A judgment or decree of a state court is not a less complete bar to the litigation of the same questions, between the same parties, in another suit in a federal court, because such judgment or decree may have been procured by fraud.Peninsular Iron Co. v. Eells (C. C. A.) 24. A decree in a suit to which all the parties interested in a railroad and its securities are parties, and in which all the facts relating to the organization of the company, the purchase of the road, and the issue of the securities are set up, is res judicata in a suit between the same parties as to any claim of a lien upon the road arising out of the facts so set up and litigated.-Peninsular Iron Co. v. Eells (C. C. A.) 24. A judgment in a suit brought by one of a class for the benefit of all members of the class who come in and contribute to the expenses of the suit, is not binding on one who does not come in or contribute.-Compton v. Jesup (C. C. A.) 263. LANDLORD AND TENANT. In a lease of phosphate lands, upon a royalty, a provision that the lessee shall erect a mining plant of not less than 100 tons capacity is not such a forfeiture-bearing condition that if the lessee erects a plant of less than 100 tons capacity he may be ousted as a tenant holding after the expiration of his right.-Polk County Nat. Bank v. Foote Commercial Phosphate Co. (C. C. A.) 845. A decree in a suit in a state court brought to The landlord's lien given by section 3192 of McClain's Iowa Code expires in six months from a forfeiture of the lease for nonpayment of rent.-Manhattan Trust Co. v. Sioux City & N. Ry. Co. (C. C.) 72. A decree of a probate court in Washington appointing a guardian without a bond, and a decree in a partition suit in which infants are represented only by a guardian so appointed, are both void, and open to collateral attack. Hatch v. Ferguson (C. C. A.) 43. Holders of stock in a corporation, as collateral security, standing in their own names on the company's books, and who participate actively in the management of such corporation, are privies to a judgment against it, and estopped to attack such judgment collaterally.-National Foundry & Pipe Works v. Oconto Water Co. (D. C.) 1006. An action was commenced against a village by service of process on the mayor. The mayor called on a firm of attorneys, asked if they could attend to the case, and was told that they could. Thereafter the village paid no attention to the case until nearly a year after judgment had been entered against it by default. Held, that there was no ground for a bill to set aside the judgment.-Village of Celina v. Eastport Sav. Bank (C. C. A.) 401. Stronger proof of freedom from negligence is required to sustain a bill to set aside a judgment for mistake, than upon a motion for a new trial of the original action.-Village of Celina v. Eastport Sav. Bank (C. C. A.) 401. Where a party seeks the aid of equity to enforce a decree in his favor which has become ineffective, the doctrine of res judicata will not prevent the court from looking into such decree, Lease. LIENS. Maritime liens, see "Maritime Liens." Of landlord, see "Landlord and Tenant." of Shakers, whose property is held in common order a sale of property, at the suit of a subseEven if a court is authorized by local law to quent lienor. free from prior mortgages, it would be inequitable to do so in favor of one of several licnors of equal rank, all equally entitled to enforce their liens.-Compton v. Jesup (C. C. A.) 263. Where a railroad company, owning equities of redemption in the roads of two former companies consolidated to form it, is merged by consolidation into another company by proceedings creditors, such lien is one upon the separate eqwhich fix upon its property a lien in favor of its uities of redemption, and the lienors have the same right of separate redemption from the mortgages as the railroad company. Per Taft, Circuit Judge. Contra, per Lurton, Circuit Judge.-Compton v. Jesup (C. C. A.) 263. A mortgagee who asserts the right to fore- | boat's bad condition. Before maturity of the close his mortgage to the exclusion of a subse- second note, he indorsed it "without recourse" quent lienor cannot object to such lienor's en- to a bona fide purchaser. Held, that the trus forcing his lien, to the exclusion of such mort- tee was not a trustee of the title, but only of gagee, upon other property to which his lien ap- the bill of sale; that the seller could not enplies, and upon which such mortgagee also force a forfeiture except on nonpayment, and claims a similar lien for any possible deficiency. after making compensation for his own default; "er Taft, Circuit Judge. Contra, per Lurton, that by the sale of the note he waived all interCircuit Judge.-Compton v. Jesup (C. C. A.) 263. est in the contract and its conditions; and that the purchaser then became the sole owner, so as to be entitled to abandon the yacht to insurers for a loss subsequently occurring.-Dininny v. Myers (D. C.) 943. Life Insurance. 'ee "Insurance." LIMITATION OF ACTIONS. Rev. St. Mo. 1889, § 3195, prescribes a special limitation for actions on county warrants within section 6791, excepting from the general limitation in section 6774 cases where special limitations are provided.-Knox County v. Morton (C. C. A.) 787. The statute requiring a suit to recover land sold at an administrator's sale to be brought within three years does not apply when there is no person who can bring suit. - Gray v. Quicksilver Min. Co. (C. C.) 677. Under Act May 26, 1824, as extended by Act June 17, 1844, in relation to actions by claimants of land under Spanish and French grants, an action brought in 1894 for land including the Hot Springs in the city of Hot Springs, Ark., by the heirs of the grantee of an alleged Spanish grant dated 1788, is barred.-Muse v. Arlington Hotel Co. (C. C.) 637. Such action is also barred by Act June 11, 1870, known as the "Hot Springs Act."-Muse v. Arlington Hotel Co. (C. C.) 637. Limitations run in favor of a trustee when he disavows the trust, unless the beneficiary was ignorant of the claim.-Dugan v. O'Donnell (C. C.) 983. Local Laws. See "Constitutional Law." Location. Of mine, see "Mines and Mining." MARINE INSURANCE. Where the vessel insured is valued in the policy at a specified amount, and a partial loss is incurred, the insurer pays only such proportion of the actual loss as the sum insured bears to the value of the vessel.-Western Assur. Co. v. Southwestern Transp. Co. (C. C. A.) 923. On the sale of a yacht, part of the price was paid in cash and two notes given for the balance. The bill of sale was delivered to a trustee upon a contract that, if either note was not paid, the cash payment should be forfeited, and the yacht and bill of sale returned. The seller was to deliver the yacht "in perfect order, ready for use," but she was delivered in bad order. The first note was paid, but the former owner refused to make compensation for the v.68F.-66 It seems that a certificate by the inspector of a local board of underwriters that a certain vessel is in good condition, and that cargoes shipped on her will be insured at the usual rates by the companies composing the board, will estop such companies from questioning her seaworthiness, as against one shipping merchandise on her shortly after issuance of the certificate.Western Assur. Co. v. Southern Cotton Oil Co, (C. C. A.) 924. Where a policy contained the words, "Free of particular average unless the vessel be sunk, burned, stranded, or in collision," held, that there was a collision, within the meaning thereof, where the vessel, after being completely loaded and casting off her moorings, returned to her dock because of a difficulty with her engines, and was there struck by a scow which made a slight break in her bulwarks.-London Assurance v. Companhia De Moagens Do Barreiro (C. C. A.) 247. An exception in the words, "Free of partic stranded, or in collision," ceases to operate as ular average unless the vessel be sunk, burned. soon as a collision has occurred, and the insurer is liable for a subsequent loss, whether it resulted from the collision or not.-London Assurance v. Companhia De Moagens Do Barreiro (C. C. A.) 247. A vessel bound from New York to Lisbon with a cargo of wheat was compelled to put into Boston harbor because of a storm, where her cargo was found to be so damaged by water that it could not be restored to a merchantable condition, and it was accordingly sold at that place. In an action against the insurers of the cargo, it was shown that, owing to peculiar conditions in Portugal, damaged wheat was unsalable there. Held, that the sale at Boston must be regarded as made for the beneliable for the difference between the valuation fit of all concerned, and that the insurer was in the policy and the sum realized.-London Assurance v. Companhia De Moagens Do Barreiro (C. C. A.) 247. MARITIME LIENS. Where necessary supplies are furnished to a ship in a foreign port, received by the master, and used in the service of the ship, a maritime lien results unless it is shown that the credit of the owner, not the ship, was relied on; and the burden of showing this is on the ship and her claimants.-The George Dumois (C. C. A.) 926; Gulf City Coal & Wood Co. v. Bru, Id. MASTER AND SERVANT. See, also "Principal and Agent." A complaint in an action for injuries resulting from defective appliance must allege knowledge on the part of the employer and ignorance on that of the employé.-Dixon v. Western Union Tel. Co. (C. C.) 630. whole amount of their lienable claims, whether actually perfected or not.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. Under the Kentucky statute, where the claims of subcontractors exceed the whole price payable to the principal contractor, payments by the principal to the subcontractors are primarily applicable to that part of their claims A telegraph lineman assumes the risks in--Central Trust Co. v. Richmond, N., I. & B. which cannot be secured by their pro rata liens. volved in climbing the poles of other companies, R. Co. (C. C. A.) 90. for necessary purposes, while engaged in string ing wires.-Dixon v. Western Union Tel. Co. (C. C.) 630. The Indiana statute (Act March 4, 1893) providing that corporations shall be liable for injuries to their employés resulting from the act or omission of any person does not impose liability for injuries resulting from the act or omission of the person injured.-Dixon v. Western Union Tel. Co. (C. C.) 630. Master in Chancery. See "Equity." MECHANICS' LIENS. Under the Kentucky statute relative to mechanics' liens on railroads (Barb. & C. Ky. St. 1894, §§ 2492-2495), the lien originates with the beginning of the work, and is incipient or inchoate until the filing of notice.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. Kentucky statute, for work most of which was A lien was filed in one county, under the done in that county, but a small part in another. Held, that a lien should be allowed for two-thirds of the claim.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. Property subject to. Under the lien law of Washington, there is no lien on the structure of a street railway in the streets of a city.-Pacific Rolling Mills Co. v. James Street Const. Co. (C. C. A.) 966. Under the lien law of Washington, one who furnishes material for a street cable railway has no lien on the power house or land on which it stands, none of his material being used in the house or on the land.-Pacific Rolling Mills Co. v. James Street Const. Co. (C. C. A.) 966. For what obtained. There can be no lien for material contracted for and prepared. but never delivered.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. A contractor cannot have a lien for material lost by his negligence, though the title to it had passed to the owner.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. Where a railway company made a contract with a construction company to build its road, and also to pay certain interest on its bonds, for an undivided price, held that, in estimating the contract price by which the liens of subcontractors were limited, such interest should be deducted. Richmond & I. Const. Co. v. Rich-chanics' liens upon railroads, there can be no Under the Kentucky statute relative to memond, N., I. & B. R. Co. (C. C. A.) 105. Hardness of a bargain between a contractor and subcontractor, not amounting to fraud upon other lienors or the principal, is not a reason for applying any different rule from the general one as to application of payments by the contractor to the subcontractor.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. Where a contract price is payable in stock and bonds, to ascertain its amount, for the purpose of limiting the liens of subcontractors, the market value of such stocks and bonds when delivered should be taken.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. In estimating the value of a contract price paid to a contractor in stock and bonds, a value given to the bonds by the use of the stock in connection with them may be taken into account.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. In ascertaining the pro rata shares of subcontractors entitled to liens under the Kentucky statute, the contract price due to the principal contractor should be apportioned among all the subcontractors according to the lien for money expended in acquiring rights of way, paying salaries or expenses of a construction company, paying a commission for guarantying a contract of such company, or for legal expenses.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. Who may claim. Under the Kentucky statute, neither a contract with a principal contractor nor payment to him can affect the rights of subcontractors to liens.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. A subcontractor's lien, under the Kentucky statute, is independent of that of the principal contractor.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. One who sells to another material to be used in constructing a railway, and which such other is under contract to sell to the railway company, has no lien for such material on the railway structure.-Pacific Rolling Mills Co. v. James Street Const. Co. (C. C. A.) 966. Proceedings to perfect. Under the Kentucky statute, each contractor or subcontractor should file his lien within 60 days after the end of the month in which hel completes his own work.-Central Trust Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. Priorities. As between lienors of different priorities, interest should be allowed to the superior liens from the maturity of the claims.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. Under the North Dakota statute (section 5476), a lien, the claim for which is filed more than 90 days from the completion of the work, is superior to a mortgage made and filed within such 90 days.-Wisconsin Trust Co. v. Robinson & Cary Co. (C. C. A.) 778., Under the Kentucky statute relative to mechanics' liens upon railroads (Barb. & C. Ky. St. 1894, §§ 2492-2495), consent by an owner to the making of a subcontract by the principal contractor, and to such subcontractors having a lien, does not give such subcontractor a principal contractor's lien, or a lien superior to mortgages or statutory liens.-Richmond & I. Const. Co. v. Richmond, N., I. & B. R. Co. (C. C. A.) 105. Waiver. MORTGAGES. By corporation, see "Corporations." Mortgagor and purchaser from him are estopped to deny mortgagee's capacity to act.-Farmers' Loan & Trust Co. v. Chicago & N. P. R. Co. (C. C.) 412. The insertion in a mortgage of invalid powers to the trustee does not avoid the mortgage in toto.-Farmers' Loan & Trust Co. v. Chicago & N. P. R. Co. (C. C.) 412. On foreclosure of a railroad mortgage for the benefit of innocent bondholders the state cannot intervene to have the mortgage declared invalid because the trustee is not qualified to act. Farmers' Loan & Trust Co. v. Chicago & N. P. R. Co. (C. C.) 412. have the mortgage declared invalid because not Neither can a judgment creditor intervene to recorded and not authorized by the stockholders. Farmers' Loan & Trust Co. v. Chicago & N. P. R. Co. (C. C.) 412. A mortgage of three steamships already built covered also two others then building, with a covenant for the execution of supplementary mortgages on the latter vessels when completed. Such mortgages were accordingly executed in due time. Held that, even if the latter mortgages were invalid under a statute pass It seems that, while a mechanic's lien may be lost by accepting a contract for a security in consistent with the existence of a lien, such waiver is only conditional upon the performance of the contract. - Central Trust Co. v. Rich-ed in the meantime, the original mortgage opermond, N., I. & B. R. Co. (C. C. A.) 90. The holder of a mechanic's lien, who takes note maturing within the time for foreclosure for the debt, which he discounts, and afterwards pays, does not thereby lose his right to a lien. -Wisconsin Trust Co. v. Robinson & Cary Co. (C. C. A.) 778. MINES AND MINING. In an action brought by one claiming under a placer patent, in support of an adverse claim to a lode claim subsequently located on the same ground, the burden is on the lode claimant to show by clear and convincing proofs that such lode was a "known" lode when the placer patent was applied for.-Montana Cent. Ry. Co. v. Migeon (C. C.) 811. ated as an equitable lien on the two steamers, and, having been properly recorded, constituted notice thereof, so that such lien was superior to subsequently accruing claims.-The Vigilanclaims.-The_Vigilancia (D. C.) 781; The Seguranca, Id.; The Allianca, Id.; The Advance, Id.; Atlantic Trust Co. v. Proceeds of The Vigilancia, Id. The New York statute of 1890, requiring the written assent of two-thirds of the stockholders to the execution of a mortgage by the corporation, is not applicable to a mortgage given in fulfillment of a valid and obligatory contract made upon a full and valuable consideration before the statute was passed.-The Vigilancia (D. C.) 781; The Seguranca, Id.; The Allianca, Id.; The Advance, Id.; Atlantic Trust Co. v. Proceeds of The Vigilancia, Id. The purchaser at a judicial sale in which sevIn order that a lode or vein included within eral mortgages are foreclosed should be regardthe boundaries of a placer patent may be sub-ed, as against the holder of a lien intermediate ject to subsequent location, it must have been known, when the placer patent was applied for, to exist, and to contain minerals of such value as to justify expenditures for their extraction.Montana Cent. Ry. Co. v. Migeon (C. C.) 811. In a collateral attack upon a placer patent, the fact that the claim was located so as to cover part of a prior lode claim, which at the time had not been forfeited, is a matter which cannot be considered.-Montana Cent. Ry. Co. v. Migeon (C. C.) 811. A "known" vein within Rev. St. § 2333, must, it seems, show stronger evidences of valuable deposits than are requisite to a valid location, under Rev. St. § 2320.-Montana Cent. Ry. Co. v. Migeon (C. C.) 811. the mortgages, who is entitled to redeem, as mortgagee in possession under the senior mortgages. Per Taft, Circuit Judge. Contra, per Lurton, Circuit Judge.-Compton v. Jesup (C. C. A.) 263. The fact that the trustees in several mortgages made to secure issues of bonds are the same does not make the mortgagees the same, in the absence of proof that the bondholders are the same persons. Per Taft, Circuit Judge. Contra, per Lurton, Circuit Judge.-Compton v. Jesup (C. C. A.) 263. Where two mortgages on separate properties are held by the same party, the owner of the properties liable for the mortgage debt being also the same, such owner, or one representing him, cannot redeem one mortgage without redeeming the other. Per Lurton. Circuit Judge. -Compton v. Jesup (C. C. A.) 263. Multifariousness. See "Equity." MUNICIPAL CORPORATIONS. NEW TRIAL. Motions for new trials in the federal courts must proceed according to the common law, not to local codes of procedure. - Lowry v. Mt. Adams & Eden Park Incline Plane Ry. Co. (C. C.) 827. Newly-discovered evidence, merely cumulative or_contradictory, is not ground for a new trial. -Lowry v. Mt. Adams & Eden Park Incline Plane Ry. Co. (C. C.) 827. Novelty. The charter of a town, permitting it to issue railroad aid bonds to any amount, is not in conflict with article 9, § 17, of the constitution of South Carolina.-Town of Darlington v. At- See "Patents for Inventions." lantic Trust Co. (C. C. A.) 849. Bonds of a municipal corporation are not rendered invalid because issued by such corporation as a village, when it is properly a city. Cornell University v. Village of Maumee (C. C.) 418. A municipal corporation cannot dispute the validity of an assessment made by its officers because not completed and filed within the statutory time. - Town of Darlington v. Atlantic Trust Co. (C. C. A.) 849. A statute providing for a refund of taxes to a certain class of persons does not have the effect of exempting their property from taxation. Town of Darlington v. Atlantic Trust Co. (C. C. A.) 849. National Banks. See "Banks and Banking." NEGLIGENCE. Of pilot, see "Pilots." Of railroad, see "Railroad Companies." In an action to recover damages for personal injuries sustained by being crushed under an elevator while working in the elevator shaft, held, that there was sufficient evidence in regard to both negligence and contributory negligence to make it proper to submit both questions to the jury.-Holmes v. Junod (C. C. A.) 858. Negligence of a plaintiff, not contributing to an accident, is no defense.-Chicago, St. P. & K. C. Ry. Co. v. Chambers (C. C. A.) 148. Contributory negligence of a fellow servant of a plaintiff is no defense for a defendant who is not the master of either.-Chicago, St. P. & K. C. Ry. Co. v. Chambers (C. C. A.) 148. Where there was evidence that a collision was caused by the disregard of rules by the engineer of defendant's train, and that plaintiff, the engineer of the other, had observed the rules of the road, and acted upon apparently sufficient evidence that the other train was also conforming to such rules, held, that it was not error to refuse to direct a verdict for the defendant.-Chicago, St. P. & K. C. Ry. Co. v. Chambers (C. C. A.) 148. Office and Officer. Corporate officers, see "Corporations." PARTNERSHIP. Evidence examined in an action to dissolve a partnership and for an accounting, and held that advancements of money to enable defendperson advancing the same an interest in the ant to buy and sell phosphate lands, giving a profits, were insufficient to show an existing partnership.-Stevens v. McKibbin (C. C. A.) 406. PATENTS FOR INVENTIONS. Failure to give notice, or to mark an article "Patented," as provided in Rev. St. § 4900, only affects the question of damages, and not the right to an injunction.-Horn v. Bergner (C. C.) 428. To obtain a reissue broadening the original claims, mistake must be shown in procuring the original, and the application must be made within a reasonable time. A delay of nearly three years is unreasonable.-Mast, Foos & Co. v. Iowa Windmill & Pump Co. (C. C.) 213. The negligence or acquiescence of the former owners of a patent has the same effect upon an assignee's rights as his own neglect or acquiescence.-Woodmanse & Hewitt Manuf'g Co. v. Williams (C. C. A.) 489. The general agent of a corporation manufacturing infringing machines, and who has charge of the sale of the same, receiving the commission, is liable for the infringement, though (C. C.) 201. he makes no sales personally.-Cramer v. Fry Application. An applicant is not required, on pain of forfeiting his rights, to do in the public interest all which he may do in his own interest to speed his application.-American Bell Tel. Co. v. United States (C. C. A.) 542. If an applicant is under no obligation to prevent delays due to patent-office officials, the fact that such delay results in prolonging his monopoly will not make his purpose in submitting thereto unlawful.-American Bell Tel. Co. v. United States (C. C. A.) 542. |