that the only reason assigned by defendant's manager, except that the matter had gotten beyond him, was that he was very sorry he had to take this course, but that the men would not work with plaintiff. In these circumstances, the questions of plaintiff's competency and efficiency were questions to be submitted to the jury, and they were properly submitted by the judge in the charge, a portion of which is as follows:

"The question is whether the plaintiff fulfilled his duties efficiently, and, if he did not, he is not entitled to recover at all. If he did, then he was improperly discharged, and he is entitled to recover the damages which have accrued."

A further exception discussed in the brief, but not pressed on the argument, relates to the admission in rebuttal of the pay roll made up by plaintiff during the time of his employment. Counsel for defendant stated that he did not object to the testimony of the witness that he had made out the pay roll, but merely objected to the admission of the pay roll itself, on the ground that it might convey an erroneous idea to the jury. It was admitted merely to show that it was a pay roll, and that plaintiff himself made it. This evidence was proper on rebuttal as tending to disprove the testimony of defendant's witnesses that plaintiff had done nothing in the line of his employment.

The judgment is affirmed, with costs.

CAVIN v. SOUTHERN PAC. CO.

(Circuit Court of Appeals, Ninth Circuit. February 6, 1905.)

No. 1,113.

CARRIERS-ACTION BY RAILWAY MAIL CLERK FOR PERSONAL INJURY-INSTRUCTIONS.

In an action by a railway mail clerk against a railroad company to recover for injuries received through the alleged negligence of defendant in operating its road, where the court correctly instructed the jury that defendant owed to plaintiff the same degree of care as to a passenger for hire, which was the highest degree of care, skill, and foresight consistent with the carrying on of its business, further instructions that the care required was such only as "a prudent and careful person would generally exercise to prevent injury in the management of business attended by danger," and such "as skillful men engaged in that kind of business might fairly be expected to use under like circumstances," were inconsistent with the first, and erroneous, as not requiring the high degree of care exacted by the law from carriers of passengers.

In Error to the Circuit Court of the United States for the Northern District of California.

J. T. Houx and Houx & Barrett, for plaintiff in error.

P. F. Dunne, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. The plaintiff in error was plaintiff in the court below in an action for damages for injuries received by him

when the train on which he was employed as a mail clerk was derailed at a washout on the defendant company's track near Mills City, in the state of Nevada, about 5:25 a. m. of the 17th day of February, 1901. The complaint counted on the alleged negligence of the company in the construction of the track at the place of the derailment, and in the care and inspection thereof. The answer of the company put in issue the charge of negligence on its part, and averred that the alleged injuries were caused without fault on its part. The court below correctly instructed the jury that:

“The defendant owed the same degree of care to the plaintiff, as a mail clerk riding in the mail car in charge of the United States mail, as it did to passengers for hire upon said train; and that care is prescribed by law to be the highest degree of care, skill, and foresight consistent with the carrying on of its business."

It is manifest that if, as we think, and as the court below first told the jury, the law exacted of the defendant company the highest degree of care, skill, and foresight consistent with the carrying on of its business, the court was in error in subsequently instructing the jury as it did, in effect, that the degree of care required of the carrier was such only as "a prudent and careful person would generally exercise to prevent injury in the management of a business attended by danger," or that degree of care and prudence "which a very cautious and prudent person would have used under the known or apparent circumstances of the case," or such "as skillful men engaged in that kind of business might fairly be expected to use under like circumstances." These latter instructions were not only inconsistent with that first given, but do not measure up to the standard of care exacted by the law of carriers of passengers. See Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115; Railroad Company v. Pollard, 22 Wall. 341, 22 L. Ed. 341; Gleeson v. Virginia Midland Railroad Co., 140 U. S. 435, 443, 11 Sup. Ct. 859, 35 L. Ed. 458. The judgment is reversed, and the cause remanded to the court below for a new trial.

CARDWELL v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. February 6, 1905.)

No. 1,092.

PUBLIC LANDS UNLAWFUL INCLOSURE-SUIT FOR ABATEMENT OF FENCES. Act Feb. 25, 1885, c. 149, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524], making it unlawful to inclose public lands without claim of right thereto under the land laws, applies to the inclosure and appropriation to private use of such lands by fences built on other lands, and the government may maintain a suit thereunder to abate such fences.

Appeal from the District Court of the United States for the District of Montana.

Massena Bullard, for appellant.

Carl Rasch, U. S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

136 F.-38

ROSS, Circuit Judge. On the 25th day of February, 1885, Congress passed an act entitled "An act to prevent unlawful occupancy of the public lands." Chapter 149, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524]. By its bill in the present case the government charged the appellant (defendant below) with the commission of certain acts forbidden by that statute, specifically describing the public lands which it alleged the defendant had unlawfully inclosed and over which it alleged he exercised exclusive and unlawful control. Issue having been taken by the defendant, proof was taken, and upon the evidence the court below found in favor of the government and against the defendant, and entered a decree accordingly.

The construction and proper application of the statute of 1885 was before the Supreme Court in the case of Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260, and was by that tribunal carefully considered; the court saying, among other things:

"It needs no argument to show that the building of fences upon public lands with intent to inclose them for private use would be a mere trespass, and that such fences might be abated by the officers of the government or by the ordinary processes of courts of justice. To this extent no legislation was necessary to vindicate the rights of the government as a landed proprietor. But the evil of permitting persons who owned or controlled the alternate sections to inclose the entire tract, and thus to exclude or frighten off intending settlers, finally became so great that Congress passed the act of February 25, 1885, forbidding all inclosures of public lands, and authorizing the abatement of the fences. If the act be construed as applying only to fences actually erected upon public lands, it was manifestly unnecessary, since the government as an ordinary proprietor would have the right to prosecute for such a trespass. It is only by treating it as prohibiting all 'inclosures' of public lands, by whatever means, that the act becomes of any avail."

The doctrine of that case, applied to the evidence in the present one, satisfies us of its sufficiency to justify the conclusions reached by the court below.

The judgment is affirmed.

UNITED STATES v. AMERICAN EXPRESS CO.

(Circuit Court of Appeals, Second Circuit. March 13, 1905.)

CUSTOMS DUTIES-CLASSIFICATION-SOAP PENCILS.

So-called soap pencils, for cleaning spectacle and eyeglass lenses, in which soap is the material of chief value, are dutiable as nonenumerated manufactured articles under section 6 of the tariff act of July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], and not as pencils under paragraph 456 (chapter 11, § 1, Schedule N, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678]).

Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, which affirmed the decision of the Board of General Appraisers (G. A. 5,528; T. D. 24,881), see 131 Fed. 656. Charles Duane Baker, Asst. U. S. Atty.

Howard T. Walden, for appellee.

Before LACOMBE and COXE, Circuit Judges.

PER CURIAM. We deem it unnecessary to add anything to the opinions of the board and of the Circuit Court upon the questions therein discussed.

The argument is now advanced, apparently for the first time, that the merchandise in question should have been assessed for duty under paragraph 456 of the act of July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678], which relates to "pencils of paper or wood, filled with lead or other material, and pencils of lead," etc. In our judgment, this contention is not well founded. Though called "soap pencils," the imported articles are intended for cleaning spectacle and eyeglass lenses, and do not belong to the class of writing or marking pencils manifestly referred to in paragraph 456.

The decision is affirmed.

KEYSTONE LANTERN CO. et al. v. SPEAR.

(Circuit Court of Appeals, Third Circuit. March 24, 1905.)

PATENTS-ANTICIPATION-LANTERNS.

No. 57.

The Spear patent, No. 413,464, for a lantern, claim 1, is void for anticipation, being so broad in its terms as to cover previous devices. Claim 2 held not infringed.

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

For opinion below, see 131 Fed. 879.

F. G. Dussoulas and Charles B. Collier, for appellants.
Francis T. Chambers, for appellee.

Before ACHESON and DALLAS, Circuit Judges, and McPHERSON, District Judge.

J. B. MCPHERSON, District Judge. The patent in controversy, No. 413,464, is for improvements in lanterns, and was granted to the appellee on October 22, 1889. The following paragraphs from the specification will explain its scope and purpose:

"My invention relates chiefly to lanterns, but is applicable to analogous illuminating apparatus wherein a guard-frame is employed in sustaining the different parts.

"The object of my present invention is to provide a simple, cheap, durable, and easily applicable means of uniting the oil-pot and chimney or globe with the guard-frame, the union being such as to increase the strength or rigidity of the structure at or in the region of the union, so that it will effectually withstand any damaging force or strain to which it is likely to be subjected. To accomplish all of this, and to secure other advantages in the matters of construction and operation, my improvements involve certain new and useful arrangements or combinations of parts and peculiarities of construction, as will be herein first fully described, and then pointed out in the claims.

"A, A1, are the upright guards, and B, B1, B2, B3, are the horizontal ringguards of the lantern-frame. These parts are notched together and interlocked or interwoven, as set forth in a separate application for patent of even date of filing herein, serial No. 280,632, by me made, and are preferably all made of flat metal considerably wider than it is thick. It is to this form of frame that

my present improvements are especially applicable; but obviously other forms might be substituted if a horizontal body-hoop frame-ring be employed and rigidly secured to the upright guards by notching them together. The body-hoop is applied to the body-hoop frame-ring, B, and receives the oil-pot. The hoop may be short as at C in Fig. 1, extending a little above and a little below the bottom of the body-hoop frame-ring, or it may extend considerably below that ring, as at C, Fig. 2, constituting also the base or foot of the lantern.

"The hoop, C, is formed to enter the body-hoop frame-ring, B, and it is secured in and on said ring, preferably, by being buckled under and over the inner margin thereof, as shown in the sectional part at a, a, and afterward 'dipped' or 'tinned,' if required. By thus uniting the body-hoop with the body-hoop frame ring (which may be easily and quickly accomplished by use of ordinary beading or reeding tools), the said hoop is not only securely held in place against any possibility of disarrangement, but the form of joint adds to the strength and stiffness of the structure in the region of the frame always most liable to damage; and it further dispenses with the use of solder, enabling me to complete the union easier, quicker and with much less expense than in other methods; but other methods may be adopted."

The present dispute concerns the first and second claims, which are as follows:

"(1) In a lantern, the combination, with the horizontal frame-ring, B3, secured to the upright guards, substantially as explained, of a body-hoop secured upon said frame-ring, substantially as and for the purposes set forth. "(2) In a lantern, the combination, with the flat metal horizontal framering notched upon and secured to the upright guards, of the body-hoop bent or buckled upon said flat metal ring, substantially as shown and described."

The first claim covers the combination of the frame-ring secured to the upright guards, with a body-hoop secured upon the ring, no matter by what means the union of the ring, the guards, and the hoop is effected; and, if this claim is valid, the appellants' lantern is a clear infringement. The second claim is much narrower and is confined to a particular kind of frame-ring, a particular method of securing the ring to the guards, and a particular method of securing the hoop to the ring. This claim, therefore, may be good, even if the first claim is invalid because it is too broad; and this, we may say at once concerning the first claim, is the conclusion to which we have felt obliged to come. Without going into a detailed examination of the prior state of the art, it is enough to say that a body-hoop is an essential part of such lanterns as are now under consideration. It is a vertically set, hollow cylinder of metal, usually of tin, and supports the oil-pot, the chimney or globe, and the other appliances connected with the light. In the earlier stages of the art, the upright guards were united directly to the hoop, no frame-ring being employed. As a further step in the development of the structure, the frame-ring was introduced, and to one of its edges the guards were fastened, while the body-hoop was secured to the other. This made a stronger lantern, and was a distinct advance. These steps had already been taken, however, before the patent in suit was granted. To refer to no other lantern, "Porter No. 2," which antedates the appellee's device, shows a frame composed of vertical guards and four horizontal rings, one of them being a frame-ring (called a "flange" by the appellee, in the effort to distinguish the two lanterns), to which the guards are