relief can be had by either party under rule 18. Upon this motion there is presented with the answer of the clerk what he as clerk certifies under seal to be a correct transcript of the record, together with such portion of the deposition of George M. Klein as is called for by the counsel in the case for the respective parties. If this deposition was presented, and any portion of it read in evidence, either the whole should be put in and sent up, or, if there is any good reason why that should not be done, certainly each party should be permitted to have included in the transcript such portion as he may consider suits his case. A deposition presented and admitted-as it appears from the note of evidence that that of George M. Klein in this case was-cannot be used by one party exclusively for his own purposes, and the other party prohibited 'from using the same. Each party has a right to take exceptions to the evidence offered against him in the court below, and reserve such question for the appellate court. It is not within the discretion of the clerk either to diminish the record by leaving out any evidence presented below on account of its being considered irrelevant, or to increase it with matter not presented. The copy of the transcript presented and certified by the clerk to be a true copy of the record as appears on file in the court Below, except that only such portions of the deposition of George M. Klein mentioned in item 13, page 21, of the transcript is inserted as is called for by the counsel in the case for the respective parties, appears to be a complete transcript of the record, except as to the deposition of George M. Klein, and of that to contain all that the parties on each side desire; and we think it should be accepted by appellants as a sufficient transcript. It is therefore ordered that the motion be denied, with costs; and, it appearing that the time for filing said transcript has expired pending proceedings under this motion, it is further ordered that appellants have 20 days in which to file said transcript.

1 Rule 18 is as follows: "No certiorari for diminution of the record will be hereafter awarded in any case unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari must be made at the first term of the entry of the case; otherwise the same will not be granted, unless upon special cause, shown to the court, accounting satisfactorily for the delay."

NEW YORK, N. H. & H. R. Co. v. COCKCROFT et al.

(Circuit Court, D. Connecticut. February 2, 1892.)

1. FEDERAL COURTS-FOLLOWING STATE LAW.

The decisions of a state court as to the sufficiency of an appeal in a special proceeding are controlling upon the federal courts.

& SAME-DECISION OF RAILWAY COMMISSIONERS-EFFECT OF APPEAL.

A railroad company procured the assent of the Connecticut railway commissioners to the taking of certain lands, and applied to the judge of the superior court to have the damages assessed. The land-owner appealed from the order of the coinmissioners, and at the same time removed the proceedings for assessment to the federal court. In this court he pleaded in abatement the pendency of the appeal. Before the hearing as to the sufficiency of the plea, the appeal was dismissed by the state court for want of jurisdiction. Held that, while the sufficiency of the plea was to be determined as of the date it was filed, yet the decision by the state court was to be taken as showing what the law was at that time.

8. SAME-SUPERSEDEAS.

As by the statute giving the right of appeal from the order of the commissioners (Gen. St. Conn. § 3518, as amended by Acts 1889, p. 129) the same is not taken before the commissioners, or allowed by or filed with them, but is an independent proceeding before the superior judge, the provision made by the statute that the appeal shall operate as a supersedeas does not come into operation until the court takes jurisdiction of the appeal; and a decision by it that it has no jurisdiction thereof shows that there was no supersedeas.

Application to Assess Value of Lands to be taken by a railroad company. Heard on demurrer to the plea in abatement. Demurrer sus

tained.

Lynde Harrison, for plaintiff.

Simeon E. Baldwin, for defendants.

WHEELER, District Judge. By the statutes of the state railroad companies appear to have the right to take additional lands for railroad purposes, and to locate, abandon, or change depots or stations, upon the consent of the railroad commissioners, filed in the town-clerk's office, and payment or tender of damages ascertained on application to a judge of the superior court. And by section 3518 of the General Statutes, as amended by the Public Acts of 1889, p. 129, a person aggrieved by any order of the railroad commissioners upon any proceeding relative to the location, abandonment, or changing of depots or stations may appeal from the same to the superior court by petition in writing, which may hear the appeal, re-examine the question of the propriety and expediency of the order appealed from as upon complaints for equitable relief, and, in case the order is not affirmed, make any other order in the premises which might have been made by the railroad commissioners therein; and such appeal is a supersedeas of the order appealed from until the final action of the court thereon. The plaintiff procured the consent of the railroad commissioners to the taking of the land in question. The defendants appealed to the superior court. The plaintiff made application to a judge of the superior court for ascertainment of the damages. The defendants removed that application to this court, and have pleaded the appeal in abatement. The plaintiff has demurred, and the demurrer has been heard.

When the plea was filed the appeal had not been entered in the superior court. Since then it has been there entered, and been dismissed by the court for want of jurisdiction, and this has been affirmed by the supreme court of errors. Cockcroft's Appeal, 60 Conn. 161, 22 Atl. Rep. 482. Counsel for the defendants insists that the plea stands as of the time when it was filed, and that this court is to determine its sufficiency as if the demurrer had been heard then, before any decision of the courts of the state upon the appeal, and according to the views of this court upon the right of appeal. That the sufficiency of the plea is to be determined as of then is doubtless true. But the laws of the state governing the right of appeal were the same then as now; and the decision of the highest court of the state upon them since shows what, in the judgment of that court, they then were. By section 721 of the Revised Statutes of the United States the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, are to be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. This seems to govern all proceedings in court, except equity and admiralty cases, although they are not strictly according to the common law, and to be applicable here. The decisions of the highest court of a state upon the construction of its laws seem to be the best exposi tion of what the laws really are. Luther v. Borden, 7 How. 1; Randall v. Brigham, 7 Wall. 523; Post v. Supervisors, 105 U. S. 667. That the courts of the United States do not always follow the decisions of the courts of the state upon questions of general law arising in the states is not contrary to this. Venice v. Murdock, 92 U. S. 494; Claiborne Co. v. Brooks, 111 U. S. 400, 4 Sup. Ct. Rep. 489. Especially should the decisions of the courts of the state govern in the construction of statutes relating to their own jurisdiction and procedure. If this court should decide that the superior court had jurisdiction of the appeal, and abate this proceeding for that cause, that court would not have the appeal before it, nor be bound to proceed with the appeal if there. Such diversity would appear to be contrary to the system of the jurisprudence of the United States, and tend to confusion and obstruction, rather than to the promotion of justice. The decisions of the state courts seem to be conclusive against the right of appeal in this case from the railroad commissioners to the superior court.

The counsel for the defendants further insists that the fact of the appeal operated by force of the statute as a supersedeas of all further proceedings until final action of the court thereon; and that this proceeding for the ascertainment of the damages could not be had before then. The nature of the proceeding for an appeal is important here. No appeal is taken before, filed with, or allowed by, the railroad commissioners, and no removal of the proceedings before them or of their record is had. The application to the superior court is an independent proceeding, which operates upon the parties, and not upon the railroad commissioners nor their judgment until the superior court acts. That court has not acted upon the appeal at all; but has merely held that there was none. If it had

taken jurisdiction, an appeal would have been pending; and, if sustained, its order, and not that of the railroad commissioners, would have been the foundation for further proceedings, if any were provided for. But, as it took no jurisdiction whatever, the proceedings of the railroad commissioners were left in force as they had been all the while. The statute does not provide that an attempted appeal, nor that the service of a citation on a petition for an appeal, shall operate as a supersedeas, but that such appeal-that is, an appeal in such a case-shall operate as a supersedeas. This is settled to be not such a case; therefore this was not such an appeal as the statute gave that effect to. Demurrer sustained, and plea adjudged insufficient.

BRUSH-SWAN ELECTRIC LIGHT CO. OF NEW ENGLAND v. BRUSH ELEC

TRIC CO.

(Circuit Court, S. D. New York, January 18, 1892.)

PRINCIPAL AND AGENT-RIGHTS INTER SE-SALE OF PATENTED MACHINES.

A corporation owning certain patents, and manufacturing machines thereunder, constituted another company its exclusive agent for the sale thereof in certain Eastern States, the agent to receive as compensation a discount of 20 per cent. on the price, and, if the principal sold in this territory, 20 per cent. also upon all its sales. Subsequently the principal, for a cash consideration of $65,000, in addition to certain annual royalties, sold to a third company an exclusive license to sell machines under one group of patents in the whole United States. Held, that the agent was not entitled to recover of its principal any part of the $65,000, or 20 per cent. commission upon sales made by the licensee, until it was shown that the latter company had actually sold machines within the agent's territory.

In Equity. Suit by the Brush-Swan Electric Light Company of New England against the Brush Electric Company for specific performance of a contract, whereby the latter company constituted the former its exclusive agent for the sale of certain patented machines in certain eastern states, and agreed to furnish the same to it at a stated discount; also for an injunction to restrain the defendant from selling machines in complainant's territory, and for an accounting as to sales already made. A decision. in favor of complainant was rendered January 17, 1890, (41 Fed. Rep. 163.) A rehearing was denied, (43 Fed. Rep. 225,) and an interlocutory decree, referring the cause to a master to take an account, was entered July 18, 1890. The hearing is now upon exceptions to the master's report. Overruled.

The other facts fully appear in the following statement:

The decree directed that it be referred to John A. Shields, Esq., as a special master of this court

"To take and state an account of all such machinery, apparatus and appurtenances as shall have been sold or delivered by the said defendant within the aforesaid territory as limited by the foregoing territorial exceptions, from and after the 10th day of June, 1885, and of the prices at which each of such sales shall have been made, and of all sales and licenses of right to use any or all

of the patents and inventions belonging to said defendant, to the benefit of which said complainant is entitled under and by virtue of the agreements hereinbefore mentioned within the said territory,, which may have been made by the said defendant, and of all moneys which shall have been received therefrom; and also to take and state an account of all the damages which shall have been sustained by the complainant by reason thereof, and by reason of the refusal, neglect or delay of the defendant to fill and execute orders received by it from the said complainant, and by reason of any and all other matters and things in the complaint herein set forth, and to report thereon to the court after deducting any sum which the said master may find to be due from the complainant to the defendant."

On the 24th of November, 1891, the master filed his report in which he found due from the defendant to the complainant the sum of $29,242.11, $10,725.49 of which has been paid pursuant to the terms of the decree. The above amount was arrived at by stipulation between the parties. Two claims for damages were, however, reserved for decision. The master's conclusion as to the second claim is in the following words: "Second. A claim for commissions on the basis of 20 per cent. upon a certain contract made by the defendant with the Consolidated Electric Storage Company, June 2, 1890. Referring to the terms of the decree which limits and defines my duties and powers, it will be found that I am confined to an account of such machinery, apparatus and appurtenances as shall have been sold or delivered,' and all sales and licenses or rights to use any or all of the patents and inventions,' necessarily within the territory included in the contracts in suit. Upon the question of damages, the transaction furnishing the basis thereof must be one conflicting with complainant's rights within this territory. It does not appear that anything has thus far been done within this territory under the agreement with the Consolidated Electric Storage Company, upon which the commission of 20 per cent. would apply, and until something of this kind is done, it is difficult to see how the complainant can be damaged under its contract. It is clear that the complainant is not entitled to 20 per cent. upon the entire contract with said storage company, because that contract covers territory in which complainant has no right whatever. Until something shall be done under the license or agreement of the storage company, within complainant's territory, the complainant will suffer no damage by reason thereof. I am therefore compelled to find and report against complainant upon this second reserved claim."

To this finding of the master the complainant duly excepted. No other exception was taken by either party.

Joseph H. Choate and William G. Wilson, for complainant.
Gilbert H. Crawford, for defendant.

COXE, District Judge. By the terms of the agreements between the parties the complainant became the exclusive agent of the defendant, for the sale of the electrical machinery and apparatus manufactured and controlled by the defendant, within certain limited territory. The compensation which the complainant was to receive for its services as agent was a discount of, at least, 20 per cent. upon the selling price of the machinery and apparatus sold by it. If the defendant sold in this territory it was to pay a commission, at the same rate, to the complainant. It is plain, therefore, that if the contracts had been faithfully performed the complainant could have received nothing, except