That the receivers also owed him $1,898.33 | business, and no lien shall have been acfor work which he did for them after their quired by any employe of such corporation appointment, in connecting said wires at during that period, then and in that case Lake Station and Hammond with their such lien so created shall have priority over westward connections, under which em- the lien of such employe in the county ployment he erected and completed the where such corporation is located or doing wires to a distance of about four miles from business, and not otherwise: provided, the court-house in Chicago, such indebted- further, that this section shall not apply ness including also the purchase by him of to any lien acquired by any person for pura large amount of materials and the pay-chase money. The notices of lien filed by ment of freight-bills, and the doing of other Vane were all in the following form, the work; and that the receivers also owed name of the county being different in each him other moneys, which he had paid for case: "De Kalb County. Notice is hereby the wages and expenses of men who per- given to the Bankers' and Merchants' Telformed work for the receivers in respect of egraph Company, incorporated and organthe telegraph line between December, 1884, ized under the laws of the state of New and February, 1885. The petition prayed York, doing business in the county of De for the payment of the claim of Vane out Kalb, in the state of Indiana, and all othof the first moneys coming into the hands ers interested: You are hereby notified of the receivers, as a superior lien to all that I, James E. Vane, hereby intend to claims except those of a like class.* The lien hold a lien upon the poles and wires strung covered by the notices purported to be thereon, the switch-boards, telegraph inclaimed under the act of the legislature of struments and battery, and all other fixtIndiana approved March 13, 1877. Laws ures and property of said company, togethInd. 1877, (Sp. Sess.) c. 8, p. 27; also, Rev.er with all the earnings of said company in St. Ind. 1881, §§ 5286-5291.

said county of De Kalb. I hold this lien for work and labor done and performed and materials furnished in the construction of their line of telegraph through said county, and at their special instance and request, to the amount of sixteen thousand dollars. The labor was performed and materials furnished on and after the 15th day of June, 1884. That he intends to hold this lien upon all the poles, wire strung and unstrung, switch-boards, telegraph instruments and batteries, whether in use or not, and all fixtures and property belonging to said company in said county of De Kalb, together with earnings thereof, until his claim is paid and satisfied. JAMES E. VANE. September 15, 1884."

Sections 1 and 2 of the Act of 1877, being sections 5286 and 5287 of the Revised Statutes, provide as follows: “Section 1. Be it enacted by the general assembly of the state of Indiana, that the employes of any corporation doing business in this state, whether organized under the laws of this state or otherwise, shall be, and they are hereby, entitled to have and to hold a first and prior lien upon the corporate property of any corporation, and the earnings thereof, for all work and labor done and performed by such employes for such corporation, from the date of their employment by such corporation; which lien shall lie prior to any and all liens created or acquired subsequent to the date of the em- The receivers put in an answer to the peployment of such employes by such corpo-tition, setting up that as to so much of it ration, except as in this act provided. Sec. 2. Any employe wishing to acquire such lien upon the corporate property of any corporation, or the earnings thereof, whether his claim be due or not, shall file in the recorder's office of the county where such corporation is located or doing business notice of his intention to hold a lien upon such property and earnings afore-ceivers had executed, under an order of the said, for the amount of his claim, setting supreme court of New York and under the forth the date of such employment, the direction of the circuit court, receivers' cername of the corporation, and the amount tificates to the amount of $130,000, to be of such claim, and it shall be the duty of used in the payment of the debts of the dethe recorder of any county, when such no-fendant, and $20,000, to be used to complete tice is presented for record, to record the the construction of its telegraph lines, same in the record now required by law for which certificates were made, by an order notice of mechanics' liens, for which he of said supreme court, dated November 3, shall receive twenty-five cents; and the lien 1884, and an order of the circuit court, datso created shall relate to the time when ed December 15, 1884, a first charge and lien such employe was employed by such cor-upon all the property of the defendant withporation, or to any subsequent date during in the state of Indiana; that, in pursuance such employment, at the election of such of those orders, the receivers had executed, employe, and shall have priority over all acknowledged, and recorded a mortgage, liens suffered or created thereafter, except bearing date November 7, 1884, to secure other employes' liens, over which there the payment of the receivers' certificates; shall be no such priority: provided, that that those certificates, to the amount of where any person other than an employe $150,000, were outstanding in the hands of shall acquire a lien upon the corporate persons who took them as innocent purproperty of any corporation located or do- chasers without notice; and that, long be ing business in this state, and such lien re-fore the rendering of the services by Vane, mains a matter of record for a period of the defendant had executed, acknowledged, sixty days, in any county in this state and recorded a general mortgage upon all where such corporation is located or doing its property in Indiana as well as the other

as sought to enforce a lien upon the tele-r. graph property and its rents and incomes Vane did not occupy, in his transactions with the defendant, the relation of an employe, but of a general contractor, and was not entitled to claim or enforce a lien; that he was not entitled to a first lien, because, before he filed his petition, the re

states through which its lines extended, | The master is of the opinion that in doing covering its franchises, rents, and profits, this work Mr. Vane was an employe of the to secure an issue of bonds amounting to company, within the meaning of section $10,000,000, which were outstanding, un- 5286, Rev. St. Ind. 1881. He has filed his nopaid, and in the hands of persons who took tice, as required by section 5287, in the counthe same for value, and without notice of ties through which the telegraph is built. any equities against the same. A replica- This lien covers the following items: tion was put in to this answer, and on the For stringing wires, 248 miles, $45 per 16th of May, 1885, the petition of Vane was mile.... referred to a master to take evidence, and report the same with his findings thereon. On the 30th of January, 1886, the master, having taken the evidence produced by the parties, filed his report, containing the following statements:

For putting in cross-arms from Lake
Station to Hammond..

For stringing 2 wires from Hammond
For extra work and delay..
to Junction, etc.

Deduct credits......

Bal. due.........

$11,160 00

600 00

560 00 1,951 12

$14,271 12 500 00

$13,771 12

"Ifind and report that he has no lien as to the sum of $1,298.50 for cash paid for freight, livery, etc. Vane's claim accrued prior to the order made by the supreme court of New York, November 3, 1884, authorizing the issue of $150,000 of special receivers' certificates, to secure which a trustdeed or mortgage was executed, and I report and find that for said sum of $13,771.12 Vane is entitled to priority over the lien of the certificates above named. Vane also asserts a right to a common-law lien, which he bases on the following facts, which are not controverted: The contract with Vane was made in June, 1884. November 12, 1884, the work was practically done, but the connections were not made. Mr. Vane kept connections to be made, and turned the ends of the wires down into the ground. He retained such possession until November 20, 1884, when he delivered possession to the receivers, with an agreement that such delivery was not to impair any rights or liens he might thus have by virtue of such possession. He had such possession when the order allowing the issue of receivers' certificates was made, and also when the certificates were issued, November 11, 1884. I report and find that, by perfecting his claim for a lien under the statute Mr. Vane waived the right he had, if any, to assert his common-law lien. In addition, there is due to Vane from the receivers, for work done for them, $1,898.33. The work was done after the certificates were authorized by the order of November 3, 1884, but before the issue of the certificates issued by subsequent orders. I report and find that for the sum last named Vane should be postponed as to the issue of $150,000 of certificates, but that he should be preferred as to those which were subsequently issued."

"Mr. Vane, the petitioner, was employed by the telegraph company to put on arms and insulators, and to string' additional wires on the poles of the company from Freeport Junction, Ohio, to Lake Station, Indiana, a distance of 248 miles, for $45 per mile. The company agreed to furnish and deliver to Vane, at the nearest accessible railway stations, all the necessary material for the work. Vane was to do or furnish the labor necessary to string the wires, etc. He did the work, hiring men for the purpose and assisting in person. The amount owing to him on this account is eleven thousand one hundred and sixty dollars ($11,160.) He also put in cross-arms and insulators, and strung four wires from Lake Station to Hammond, 16 miles, at $37.50 per mile, the company furnishing material and Vane doing or furnishing the labor. The amount owing to him on this account is six hun-possession of the wires by refusing to allow dred dollars, ($600.) He also strung two wires from Hammond to the junction of the Chicago Board of Trade lines, 28 miles, at $20 per mile, for which there is due him five hundred and sixty dollars, ($560.) During the progress of the work the company failed to furnish the material as it was required, so that the men working for Vane were without employment a portion of the time. Vane asked for instructions, and was directed by the company to keep his men together during the delay thus caused, it being the understanding that the company would pay their board while they were waiting. The master is of the opinion that it is to be fairly inferred from the evidence that the company would pay for the time thus lost, Vane being required to pay his men as if they were at work. Vane also made some advances for freight on material shipped to him, but which he could not obtain possession of until the freight was paid. He also paid out various sums of money for livery hire, telegrams, etc., made necessary by the company's failure to furnish material promptly. He also did extra work on the line, at the request of the company, which was not covered by the original agreement. The amount due him for this extra work, and for the time of his men lost by delay, is $1,951.12. The amount due him for cash advanced to pay freight, livery hire, telegrams, etc., is $1,298.50. August 11, 1884, he was paid $300; September 11, $200; total credits, $500. Exhibit No. 1, which was filed March 7, 1885, contains all the foregoing items in detail, and has been audited and approved by the company. There is no controversy as to the amount. The only real question is as to what preference or lien, if any, has the intervenor.

In February, 1886, the receivers filed exceptions to the report of the master, because of his allowance to Vane of a lien for the $13,771.12, on the ground that he was an employe of the defendant, within the meaning of section 5286. The exceptions claimed that Vane was a contractor in his agree ment with the defendant, and not its emplove; that the item of $600 for putting in cross-arms was not covered by his notice of lien nor by the contract under which the labor was performed; and that he had no lien for that service,-and they made a like claim in regard to the item of $1,951.12. Vane filed exceptions to the report because the master had found that he was not en

*227

233

66

titled to a lien for the $13,771.12, paramount the duties of a servant, and not," as he to the holders of receivers' certificates and was, a mere contractor, bound only to all other mortgage liens, and had not produce, or cause to be produced, a certain found that Vane was entitled to a para- result,-a result of labor, to be sure,-but mount lien over all such other liens for the free to dispose of his own time and personentire amount of $15,069.62, and had de-al efforts according to his pleasure, with ducted the $500 from the $14,271.12, and not out responsibility to the other party." It from the $1,298.50, and had not awarded a is to be noted that the statute gives a lien lien for the $1,298.50. The case was heard to employes of the corporation only for on these exceptions by Judge Woods, hold- work and labor done and performed by ing the circuit court. His opinion, delivered them for the corporation. It does not give in April, 1886. (27 Fed. Rep. 536,) recites the a lien for the value of materials furnished, material findings of the master, and then nor for advances of money made. It is says: "In the opinion of the court, the pe- confined to work and labor done and pertitioner had no lien at common law or in formed, and to work and labor done and equity, and was not an employe of the tele- performed by employes of the corporation, graph company, within the meaning of the and to work and labor done and performed statute referred to by the master. That by employes of the corporation for the corstatute provides that 'the employes of any poration. In this respect there is a marked corporation doing business in this state difference between the provisions of section ⚫ shall be entitled to have 5286 and the provisions of section 15 of the and hold a first and prior lien upon the cor- Act of March 8, 1879, (Laws 1879, p. 22; porate property and the earnings section 5471, Rev. St. 1881,) which gives a thereof, for all work and labor done lien, in coal mines, on the mine, "and all by such employes for such corporation.' machinery and fixtures connected thereTo be entitled to the benefits of this statute, with, including scales, coal-bank cars, and and others of like character since enacted, I everything used in and about the mine," to think it clear that the employe must have "the miners and other persons employed been a servant, bound in some degree, at and working in and about the mines, and least, to the duties of a servant, and not, the owners of the land or other persons like the petitioner, a mere contractor, bound interested in the rental or royalty on the only to produce or cause to be produced a coal mined therein," "for work and labor certain result,-a result of labor, to be sure, performed within two months, and the -but free to dispose of his own time and owner of the land, for royalty on coal takpersonal efforts according to his pleasure, en out from under his land, for any length without responsibility to the other party. of time not exceeding two months." This In respect to the sums found due the peti- miners' statute gives a lien to all persons tioner, the report is confirmed, but, to the "employed and working in and about the allowance of a lien, exceptions sustained." mines," for work and labor performed by In pursuance of this decision, the court them, without stating that they must be made an order overruling the exceptions of employes of the owners of the mine, or of Vane, and sustaining so much of the excep- the persons working it, or of the persons tions of the receivers as related to the claim owning the machinery and fixtures, and for a lien in favor of Vane, but confirming without stating that they may not be perthe report as to amounts found to be due sons working in and about the mine, emto Vane. The order adjudged that Vane ployed by contractors doing work under had no lien upon the property of the defend- contract for the owners of the mine, or for ant for the $15,069.62; that that sum was a the owners of the machinery and fixtures. general floating debt of the defendant, not The general mechanics' lien law of Indiana, entitled to any priority; but that the (section 5293, Rev. St. 1881,) subsequently re$1,898.33 was a valid debt of the receivers, enacted by the act of March 6, 1883, (Laws payable out of any funds in their hands as 1883, p. 140,) provided that "mechanics, such, available for payment of the debts of and all persons performing labor or furthe trust. Vane has appealed to this court nishing materials for the construction or from so much of the decree as disallows his repair of any building, or who may have claim for a lien for the $15,069.62, and from furnished any engine or other machinery the overruling of his exceptions and the sus- for any mill, distillery, or other manufactaining of the exceptions of the receivers. tory, may have a lien separately or jointly upon the building which they may have constructed or repaired, or upon any buildings, mill, distillery, or other manufactory for which they may have furnished materials of any description, and on the interest of the owner in the lot or land on which it stands, to the extent of the value of any labor done or materials furnished, or for both." This mechanic's lien statute gives a lien upon a building to all persons who perform labor or furnish materials for the construction or repair of the building, even though they do it under a contract, and is not confined to employes of the owner of the building; and it also gives a lien upon a manufactory to persons who may have furnished machinery or materials for the manufactory, even though they may have done so under contract with the owner of the

It is contended for Vane that he has a lien under section 1 of the Act of 1877, (section 5286, Rev. St.) That section gives a first and prior lien upon the corporate property of any corporation doing business in Indiana, whether organized under the laws of that state or otherwise, and upon the earnings of such corporation, to its employes, for all work and labor done and performed by them for the corporation, from the date of their employment by it. It seems clear to us that Vane was a contractor with the company, and not an employe, within the meaning of the statute. We think the distinction pointed out by the circuit court is a sound one, namely, that to be an employe within the meaning of the statute Vane "must have been a servant, bound in some degree, at least, to

manufactory, or under contract with the day's labor or service for immediate or contractor with such owner. The supreme present support, from whom the company court of Indiana, in Colter v. Frese, 45 Ind. did not expect credit, and to whom its fut96, in 1873, in construing that statute, ure ability to pay was of no consequence, which was section 647 of the then existing-one who was responsible for no indeRevised Statutes, held that a person who pendent action, but who did a day's work furnished materials, not to the owner, but or a stated job under the direction of a suto the contractor, for the erection of a new perior; that the word "servant" must be building, could acquire and enforce a lien limited by the more specific words "laboron the building, and on the interest of the er" and "apprentice," with which it was owner of the land on which the building associated, and be held to comprehend stood, to the extent of the value of the ma- only persons performing the same kind of terials furnished. service that was due from laborers and apIn view of these provisions of other lien prentices; and that a general manager was statutes of Indiana, the limited language not ejusdem generis with an apprentice or of section 5286 is very marked, and justifies laborer. In Gurney v. Railway Co., 58 N. the interpretation that the provisions of Y. 358, in 1874, a case relied on by the apthat section are to be confined to a special pellant, a receiver of a railroad company class of persons. It is a rule of interpreta- was directed by an order of court to pay tion recognized by the supreme court of In-out of moneys in his hands "arrearages diana in Stout v. Board, 107 Ind. 343, 348, 8 N. owing to the laborers and employes" of E. Rep. 224, that "in case of doubt or uncer- the company "for labor and services actutainty,acts in pari materia, passed either be-ally done in connection with" the comfore or after, and whether repealed or still in pany's road. Claim was made by a counforce, may be referred to in order to discern selor at law for professional services as the intent of the legislature in the use of par- counsel for the railroad company, rendered ticular terms, or in the enactment of par- prior to the appointment of the receiver. ticular provisions, and, within the reason of The question raised was whether the lanthe same rule, contemporaneous legisla-guage of the order covered employes who tion, not precisely in pari materia, may be had not been in the stated and regular emreferred to for the same purpose." The view ployment of the company. The court held above taken of the statute under considera- that, in view of the special language of the tion is supported by adjudged cases. In order, it included the claim for the profesAikin v. Wasson, 24 N. Y. 482, in 1862, it was sional services. It appeared that the orheld that a contractor for the construction der was made as the result of negotiations of part of a railroad was not a laborer or in regard to which the counsel under whose servant, within the provision of the gener- advice the order was obtained testified al railroad act of New York, making stock- that the word "employes" was used in holders of a railroad corporation personal- the negotiations "not in any particular or ly liable for all the debts due or owing to strict sense, but according to its ordinary any of its laborers and servants for serv- and general meaning, as including attorices performed for such corporation." In ney's compensation as well as that of othMunger v. Lenroot, 32 Wis. 541, in 1873, un- er persons employed by the corporation.” der a statute which gave a lien on logs or The decision appears to have gone upon timber for the amount due for his labor or the ground that the person who made the services, to any person who did or per-claim had rendered "services" in connecformed any work or services in cutting, felling, hauling, driving, running, rafting, booming, cribbing, or towing such logs or timber, it was held that such person was entitled to such lien, not only when employed by the owner of the logs or of the It is further contended that Vane had a lien land from which they were cut, but also by virtue of the general mechanic's lien law, when employed by a contractor under such before referred to, which was re-enacted by owner. The court was of the opinion that the act of March 6, 1883, (Laws 1883, p. 140; the legislature intended to give the lien ab- Elliott's Supp. 1889, §§ 1688, 1690,) in the solutely to the laborer, regardless of the following language: "Section 1. Be it enquestion whether he had rendered the serv-acted by the general assembly of the state ices under a contract with the general of Indiana, that mechanics, and all perowner or not. This decision was based sons performing labor or furnishing mateupon the special language of the statute, rial or machinery for erecting, altering, rein not excluding a person employed by a pairing, or removing any house, mill, mancontractor. In Wakefield v. Fargo, 90 N. ufactory, or other building, bridge, reserY. 213, in 1882, it was held that a person voir, system of water-works, or other employed by a corporation, at a yearly structure, may have a lien, separately or salary, as a book keeper and general manag-jointly, upon the house, mill, manufactory er, was not a laborer, servant, or appren- or other building, bridge, reservoir, system tice, within the provisions of a statute of of water-works or other structure, which New York making the stockholders of the they may have erected, altered, repaired, corporation "liable for all debts that may or removed, or for which they may have be due and owing to their laborers, serv- furnished material or machinery of any deants, and apprentices for services performed scription, and on the interest of the owner for such corporation." The view taken of the lot or land on which it stands, or by the court was that the services referred with which it is connected, to the extent to were menial or manual services; that of the value of any labor done or materials he who performed them must be of a class or machinery furnished, or both." "Sec. 3. who usually looked to the reward of aAny person wishing to acquire such lien

tion with the railroad, and was consequently an employe, within the meaning of the order. We are, therefore, of opinion that Vane had no lien under the act of March, 1877, (section 5286, Rev. St. )

apon any property, whether his claim be due or not, shall file in the recorder's office of the county, at any time within sixty days after the performing of such labor or furnishing such materials or machinery, notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth therein the amount claimed, and giving a substantial description of such lot or land on which the house, mill, manufactory, or other building, bridge, reservoir, system of water-works, or other structure may stand or be connected with, or to which it may be removed. Any description of the lot or land in a notice of lien will be sufficient, if, from such description, or any reference therein, thelot orland can be identified." In regard to this, it is sufficient to say that the notice of lien filed by Vane in September, 1884, did not comply with section 3 of the statute, in regard to a description of the "lot or land on which the structure stood upon which he claimed a lien.

stated by the parties, or finding of facts by the court. The bill of exceptions, after setting forth all the evidence introduced at the trial, states that "there were no declarations of law asked for or given by the court;" and the single exception taken is to the overruling of a motion for a new trial, which is a matter of discretion, and not a subject of exception, according to the practice of the courts of the United States. In regard to motions for a new trial and bills of exceptions, those courts are independent of any statute or practice prevailing in the courts of the state in*which the trial is had. Railroad Co. v. Horst, 93 U. S. 291; Newcomb v. Wood, 97 U. S. 581; In re Iron Co., 128 U. S. 544, 9 Sup. Ct. Rep. 150. Judgment affirmed.

(132 U. S. 195)

MARCHAND v. EMKEN.1

(November 25, 1889.)

uid, by means of an obliquely bladed screw, revolving by machinery, a rotary motion; the liquid being thrown horizontally in opposite directions from the center or radially and vortically, according to the shape of the vessel, a motion which could not be imparted by hand. It was necessary to keep the other substances, but the motion had heretofore liquid in motion to aid the reaction when adding been imparted by stirring with the hand, so that only a small quantity could be manufactured at a time. Held, that the claim was void for want of

PATENTS FOR INVENTIONS-INVENTION. A common-law lien and an equitable lien Claim 1 of letters patent No. 273,569, March are also claimed. As to the common-law 6, 1883, to Charles Marchand, for an improvement lien, the master reported "that, by perfect-ing an acid solution, was for imparting to the liqin the manufacture of hydrogen peroxide by cooling his claim for a lien under the statute, Mr. Vane waived the right he had, if any, to assert his common-law lien." We concur in this view, as to the personal property and earnings of the corporation. As to the poles and wires, they were real estate, on which there could be no lien at common law. In addition to this, Vane gave up any right he had to a common-law lien, as to the wires, by giving up possession of them on November 19, 1884. The lien re-invention. ferred to in the paper of that date, signed by the receivers, as a lien claimed by Vane, was the statutory lien which he had attempted to secure by his notice dated September 15, 1884. Nor do we see any ground for saying that he had or retained an equitable lien.

States for the southern district of New York, Appeal from the circuit court of the United B. F. Lee and W. H. L. Lee, for appeliant. BLATCHFORD, J. This is a suit in equity, brought in the circuit court of the United States for the southern district of New It is also claimed that the instrument of York, by Charles Marchand against FredNovember 19, 1884, fixed a lien upon the prop- erick Emken, to recover for the infringement erty. We do not so understand it. It con- of letters patent No. 273,569, granted to the ferred no new right upon Vane. It only re-plaintiff March 6, 1883, for an improvement fers to such lien, if any, as existed,-to a lien claimed by him. Where it speaks of "the lien of the said Vane," it refers to what it had before spoken of as the lien claimed by him. The purport of the paper is simply that the use of the wires by the receivers shall not be construed as impairing or interfering with the lien claimed by Vane, that is, with any lien which existed under the statute under which he had given and filed his notices, dated September 15, 1884. Decree affirmed.

(132 U. S. 191)

in the manufacture of hydrogen peroxide. The specification says: "This invention has reference to the manufacture of hydrogen peroxide, or oxygenated water, by addition of barium or calcium binoxide to an acid, (sulphuric, nitric, acetic, oxalic, hydrochloric, hydrofluoric, hydrofluosilic, and the like,) the binoxide having been mixed with water. Heretofore hydrogen peroxide has been made by adding the barium or calcium binoxide, mixed with water, to the diluted acid, the binoxide being added from time to time in small quantities; the vessel in which the operation is conducted being set

MISSOURI PAC. RY. Co. v. CHICAGO & A. R. Co. in a refrigerating medium, and the liquid be

(November 25, 1889.) APPEAL-REVIEW-NEW TRIAL.

Overruling a motion for new trial, in the federal courts, is a matter of discretion, and where, on error, that is the sole exception, the supreme court will affirm the judgment.

In error to the circuit court of the United States for the eastern district of Missouri. John F. Dillon, for plaintiff in error. Alex. Martin, for defendant in error.

GRAY, J. In this action, tried by the circuit court without a jury, there is no case v.10s.c.-5

ing agitated or stirred to facilitate the reaction. The stirring has been performed by hand. The present invention is based on the fact or discovery that the reduction of the barium or calcium binoxide takes place under conditions much more favorable in point of rapidity and yield when the acid to be neutralized is given a movement of rotation, both vertically and horizontally, by a screw or other suitable means, which at the same time creates both constant and ever-chang'Affirming 26 Fed. Rep. 629.