of appeals. This court will follow the construction already placed upon the eighth claim of the Sutton patent, although that construction was not by a unanimous court. The machines asserted to be infringements are the identical machines already held to be within the eighth claim, and the decree here should be in accordance with the decision of the appellate tribunal. Complainants may take the usual decree, with costs.

CORTELYOU et al. v. CARTER'S INK CO. (Circuit Court, S. D. New York. August 23, 1902.) Sam'l O. Edmonds, for the motion. Henry W. Taft, opposed.

LACOMBE, Circuit Judge. Complainant may take a restraining order in the general form of the injunction in the Lowe Case, 1. e. closely restricted to sales advertisements calculated to induce persons who bought Neostyle machines under contract as to the kind of ink to be used to violate their contract. The papers seem to indicate that the statements of defendant's selling agent were not suggested by defendant or its officers; but it is, of course, responsible for the statements, as well as the sale, to the extent, at least, that complainant may protect itself by injunction against the acts of some further over-zealous agent. Order to be settled on notice.

FOWLER et al. v. JARVIS-CONKLIN MORTGAGE TRUST CO. (Circuit Court, S. D. New York. August 23, 1902.) Petition of Ezra Lippincott. Steele, De Friese & Frothingham, for petitioner.

LACOMBE, Circuit Judge. It is not perceived that the additional affidavits materially change the situation from what it was in April, 1900, when a like application was denied. It is sought to obtain an order turning over the entire balance of the fund, which was kept to meet belated claims of similar character, to the petitioner. There is no assurance but what, the next month after that is done, some one else will appear to claim a part of it, with better excuses for delay. The motion is denied, on the ground of laches, with leave to renew at the expiration of 10 years from the final decree. If no other claims shall have been presented before that time entitled to share the proceeds with Mr. Lippincott, it may be quite appropriate to turn over the balance then remaining, after expenses of storage and commissions, to him.

LOAIZA et al. v. UNITED STATES. (Circuit Court, S. D. New York. August 23, 1902.) Frank C. Avery, for importers. Henry L. Burnett, for the United States.

LACOMBE, Circuit Judge. The decision of the board of general appraisers is affirmed. The record discloses no evidence to support the allegations of the petition on which appellants rely.

MOVIUS et al. v. UNITED STATES. (Circuit Court, S. D. New York. November 6, 1902.) No. 67. Appeal by the Importers from a Decision of the Board of General Appraisers Which Affirmed the Classification by the Collector of the Importation in Question. Hartley & Coleman, for importers. Charles D. Baker, Asst. U. S. Atty.

TOWNSEND, District Judge. The merchandise in question was assessed for duty as a coal tar color or dye, under paragraph 82, Tariff Act 1883, and was claimed to be free as an acid used for medicinal purposes, under paragraph 394 of said act. This question has already been decided by the circuit court of appeals in Matheson & Co. v. U. S., 18 C. C. A. 143, 71 Fed. 394; and, following the ruling there laid down, the decision of the board of appraisers is reversed.

SELCHOW et al. v. CHAFFEE & SELCHOW MFG. CO. (Circuit Court, S. D. New York. September 22, 1902.) Motion for preliminary injunction. Arthur v. Briesen, for the motion. A. Bell Malcomson, opposed.

LACOMBE, Circuit Judge. Most of the questions presented should be reserved till final hearing. Defendant, however, until then, should refrain from marking games of "Parchesi" with, and from selling or offering to sell or advertising said games under, the name "Selchow," either singly or in combination with other words. The operation of this injunction is suspended for five days after entry of order to enable defendant to change the labels on goods already manufactured.

CO.

WESTINGHOUSE AIR BRAKE CO. v. CHRISTENSEN ENGINEERING (Circuit Court, S. D. New York. October 18, 1902.) For former opinions, see 103 Fed. 491, and 113 Fed. 594. Wm. A. Jenner, for the motion. Fred'k H. Betts, opposed.

LACOMBE, Circuit Judge. Defendant may have 10 days from to-day in which to examine not more than two witnesses to testify that the two valves made by complainants and subjected to experiment are not made in accordance with the Holleman patent. In all other respects the motion is denied. The taking of this surrebuttal testimony shall not operate to change the position of the cause on the equity calendar.

WESTON ELECTRICAL INSTRUMENT CO. v. STEVENS et al. Circuit Court, S. D. New York. October 3, 1902.) In Equity. Suit for fringement of patents. On motion for leave to take testimony in surrebuttal. Guthrie, Cravath & Henderson, for the motion. Kenyon & Kenyon, opposed. LACOMBE, Circuit Judge. Defendants may call not more than two witnesses to testify that an instrument constructed in accordance with drawing of December, 1888, would in their opinion be inoperative, briefly stating their reasons for entertaining such opinion, or not more than two witnesses to testify that they have tried to operate an instrument made in conformity to such drawing and have failed to succeed. (2) The motion to take surrebuttal with regard to publication in the London Electrician September 2 and 16, 1882, is denied. (3) As to each of the new publications put in in rebuttal, and referred to in paragraph 3 of the motion, defendants may call one witness to testify what he understands such publication to disclose. (4) Professor Anthony's statement in cross-question 223 is stricken out. The motion for surrebuttal as to split-spool denied. Ten days' time allowed to take this surrebuttal.

August

WHEATON v. DAILY TEL. CO. (Circuit Court, S. D. New York. 25, 1902.) Motion to Compel a Bank of Deposit to Turn Over Balance to Receiver. Gould & Wilkie, for the motion. Kneeland Moore, opposed.

LACOMBE, Circuit Judge. The bank should pay over to the receiver the balance of $1,982.86, with interest from the date when receiver demanded it. That date is not disclosed by the papers. It may be shown by affidavit on settlement of order. This is without prejudice to whatever claim to a preference the bank may be advised to urge touching so much as it claims as creditor.

END OF CASES IN VOL. 118.

INDEX.

ABATEMENT AND REVIVAL.

Judgment as bar to another action, see "Judg-
ment," § 1.

ACCESSION.

Assignees, see "Assignments," § 1.
Foreign corporation, see "Corporations," § 5.
Mortgagee, see "Chattel Mortgages," § 2.
Stockholders, see "Corporations," § 2.
Trustees in bankruptcy, see "Bankruptcy," § 6.

Particular causes or grounds of action.

Annexation of personal to real property, see See "Collision," § 6; "Customs Duties," § 3;
"Fixtures."

ACCORD AND SATISFACTION.

See "Compromise and Settlement."

ACCOUNT.

Limitation of action on, see "Limitation of Ac-
tiors," § 1.

1. Right of action and defenses.
Facts held not to show a trust relation au-

thorizing suit for accounting.-McKay v. Hud-
son (C. C.) 919.

2. Proceedings and relief.

"Death," § 1; "False Imprisonment,' § 1;
"Insurance," § 4; "Libel and Slander," § 2;
"Trover and Conversion," § 1.

Conversion of mortgaged property, see "Chat-
tel Mortgages," § 2.

Cutting timber from public lands, see "Public
Lands," § 1.

Damage to cargo, see "Shipping," § 3.
Enforcement of stockholders' liability for corpo-
rate debts, see "Corporations," § 2.
Infringement of patent, see "Patents," § 5.
Personal injuries, see "Master and Servant,"
$ 1.

Price of goods, see "Sales," § 1.

Unfair competition in trade, see "Trade-Marks
and Trade-Names," § 3.

Unlawful detainer, see "Landlord and Tenant,"
§ 3.
Particular forms of action.

Certain persons held not custodians of a joint
fund. so that they may be made defendants as
such in a suit against anotaer.-McKay v. Hud- See "Trover and Conversion."
son (C. C.) 919.

ACCRETION.

See "Navigable Waters," § 1.

ACCRUAL.

Particular forms of special relief.

See "Account"; "Creditors' Suit"; "Injunction",
"Quieting Title"; "Specific Performance."

Determination of adverse claims to real proper-
ty, see "Quieting Title."

Establishment of boundaries, see "Boundaries,”
§ 2.

Of right of action, see "Limitation of Actions," Foreclosure of mortgage, see "Mortgages," § 3;
§ 1.

"Railroads," § 1.

Setting aside fraudulent conveyance, see "Fraud-
ulent Conveyances," § 1.

Particular proceedings in actions.

See "Depositions"; "Dismissal and Nonsuit";
"Evidence": "Judgment"; "Limitation of Ac-
tions"; "Pleading"; "Removal of Causes";
"Trial."

Particular remedies in or incident to actions.

See "Arrest," § 1; "Garnishment"; "Injune-

tion"; "Receivers."

Stay of proceedings, see "Appeal and Error,"
§ 2.

Proceedings in exercise of special jurisdictions.
Criminal prosecutions, see "Criminal Law."
Suits in admiralty, see "Admiralty"; "Colli-
sion," § 6; "Salvage," § 2.
Suits in equity, see "Equity."

(1025)

§ 1. Joinder, splitting, consolidation, |§ 3. Costs.
and severance.

An action by the United States against the
heirs of a deceased public officer to recover a
sum alleged to have been overpaid him on his
salary account, on the ground that they receiv-
ed distributive shares of his estate, cannot be
joined with one against the sureties on his of-
ficial bond to charge them with liability thereon
for the same sum.-United States v. Boyd (C.
C.) 89.

A complaint joining a cause of action against
one defendant with two other causes of action,
one against the other defendant and the other
against both defendants, held demurrable un-
der Cutting's Comp. Ann. Laws, § 3159, for
misjoinder of causes of action. Spencer v.
Candelaria Waterworks & Milling Co. (C. C.)
921.

ADEQUATE REMEDY AT LAW.

Effect on jurisdiction of equity, see "Equity,"
§ 1.

ADJOINING LANDOWNERS.

See "Boundaries."

ADJUDICATION.

Where a shipper tendered into court the
amount of freight earned by part performance
of a contract, less an advancement, and dam-
ages for nonperformance of the balance, the
shipper was entitled to costs from the time of
the tender, and to a dismissal of the libel.-
Edward Hines Lumber Co. v. Chamberlain (C.
C. A.) 716.

Where a court of admiralty has jurisdiction
of the subject-matter and the parties in a suit
in rem, the fact that it dismisses the libel on
the ground that no maritime lien arose under
the facts shown does not affect its power to
award costs against the libelant.-The Fran-
cesco (D. C.) 112; The F. W. Munu, Id.

ADVERSE CLAIM.

To real property, see "Quieting Title."

ADVERSE POSSESSION.

See "Limitation of Actions."

§ 1. Nature and requisites.

The pasturing of sheep on the Stanislaus for-
est reservation having been forbidden by rule of
the secretary of the interior, under authority of
Act June 4, 1897 (30 Stat. 35 [U. S. Comp. St.
1901, p. 1540]), user cannot give a right of
(C. C.) 199.

Operation and effect of former adjudication, see pasturage there.-United States v. Dastervignes

"Judgment," §§ 1, 2.

Of courts in general, see "Courts," § 1.

ADMINISTRATION.

Of estate of bankrupt, see "Bankruptcy," § 5.
Of estate of decedent, see "Executors and Ad-
ministrators."

Of trust property, see "Trusts," § 2.

ADMIRALTY.

See "Collision"; "Maritime Liens"; "Salvage";
"Seamen"; "Shipping."

§ 1. Jurisdiction.

An American court of admiralty will enter-
tain an action by a seaman against a foreign

Inasmuch as laches cannot be invoked against
the government, user of government lands for
pasturage gives no title.-United States v. Das-
tervignes (C. C.) 199.

AFFIDAVITS.

See "Depositions."

AFFREIGHTMENT.

Contracts, see "Shipping," § 3.

AGENCY.

ship to recover damages for the failure of the See "Principal and Agent."
master to furnish him proper care and treat-
ment after an injury in the service, where he
would otherwise be without an effective rem-
edy. The Troop (D. C.) 769.

§ 2. Appeal.

A decree in admiralty will not be reversed on
appeal, because of a misjoinder of causes of ac-
tion in the libel, where as to one it was dis-
missed by the court, whether on exceptions or
on final hearing, and a decree on the merits en-
tered upon the other only.-The S. L. Watson
(C. C. A.) 945; The Thomas P. Sheldon, Id.

Objection to awards made for salvage serv-
ices to the officers and crew of the salving ves-
sel, on the ground that they were not made
parties to the libels, cannot be raised for the
first time in the appellate court.-The Flottbek
(C. C. A.) 954.

AGREEMENT.