either the extent of the use of the infringing devices, or the saving effected, or profits derived from such use.”</p>

This was a suit in equity by the Huntington Dry Pulverizer Company and Laura C. Huntington against the Newell Universal Mill Company-and others for alleged infringement of two patents relating to stone and. ore crushers. The cause was heard on motion for preliminary injunction.

This was a suit in equity by John Howard Way against George D. McClarin for infringement of a patent for chest and neck protectors.

This is a suit in equity by William Pelzer against the Horn. & Brannen Manufacturing Company for infringement of a patent. From an order granting a preliminary injunction (87 Fed. 869), defendant appeals.

<p>1. Charter Party—“Current Rate of Exchange on London”—Advances— Sixty Days’ “Usance”—Burden of Proof.</p> <p>Upon a charter party calling for advances by the charterer to the master at the time of loading in New York of one-half the charter hire “at the current rate of exchange on London,” it appearing that there were three different rates of exchange, namely, (a) on cable transfers, (b) on sight drafts, and (c) on 60-day sight drafts, held that by long commercial usage 60 days has been the current “usance” between London and New York, and that this usance is implied in the expression “current rate of exchange on London,” where nothing else is said; no different usage having become established. The burden of proof is upon the party alleging a change in a long-established usage.</p> <p>2. Same—Stevedore's Customary Rates.</p> <p>A provision in a charter party that the “customary rates” should be paid for stevedoring, and the evidence showing that there were no established customary rates for the goods and voyage in question; held, that a reasonable compensation only should be charged.</p> <p>8. Same—Screwing Cotton.</p> <p>Cotton in bales being screwed down in the hold for the purpose only of enabling the charterer to carry a greater quantity of goods, the expense of screwing must be paid for by the charterer, in the absence of any clause in the charter party requiring that exxiense to be borne by the ship.</p>

<p>Shipping—Liability ov Owner eor Repairs—Contract or Agent.</p> <p>The owner of a barge authorized an agent to have repairs made thereon, and the agent contracted with libelant to do the work, agreeing to pay certain wages for the skilled workmen employed. At the end of a week, libelant presented a bill for the work done to that time, in which the contract wages were charged, and which was paid without objection. Held. that after the work was completed the owner could not defeat collection of the remaining amount due under the contract on the ground that the agent was not authorized to pay the wages specified therein.</p>

<p>Insurance—Lloyd’s Association—Each Member Liable eoii His Whole Subscription.</p> <p>Thirty individuals formed an association, and signed by attorney an insurance policy, by which each individual subscriber was expressly declared to be liable for i/so of $1,250, the amount insured, and a loss thereupon arose to about % of the amount insured; and the policy further providing that the associates were liable severally and not .jointly; held, that the insured might recover against each individual subscriber to the full amount of his liability until satisfaction for the loss was obtained, and that the insured was not limited to the subscriber’s mere proportionate share of the partial loss; and that any subscriber thus paying more than his proportion, must look to his associates for indemnity.</p>

<p>Carriers—Seaworthiness—Stanchion Overweighted—Supports Removed— Bai.last Tank Broken—Bad Loading—Harter Act.</p> <p>Xlie steamship K. was chartered to convey a cargo of liquorice from Beyrout and Alexandretta to New York. On sailing, three out of four of the after-stanchions of the after-hatch in the lower hold were down, and the remaining fourth stanchion, during rough weather, broke a hole through the iron cover of the ballast tank on which it rested, causing a leak which damaged the cargo and necessitated repairs in Algiers, during which further damage was done to the cargo; the weight bearing on the single stanchion aft was Increased by the stowage of a spare piece of shafting of three tons weight immediately over the stanchion; held, that the extra heavy weight stowed immediately over the stanchion and the lack of the additional support of the three other stanchions designed to be used, made the ship unfit for the voyage, and was bad loading, within the first section of the Harter act, and not within the third section; and that the ship was liable for the damage.</p>

<p>Personal Injuries—Fellow Servant—Foreman and Workmen—Bags not Tightly slung. ¡</p> <p>The libelant, who was working in the bold of the. K., was hurt by some bags that fell from above while loading from a lighter, because the sling inclosing the bags was not tightly drawn. The stevedore’s foreman, passing as the sling was going aboard, noticed that it was not very tight, and endeavored to make it tighter and then let it pass. There was no defect or imperfection in any of the tools, appliances or machinery on the ship, but the load was not heavy enough to draw the sling tight. The foreman’s aid in tightening was only such as belonged to the workmen themselves to attend to; held that in this act the foreman was a fellow workman only, and his act or negligence did not make the ship liable.1</p>

<p>Towage — Stranding — Unknown Hock — Quick’s Hole — Deviation from Usual Course.</p> <p>It is the duty of a tug to take her tow by the usual channel course; the tug N. H. in passing through Quick’s Hole, having gone considerably to the westward of the usual course and deviated from the sailing directions, and thereby ran her tow upon a rock previously unknown to navigators, held, that the tug was liable.</p>

This was a libel in rem by Louis Johnson against the schooner Kobert G. McQuillen, her tackle, etc., to recover for personal injuries received by libelant while serving as a seaman on such vessel.

<p>Seamen—Wages Wotle Disabled from Injury—Contributory Negligence.</p> <p>The negligence of a seaman, contributing to an injury, which made it necessary to put in to a port and leave him, does not debar him from recovering his full wages, which include all that would have accrued upon the completion of the voyage.1</p>

<p>1. Removal op Causes — Jurisdiction op Federal Court — Attachment in Equity.</p> <p>A federal court of equity is without jurisdiction to entertain a suit under a state statute by a contract creditor to obtain an attachment, and to set aside as in fraud of creditors a conveyance by his debtor; and such a suit is not removable into a circuit court from a state court.1</p> <p>2. Same — Failure to Comply with Statute — Effect op Consent Agrp.ement.</p> <p>A cause cannot be removed from a state court by the entry of a consent agreement therefor in a circuit court of 1he United States, without the filing in the state court of the petition and bond required by the removal act.</p> <p>3. Jurisdiction op Federal Court—Consent op Parties.</p> <p>Jurisdiction to hear and determine a suit of which it is without jurisdiction under the statutes, or which has not been removed from a state court in the statutory manner, cannot be conferred on a federal court by consent of the parties; and its judgment in such a suit is a nullity.</p>

<p>Appeal—Effect as Transfer of Cause—Application: to Substitute Appeal Bond.</p> <p>It is the rule in federal courts that, when all the steps necessary to perfect an appeal have been properly taken, the action is within the control of the appellate court, and a motion for substitution of the appeal bond must be addressed to that court.</p>

This was a suit in equity by the Edison Electric Light Company against the E. G. Bernard Company and others for alleged infringement of a patent. The bill was heretofore dismissed, after a hearing on the merits. 88 Fed. 267. The cause is now heard on a motion by defendants to be allowed full costs.

<p>On motion for leave to intervene in foreclosure suit, and for the allowance of claims as preferred debts under the state statute.</p>

This is a bill filed by the Louisville Trust Company, as trustee under a mortgage or deed of trust, duly recorded, given to it on the 1st day of January, 1889, to secure an issue of 500 bonds of $1,000 each, with interest thereon at 6 per cent, per annum, payable semiannually, of which bonds $375,000 have been certified by the trust company, and sold to various persons, and are outstanding.

This was a suit in equity by the Camp Manufacturing Company against Henry Parker to enforce the specific performance of a contract. From a decree dismissing the bill, plaintiff appeals.

<p>In Equity. Submitted on motion for a preliminary injunction and on demurrer to the bill.</p>

<p>1. Res Judicata—-Decree of Dismissal.</p> <p>An order dismissing a bill for want of prosecution is not a bar to another bill.</p> <p>2. Same—Identity of Subject-Matter—Pleading.</p> <p>A bill for relief in regard to infringement of a patent was' dismissed on demurrer.' In a subsequent suit; a plea averred that the parties, the letters patent relied on, and the acts of infringement complained cf. were the same as in the former suit. iSeld, that it did not show that the matters in suit were res judicata,</p>

<p>1. Judgments—Concltisiveness as to Matter in Issue.</p> <p>A testator, after making bequests to his wife and next of kin, bequeathed, by the ninth clause of his will, a certain sum to colleges therein named, and by the tenth clause devised and bequeathed the residuum of his estate to his executors, iu trust for the benefit of such colleges. Subsequently he executed codicils revoking the tenth clause, and devising and bequeathing his residuary estate, without condition, to his executors, on their promise to apply the residuum in the manner originally provided by the tenth clause, with certain modifications. After the will had been admitted to probate, the widow and next of kin executed releases to the residuary legatees of all their claims against them, and the latter thereupon executed a “deed of gift,” transferring the whole of the residuum to various institutions. Thereafter certain colleges named as legatees in the ninth clause brought an action in the supreme court of New York, making all of the other legatees in the will, the widow, the next of kin. and the, donees under the deed of gift defendants, setting v. in their complaint, among other things, the releases executed by the widow and next</p> <p>of kin, and asking, as relief, that it be adjudged that the residuum was received and held in trust for them and the other legatees named in the ninth clause of the will, to carry out the testator’s intention as expressed in the tenth clause, and that the rights of all the parties be determined. The widow and next of kin answered, alleging that the releases given by them were procured by fraud, and were void, and that the residuary bequest was fraudulent and invalid. A decree was rendered, which was affirmed by the general term of the supreme court and by the court of appeals of New York, adjudging that the fund in controversy equitably vested in the various colleges named as legatees in the ninth clause of the will, and directing its distribution accordingly. Held, that the judgment of the state court was a bar to a subsequent action in the federal court, brought by the next of kin against all the other parties to the action in the state court, to restrain the distribution of the fund according to the decree of the latter court, on the theory that the question of the validity of their releases was not res judicata. 1</p> <p>3. Due Process of Law.</p> <p>A party who has had a trial in a state court in accordance with the settled course of judicial procedure, and has been heard in two successive appeals from the decree therein, cannot claim to have been deprived of property or rights without due process of law.</p>

<p>Appeal—Review—Questions Presented by Record.</p> <p>A case cannot be reviewed, on assignments of error relating to the admission or exclusion of evidence and the instructions given and refused, where the bill of exceptions does not purport to contain all the evidence, and, as is shown by references made thereto in the charge of the court, omits important testimony touching the points of controversy, though it is certified to contain all the material evidence.1</p>

On Demurrer to Declaration. The defendant issued a policy of insurance upon the life of Oarlos G. Rosenplaenter, in favor of his wife, Mary Anna, the above-named plaintiff. It is dated on the 1st day of April, 1889, is for the sum of $10,000, and payable, at the death of the life assured, to the beneficiary.

<p>1. Bankruptcy—State Insolvency Law Suspended.</p> <p>The Illinois act of July 1, 1877, regulating voluntary assignments for the benefit of creditors, and conferring on county courts of the state jurisdiction to administer estates so assigned, and to secure their equal distribution among creditors, according to the provisions of the act, is a general insolvency law; and its operation was suspended from and after July 1, 1898, by the enactment of the national bankruptcy law on that day.</p> <p>3. Same—Following State Decisions.</p> <p>A decision of the supreme court of a state, that a statute of that state regulating the administration and distribution of estates under general assignments for the benefit of creditors is an insolvency law, will be followed by the federal courts of bankruptcy in deciding upon the effect of the enactment of the national bankruptcy law upon the operation of such statute.</p> <p>3. Same—Assignment Under State Law Void.</p> <p>A voluntary general assignment for the benefit of creditors, made under a state insolvency law after the enactment of the national bankruptcy law, is an act of bankruptcy, contrary to the spirit of the bankruptcy act and to public policy as manifested therein, and, as against proceedings in bankruptcy subsequently instituted against the assignor, is void; and proceedings had in a state court upon such assignment, in accordance with the state law, are coram non judice, and do not prevent the court of bankruptcy, upon a proper petition against the assignor, from adjudging him bankrupt, and proceeding to the administration and distribution of his estate.</p> <p>4. Same—Petitioning Creditors—Estoppel.</p> <p>An insolvent debtor having made a general assignment for the benefit of creditors pursuant to a law of the state, one of his creditors was induced to join with the debtor and his assignee in a petition to the state court having jurisdiction of the estate for a decree authorizing the conveyance of land of the debtor to such creditor in part payment of his claim, on the promise that he should receive a bond to indemnify him for any money he might be required to pay back in case the assets proved insufficient to pay other creditors proportionally; but neither the conveyance nor the bond was given. Xhe creditor afterwards joined with others in a petition in involuntary bankruptcy against the debtor. Held, that the latter could not set v. an estoppel against the petitioning creditor based on his participation in the proceedings in the state court.</p> <p>5. Same.</p> <p>Where a debtor makes a general assignment for the benefit of creditors under a state statute providing for the administration and distribution by the state courts of estates so assigned, which statute requires creditors to file their claims withiD three months after notice from the assignee, on pain of being postponed until all proving creditors are paid in full, a creditor who files his claim, but derives no actual benefit from the assignment, the same being unlawful and void as being contrary to the national bankruptcy law, is not thereby estopped to file a petition in involuntary bankruptcy against the debtor.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On exceptions to ruling of referee in the bankruptcy of H. A. & B. T. Camp.</p>

This was an application by the United States for the review of a decision of the board of general appraisers reversing the action of the collector in respect to the classification for duty of certain merchandise imported by Godwin’s Sons.

<p>This was an application by Eschwege & Cohn for a review of a decision of the board of general appraisers in respect to the classification for duty of certain collodion imported in sheets.</p>

This was an application by the United States for a review of a decision of the hoard of general appraisers in respect to the classification for duty of certain articles imported by Rudolph C. Hahn.

<p>1. Customs Duties—Classimcati on.</p> <p>Glass jars containing- preserves, and holding one pint or less, are not “vials,” in the meaning- of paragraph 88 of the act of 1894, but were dutiable as part of the market value of the merchandise contained in them, as provided in section 19 of the customs administrative act of 1890A.1</p> <p>2. Same—Sukb'ioiency op Protest.</p> <p>The collector having classified certain glass jars containing preserves as “vials,” under paragraph 88 of the act of 1894, the importers protested that under said paragraph there was no duty on any filled bottles, or on “bottles exceeding % of a cent per pound. Our bottles are not vials. They are not merchandise, but the envelopes of merchandise, and pay no separate duty.” Held, that this was a sufficient protest.</p>

<p>Customs Duties—Olive Oil—Assessment.</p> <p>Olive oil imported in tins bolding from about a quart to five gallons, the quantity of wfiicb when sold here is reckoned according to the quarts or gallons of the various sizes, without regard to exact measurement, and which is returned by the gauger according to the quantity of the various sizes, though this measure exceeds the true measure by about 1/32, as testified by the gauger, and' about 1/12, as claimed by the importer, is properly assessed on the quantity so returned, in the absence of more exact testimony to furnish a guide for reliquidation.</p>

<p>Customs Duties—Classification—Istrian Marble.</p> <p>Istrian stone or marble, quarried in Istria, some 10 miles from Trieste, was dutiable under paragraph 103 of the act of 1894, under the description “marble of all kinds,” and not under paragraph 105%, as “limestone,” etc.</p>

A writ of habeas corpus was granted by a judge of the circuit court on the petition of William Eaton to inquire into the legality of his detention by the authorities of West Virginia. From a judgment remanding the petitioner to the custody of the state officers, he brings error.

This was a suit in equity by the Thomson-Houston Electric Company against the Athol & Orange Street-Railway Company for alleged infringement of two patents relating to railway motors.

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>This was a suit in equity by the William Sckollhorn Company against the Bridgeport Manufacturing Company and others for alleged infringement of a patent for an improvement in pliers. The circuit court rendered a decree for complainant upon the first claim of the patent involved (84 Fed. 674), and the defendants have appealed.</p>

<p>This is a suit in equity by Gustavus Michaelis and others against Edward Hiles Larkin and others for the alleged infringement of a patent.</p>

This was a suit in equity by the American Skewer Company against Peter D. Helms for alleged infringement of certain patents covering machines for pointing skewers.

In suit No. 1, complainant moves to punish defendant for contempt in disobeying an injunction against infringement of claims 2 and 6 of the Sprague patent (324,892), which was before the circuit court of appeals in this circuit. 88 Fed. 82. In suit No. 2, complainant asks an injunction against the structures complained of in the first suit, under claims 2, 4, and 6 of the same patent, claim 4 never having been adjudicated.

<p>1. Patents—Validity—Invention.</p> <p>Letters patent of the Stinted States No. 492,927, granted March 7, 1893, to Robert B. McEwan, Jessie L. MeKwan and Richard W. McEwan, for an improvement in paper-board, cover a patentable product and are valid.</p> <p>2. Same.</p> <p>The essence of the invention consists in the retention, in the finished product, of the printers’ ink in minute and distributed particles unimpaired by chemical .action, coupled with an avoidance of any impairment of the filler through such action.</p> <p>3. Same—Idea.</p> <p>An idea or discovery unaccompanied by any inventive act or practical application of an inventive nature is not within the scope of the patent laws.</p> <p>4. Same.</p> <p>It is not the purpose of those laws to compel a discontinuance of the lawful manufacture and sale of known products in public use by reason of the mere recognition by some one that they possess merits not theretofore appreciated.</p> <p>5. Same—Anticipation.</p> <p>The question of anticipation or lack of novelty not being free from doubt, the success witli which the complainant’s product has met has weight in turning the scale in favor of the invention.</p> <p>(Syllabus by the Court)</p>

This was a suit in equity by Charles Heap against Henry S. Greene and others for the alleged infringement of letters patent No. 377,151, issued January 31, 1888, to Henry Nicholas Grossclin, Fils, for a machine for napping cloth. The circuit court dismissed the bill (75 Fed. 405), and complainant appeals.

<p>Towage—Injury to Tow—Liability of Tug.</p> <p>Two strong tugs, having eight barges in tow, in passing through Hell Gate,—through which pass daily all vessels to and from New York by way of the East river, and which is safely navigable, by the exercise of the usual skill and care,—permitted the tows to collide with the rocks, first on one side of the channel and then on the other, by which the tows were injured, and one of them sunk. The weather was fair, and the wind light. Eeld, that the' burden rested upon the tugs to. give some exculpatory reason for the occurrence, in default of which they were liable for the damage.</p>

<p>This was a libel in rem by William Duffy against the bark Magdaline to recover for personal injuries received while employed at work on the vessel. .</p>

<p>This is a libel for collision by Horace M. Sargent and others against the steamship Columbian.</p>

<p>In Admiralty. Collision.</p>

<p>This was a libel for collision by the Central Stock-Yard & Transit Company against the steam ferryboat Albany.</p>

<p>1. Collision — Crossing of Steamship and Ferryboat — Custom to Ignore Rules-</p> <p>A custom for ferryboats to yield their privilege in crossing to larger steamers, or of the latter to exact it, anil take the right of way, contrary to the rules of navigation, is not a legal justification to a steamship for. a failure to recognize the right of precedence of a ferryboat, resulting in a collision.</p> <p>2. Same—Evidence Considered.</p> <p>Evidence considered, and held to show that a steamship was out of her course, and in fault for a collision with a ferryboal.</p>

<p>On Plea to Jurisdiction.</p>

<p>On a Rule against a Master to Show Cause.</p>

This is an action by Benjamin F. John against Philip T. Smith, executor, and others, for the recovery of real estate. On demurrer to answer.

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

This appeal is from a decree in favor of the appellees, Ricker, Lee, and Owens, co-partners under the name of Ricker, Lee & Co., against the appellant, the sanitary district of Chicago, setting aside and rescinding a contract for the excavation of a mile (called “Section F”) of the drainage canal. 89 Fed. 251.

The plaintiffs in error instituted their suit in the circuit court of the United States for the Western district of Virginia to recover of the defendants damages occasioned by the death of their intestate in the state of Virginia while in the employ of the defendants. The suit was instituted on the 30th day of August, 1S95.

This is a suit by the United States against Samuel S. Patterson and the sureties' on his bond as an Indian agent. Heard on motion to-strike out part of the answer of the defendants Patterson and McCalmont.

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

<p>1. Railroads—Action for Injury to Perron on Track—Question for Jury.</p> <p>A defense to an action for the death of a person killed by a railroad train in the night, near a station, that such person was a trespasser, to whom the defendant owed no duty, where there was evidence that the place where he was struck was a public crossing, and known to be such by defendant, raises a question of fact, to be submitted to the jury.</p> <p>2. Same—Questions of Negligence.</p> <p>Plaintiff’s intestate went to a station on defendant’s railroad at night for the purpose of taking a train, and, while attempting to cross the tracks to a closet on the opposite side from the station, was struck and killed by ears which were being pushed along the track by an engine. The night was dark, the place was not lighted, and there was no light on the front end of the moving cars, nor any person stationed thereon. The ears made but little noise, and whether the bell on the engine was being-rung was in dispute. There was evidence that the place where deceased was struck was a public crossing, and known to be such by defendant. Whether or not deceased was at the time under the influence of liquor was also in dispute. Held, that the questions of defendant’s-negligence and of the contributory negligence of the deceased, involving- the question of his intoxication, were all properly submitted to the jury.</p>

<p>This was a prosecution by the United States of Thomas B. Youtsey for violations of Rev. St. § 5209, as cashier of the First National Bank of Newport, Ky.</p>

<p>1. Post Offices—Power of Congress to Regulate Use of Mails—Criminal Offenses.</p> <p>The constitutional power of congress to establish post offices a.nd post roads embraces the regulation of the entire postal system, and includes as a necessary incident the right to determine what may be carried in the mails, and what shall not be, and to impose penalties for the violation of its regulations to be enforced, through the courts, such as are contained in Rev. St. § 5480. 2</p> <p>2. Same—Offense against Postal Laws—Indictment.</p> <p>An indictment under Rev. St. § 5480, charging that defendants devised a scheme to defraud by pretending to have established a fund which they designated as “Fund W,” to be used for purposes of speculating, and by 'soliciting the sending and intrusting to them of money for investment in such fund, for the purpose and with the intent of converting such money to their own use, in fraud of those sending it, in pursuance of which scheme defendants placed letters and packets in a post office, or received letters and packets from a post office, sufficiently informs the defendants of the particular scheme relied on as fraudulent, and also enables the court to know that, if consummated as charged, such scheme would result in the perpetration of a fraud.</p> <p>3. Same—General Averments of Indictment—Office of Bill of Particulars.</p> <p>An indictment under Rev. St. § 5480, is not insufficient as being too general, because it avers that defendant placed in the post office letters and packets addressed to persons to the grand jurors unknown, nor because it does not set out the contents of such letters or packets, the remedy of defendants if they desire more specific information being by motion for a bill of particulars.</p> <p>4. Same—Essentials of Offense.</p> <p>It is not necessary that the contents of letters charged to have been placed in a post office in pursuance of a scheme to defraud should show the fraudulent character of the scheme, and hence such letters need not be set out in an indictment.</p> <p>-.5. Same—Specifying Details of Fraud.</p> <p>An indictment charging that defendants placed letters in a post office in pursuance of a scheme to defraud, by inducing others to send them money with intent to convert such money to their own use, need not specify the manner in which such conversion was to be accomplished.</p> <p>6. Same—Scheme to Defraud.</p> <p>A scheme need not be unlawful in itself, or constitute a fraud, either at common law or by statute, to be a “scheme or artifice to defraud,” within Rev. St. § 5480. It is enough if its purpose is to defraud other persons of their money.</p> <p>7. Same—Charging Separate Offenses in Same Indictment.</p> <p>The last clause of Rev. St. § 5480, authorizing the joining of offenses to the number of three in the same indictment, means offenses relating to separate frauds, and is not a limitation of the right to include in one indictment any number of counts charging different acts in pursuance of the same fraudulent scheme.</p>

This is a suit in equity by the Centaur Company against Edward H. Robinson for infringement of complainant’s trade-mark and unfair competition. On motion for preliminary injunction.

Complainant’s bill, filed July 13, 1898, at Paris, Tex., in the clerk’s office of the circuit court of the United States for the Eastern district of Texas, shows substantially as follows: (1) That the defendant is a citizen of the state of Texas, and was trading under the name or style of the Phenix Medicine Concern, also under the names of the Castoria Manufacturing Company and Texas Chemical Company.

Suit in equity by the Centaur Company against the Hughes Bros. Manufacturing Company for unfair trade, in imitating complainant. bottles and labels. An application for a preliminary injunction was denied, and complainant appeals.

<p>Patents—Invention—Folding Paper Box.</p> <p>The Elliott patent, No. 350,727, for a folding paper box, the essential feature of which is the strutting or bracing action of the side pieces in holding the parts in position, shows patentable invention, and was not anticipated.</p>

<p>This was a suit in equity by John G-. Lettelier against William Mann and others for the alleged infringement of a patent.</p>

<p>This was a suit in equity by John G-. Lettelier against William Mann and others for an alleged infringement of a patent.</p>

<p>Patents—Infringement—Improvement in Milk Bottles.</p> <p>The Barnhart patent, No¡ 411,368, for improvements in means for capping and sealing milk bottles, construed, and held not Infringed.</p>

This was a petition by Peter Cahill, Jarvis Masters, and Michael Moran, owners of the steamer George L. Garlick, for limitation of liability as to claims growing out of a collision. Carpenter & Park, James E. Carpenter, and James K. Symmers, foi The George L. Garlick.

<p>This was a suit by William Probst, a minor, etc., against John K. Cowen and Oscar G-. Murry, receivers, etc. The case was heard on a motion to remand to the state court from which it was removed by the defendants.</p>

This was an action at law by William C. Egerton against John H. Starin. The case was removed by defendant from the state court in which it was brought, and is now heard on a motion to remand.

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

<p>Corporations—Income Bonds—Nature of Contract—Equitable Jurisdiction.</p> <p>Income bonds issued by a corporation, the interest on which is payable from the net income of the corporation for the preceding year, no interest to be paid unless such income is earned, but which make the interest the first lien thereon, are not mere promises to pay, for the breach of which an action at law is the only remedy, but necessarily imply an obligation on the part of the corporation to act in good faith in the production, pro- . tectioD, and application of net earnings, which is fiduciary in its nature, and therefore of equitable cognizance; and, where there has been default ..in. the'.payment of interest, holders of such bonds may maintain a suit in equity against the corporation for a disclosure and accounting in regard to . the income earned, on allegations that it has been misappro- .. priated.</p>

<p>1. Corporations—Suits by Stockholders—Necessity of Demand on Corporation.</p> <p>It is not requisite that demand on a corporation or its officers to bring suit should be shown to entitle stockholders to maintain the suit, where it is manifest from the allegations of the bill that such demand would have been unavailing, as where the ground for the relief sought is the alleged misconduct of such officers in the management of the corporation.</p> <p>2. Equity—Pleading—Multifariousness.</p> <p>The joinder of several grounds of complaint and of several prayers for relief in a single bill is not in all cases inadmissible, and the question is one which calls for the exercise of the discretion of the court in each ease where it arises, regard being had to the convenience and substantial rights of the parties. Where the several matters alleged relate to the same general subject of litigation, and may without injustice or inconvenience be disposed of in a single suit, their separation into independent Suits is not required.</p> <p>8. Corporations—Suits by Stockholders—Right to Disclosure by Officers.</p> <p>In suit by stockholders against the corporation and its officers, allegations of fraud against the defendant officers need not be as specific as would be necessary if they were strangers to the complainants, to require that defendants shall answer and make disclosure as to their management of the corporation, which it is alleged they have refused to do on demand, as complainants are entitled to such disclosure as a matter of right, growing out of the relations of the parties. Nor will their right, if it exists, to compel the production of the books and papers of the corporation by mandamus, afford an adequate remedy, which will preclude them from seeking the fuller information and relief afforded in equity.</p>

<p>1. Corporations—Suits by Stockholders.</p> <p>Stockholders cannot maintain a suit in equity against the corporation alone where the matters of complaint are frauds or breaches of duty on the part of its officers, which are in reality wrongs against the defendant corporation.</p> <p>2. Same—Grounds for Appointment of Receiver—Misconduct of Officers.</p> <p>The fact that the officers, and. directors of a corporation have been guilty of participation in a wrongful abstraction of its property does not afford ground for the appointment of a receiver at suit of some of its stockholders, in order that such receiver may institute suit for the recovery of the property; but the rights of the corporation may be asserted and enforced in the suit by the stockholders themselves, by joining all the alleged wrongdoers with the corporation as defendants.</p> <p>3. Same—Joinder of Causes of Action.</p> <p>A bill by stockholders against the corporation alone, to require it to answer and make disclosure as to matters respecting which it is not suable, but is substantially a plaintiff, cannot be rendered maintainable by joining other allegations, on which alone the bill might be maintained.</p>

This is a suit in equity by Godfrey Morse and others, on behalf of themselves and all other stockholders, against the Bay State Gas Company pf Delaware. On demurrer to bill.

<p>This is a suit in equity by Jacob Edwards and others, as bondholders, against the Bay State Gas Company of Delaware. On demurrer to bill.</p>

<p>1. Wills—Validity—Conflict of Laws.</p> <p>The validity of a residuary clause in the will of one domiciled in Pennsylvania, whereby he made a bequest to a city of Virginia for the purpose of establishing schools for the poor, is to be determined by the law of-Pennsylvania, in respect, at least, to all real and personal estate situated in the state;</p> <p>3. Same—Direction to Sell Real Estate—Conversion.</p> <p>A mandatory direction by the testator, requiring his executors to sell all his real estate, wherever situate, at the end of 20 years, works an equitable conversion, under the Pennsylvania law, of all his lands, wherever they may be, into personalty.</p> <p>3. Municipal Corporations—Acquisition of Property by Will.</p> <p>In Pennsylvania, municipal corporations are capable of taking and holding property under a will, and acting as trustee, for purposes of a public nature germane to the objects of the corporation.</p> <p>4 Wills—Charitable Bequests—Incapacity of Trustee.</p> <p>If, for auy reason, a municipal corporation, to which a charitable bequest for educational purposes has been made in trust, is incapable of acting as trustee, the bequest will not be allowed to fail, under the law of Pennsylvania, hut the court will supply a trustee.</p> <p>5. Same—Validity— Uncertainty of Beneficiaries.</p> <p>A bequest to a city directing that the income of the fund shall be expended “in said city by the erection of school houses for the education of the poor,” is not void, under the Pennsylvania law, because of the indeftniteness of beneficiaries.</p> <p>3. Same—Uncertainty ob’ Subject-Matter. ,</p> <p>A will, in one of its items, bequeathed the following sums of money to each of the persons named in Schedule A, “which schedule is hereby made a part of my will, the same as if the name of each person was named herein.” The testator left a separate paper, marked “Schedule A,” which was filed, and admitted to probate, with his will. The paper, however, contained nothing hut a heading, the names and amounts being left blank. The will was in all other respects complete and perfect <Eeld, that this paper was to he entirely disregarded, and did not affect the validity of the will in other respects.</p> <p>7. Same—Virginia Law.</p> <p>Under the Virginia statutes of April 2, 1839, and March 10, 1841, gifts, devises, etc., for educational purposes were excepted from the general rule in that state under which the courts have no authority to sustain charities where the objects are indefinite and uncertain.</p> <p>8. Same—Special Act Conferring Capacity.</p> <p>The special act of the general assembly of Virginia of February 7, 1890, authorizing the city of Winchester to accept the bequests under the will of John Handley, and providing for the administration thereof, gave to the city, if it were otherwise wanting, capacity to take under the will, the bequest being valid in all other respects.</p>

The information in this suit was filed by the attorney general of the state of Illinois on March 1, 1883, to determine the rights respectively of the state of Illinois, of the city of Chicago, and of the Illinois Central Railroad Company in land submerged or reclaimed in front of the water line of the city on Lake Michigan. On September 24, 1888, a final decree was entered in the circuit court in conformity with the opinion of Mr. Justice Harlan, 33 Fed. 730.

These were actions by Charles Linss, as administrator of his two infant daughters, deceased, against the Chesapeake & Ohio Railway-Company, to recover, under the provisions of the Kentucky statute', for the death of his intestates by reason of the alleged negligence or wrongful acts of defendant. On motion for new trial.

<p>1. Justices op tub Peace—Manner op Proving Judgment.</p> <p>Tiie court of a justice of the peace in Maryland is one of limited and inferior jurisdiction, and a judgment of such court can only be established as a cause of action by proving by competent evidence all the facts essential to jurisdiction, and showing Die regularity of the proceedings. A transcript of the record showing the judgment, but not showing such facts, is insufficient.</p> <p>2. Same—Authentication op Transcript—Proof op Signature op Justice.</p> <p>To render a transcript of the records of a justice of the peaee admissible in evidence, the signature of the justice thereto must be authenticated.</p> <p>3. Same—Certificate op Secretary op State op Maryland.</p> <p>The secretary of state of Maryland is not authorized by the statutes of that state to certify to the genuineness of the signature of a justice of the peace.</p>

This was an application by one Belcher for a review of a decision of the board of general appraisers in respect to the classification for duty of certain strips of cold-rolled, untempered strel.

<p>This was an application by the United States for a review of a decision of the board of general appraisers reversing the action of the collector ip respect to the classification for duty of certain articles made of flax lace, imported by Yan Blankensteyn & Hennings.</p>

<p>This is a suit in equity by the Rubber Tire Wheel Company against the Columbia Pneumatic Wagon Wheel Company for infringement of a patent.</p>

This was a suit in equity by William A. Shrei and Hiram Mills against Nelson Morris and others for alleged infringement of a patent. There was a decree dismissing the bill (87 Fed. 217), and complainants appeal.

<p>Navigable Waters—Bridges—Negligence in Management.</p> <p>In attempting to open a drawbridge maintained by the county across a navigable stream, for the passage of a vessel in tow of tugs, the casting which moved the bridge broke. The bridge tender then refused to permit the tugs to swing the bridge, and the vessels were delayed from 3 o’clock in the afternoon until 10 o’clock the following morning, until repairs could be made. It appeared that the tender had complained to the county board that the bridge was difficult to swing, and workmen had been sent to repair it, whose defective work caused the breakage. H'eld, that none of such facts established negligence on the part of the county authorities or their servants which rendered them liable in damages for the delay of the vessels.</p>

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Northern District of Texas. Suit by the Centaur Company against A. F. Reinecke for unfair competition in trade, and to enjoin the use of am alleged infringing label. An application for a preliminary injunction was denied, and plaintiff appeals. Centaur Co. v. Neathery, 91 Fed. 891, followed.</p>

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

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

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

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

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

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

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

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

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

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

<p>In Error to the Circuit Court of the United States for the Indian Territory.</p>

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

<p>In Error to the Circuit Court of the United States for the Indian Territory.</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Cross Appeals from a Decree of the Circuit Court, Southern District of New York. 88 Fed. 71.</p>

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

<p>Errors to the District Court of the United States for the Southern Division of the Northern District of Alabama. These were suits brought against the United States to recover compensation for extra time over eight hours per day served by plaintiffs as letter carriers. There was a judgment for plaintiff in each case, and the United States brings error. The suits were 18 in number, and brought by the following named plaintiffs: George W. Stapleton, Matthew L. Fowlks, Thomas M. Edwards, John T. Dillon, Charles A. Merritt, Charles W. Burney, Walter E. Douglass, Emanuel J. Lowenstein, Charles A. Buff, William C. Cunningham, Charles W. Lowry, Hampton S. Jones, Rufus G. Smith. George S. Martin, James D. Bell, Benjamin J. Puckett, Richard II. English, and Alfred B. Jackson.</p>

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

<p>Sugar Bounty—Construction or Statute—Producer or Sugar.</p>

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

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

<p>Proceeding upon habeas corp'us. The petitioner is of Chinese descent, but in his petition he stated that he was born in the United States, and upon that ground asked the court to adjudge that he is entitled to enter and remain in this country. Upon the hearing the petitioner testified that he was bom at No. 710 Dupont street, in the city of San Francisco, on January 30, 1879, and was taken by his parents to China in 1881, where he remained until a few weeks prior to the'date of filing the petition herein. In his testimony he was corroborated by two other Chinese witnesses, who also testified that upon visits to China in the years 1886 and 1894 they had seen the petitioner there. Neither the petitioner nor his witnesses speak the English language, and their testimony was given through an interpreter.</p>

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

<p>Salvase—Fires—Amount of Compensation.</p>