Volume 100 — Federal Reporter

On December 15,1897, Harry L. Laws sued William G. Pearce and Hamilton B. Cantey in the United States circuit court for the Eastern district of Louisiana for $3,4.91.60. Tho suit was on an authentic act of contract, and pledge of date July 14, 1897. This contract gave Laws a lien and privilege on tho crops to be grown by the defendants during the current year, and on the sugar and molasses to be manufactured therefrom and from cane to be purchased by the defendants.

<p>Promissory Notes — Payable from Particular Fund — Effect of Recitals.</p> <p>Where the articles of association of a joint-stock company whose property was vested in trustees empowered such trustees to borrow money for purposes of the association, and provided that any debt incurred therefor should be a lien upon the property and funds of the association, but that the trustees'should have no power to bind the shareholders personally, one who loaned money to the trustees, talcing their note therefor, secured by collateral, and containing an express statement that it was given under such articles, and not otherwise, may consistently with legal principles be limited to a remedy against the trust property, and cannot maintain an action thereon against shareholders.</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p>

<p>Petition fox* rehearing.</p>

<p>Sale — Actioit for Price — Fraudulent Concealment of Facts.</p> <p>Plaintiff, an English corporation, sold defendant three cargoes of ore, to be paid for in accordance with test analyses made at the port of delivery by one of two chemists named, who was “to be selected by plaintiff. Plaintiff, however, requested defendant to make the selection, and notify it of the same. This was not done, but on the arrival of the first cargo defendant had the ore sampled and analyzed by both chemists, and sent plaintiff a copy of the lower analysis, together with a draft, in settlement on that basis, which plaintiff accepted. The same course was pursued, and the analysis of the same chemist used with the second and third cargoes, but the grade shown was so low that it was not satisfactory to plaintiff, which asked to have the ore resampled, and received answer that it could not then be done. Defendant sold the ore in accordance with the other analysis, which made the grade materially higher, but at no time disclosed the fact of such analysis to plaintiff. Heidi, that he was bound, in good faith, to do so, and, having concealed the fact when reporting the first assay, its acceptance by plaintiff was not a selection of the chemist making it, under the contract, which precluded plaintiff from recovering from defendant in accordance with the analysis by which he sold.</p>

This is a writ of error to review a judgment recovered by Susan J. Lord, Florence 0. Held: at which the application for the loan was approved, and the action indorsed upon the application as above.

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p>

<p>1. Postmasters — Action on Bond — Failure to Account for Money Orders.</p> <p>It is not essential to support an action on the bond of a postmaster for failing to account for money orders which were made upon blank forms intrusted to him for his use, and which have been paid .by the offices on which they were drawn, and in due course charged to his account on the books of the department, that it should be proved that he actually received the money therefor.</p> <p>2. Same.</p> <p>Under section 1243 of the regulations of the post-office department, which requires postmasters to keep their blank money order forms in their own custody and under look and key, and states that they will be held responsible for any loss which the department may suffer arising from fraud made possible through a disregard of such regulation, where a postmaster negligently delivers blank orders to a stranger, and they are filled up, the name of the postmaster forged thereon, and they are paid by the offices on which they are drawn, and in due course charged to the account of such postmaster in the books of the department, 'it becomes his duty to account for such orders, and on his refusal to do so the amount, paid thereon may he recovered in an action on his bond.</p> <p>3. Samé.</p> <p>The declaration in an action on a postmaster’s bond, conditioned as required by statute for a money-order office, alleged that the postmaster did not perform all of the .duties and obligations imposed upon him by the law and the rules and regulations of the post-office department, in that he failed to account for a certain number of money orders of great value, to wit, of a value stated. ' In support of such declaration, a duly-certified transcript from the books of the department, showing such orders paid and charged to defendant’s account, was introduced in evidence, together with proof of demand and refusal to pay the balance thereby shown. In defense evidence was introduced showing that the postmaster’s assistant had delivered such orders in blank to a stranger, on his claim that he was an inspector, and that they had subsequently been filled out, and the pos.tmastér’s signature thereto forged. Held, that such evidence did not establish a variance between the proof and the declaration by showing that the ‘government’s cause of action was in tort, and not in contract on the bond, for a failure to account for the orders intrusted to the postmaster’s custody, and that the direction of a verdict for defendant on that ground was error.</p>

<p>Final Hearing on a Bill for the Foreclosure of a Mortgage.</p>

<p>1. Master astd Servant — Save Place to Work.</p> <p>The rule that it is the duty of a master to provide his servant with a reasonably safe place in which to work is not an absolute one, but is qualified and limited by the other rule, that the servant assumes all the ordinary risks incidental to the service, so far as those risks at the time of entering upon the service are known to him, or should be readily discernible to a person of his age and capacity, in the exercise of ordinary oare, whether the business is dangerous or not. Such rules do not deprive the master of the right to manage and conduct his business according to his own judgment, even though other methods might be safer; and where the place provided by him for the servant to work is free from dangers which are latent or not obvious, or he has instructed the servant, upon entering his service, expressly as to such dangers, if they exist, he has fulfilled his duty in the premises.</p> <p>2. Same — Action by Servant for Injury — Questions for Jury.</p> <p>In the absence of evidence that the danger which resulted in injury to a servant was hidden, or that the servant was misled by the failure of the 'master to adopt such constructions, methods, or rules as were usual in the business, and which the servant had the right, therefore, to take for-granted, until otherwise instructed, it is not proper to submit to the jury the question whether, in their jiidgment, the place of work was reasonably safe or the rules reasonably proper, and thus make their judgment on these points the test of the master’s liability. But where there is a question, arising upon the evidence, whether the danger was obvious, and should have been known to the servant under all the circumstances, or, if not, whether he had been properly instructed, the question of the liability of the master is one for the jury, under proper instructions.</p> <p>8. Same — Contributory Negligence.</p> <p>Plaintiff’s duties at defendant’s iron works required him, about six times-during each night, to run a wheelbarrow along a path which passed immediately in front of a doorway through which a narrow-gauge railway track entered the building, on which cars were run by engines at frequent intervals. In crossing the track at a time when the doorway was obscured by steam from an exhaust pipe on one side of it, plaintiff was struck by an engine coming out and injured. He had been working but three nights prior to the accident, and there was evidence tending to show that during that time an engine had come out but once when he was passing, and that on such occasion a boy had preceded it and given him warning. He did not speak the English language, and it was not clear that he had been fully instructed as to the danger. Heidi, that the question of his contributory negligence was properly submitted to the- jury.</p>

This action was brought by Edward Dana, who was the plaintiff in the court below, and who is the defendant in error here, to recover upon 75 interest coupons of $30 each, maturing, part of them, September 1, 1896, part March .1, 1897, and the remainder September 1, 1897.

<p>Bankruptcy — Opposition to Discharge — Concealment oe Assets.</p> <p>Where a bankrupt was in (lie control and' management oí a retail business, which he alleged was the property of his wife, but it appeared that he had transferred the building and stock in trade to his wife at a time when he was threatened with the enforcement of a large judgment against him, that the wife had no money at the time, and that the business was the only source of support of the bankrupt and his family, held, that the transfer to the wife was colorable only, and fraudulent as to creditors, and left the bankrupt the real owner, and that his failure to list the property in his schedule of assets was ground for refusing his application for discharge.</p>

<p>This was an action to recover an amount paid as internal revenue tax, and alleged to have been illegally exacted.</p>

<p>On Demurrer to Information.</p>

<p>Trade-Marks — Unfair Competition — Temporary Injunction.</p> <p>' Complainant was the manufacturer of a special line of ladies’ shoes, which it designated and extensively advertised by the general name of “Queen” shoes, also stamping therein as a trade-mark a peculiar form of the words “Queen Quality.” Defendant was not a manufacturer, but a • dealer in shoes, and as such it purchased shoes as nearly like complainant’s as possible in style and quality, and caused to bo stamped therein, whore complainant placed its trade-mark, the word “Queen,” together with its name and address. Held¡ that, while the right ot complainant to the exclusive use of the word “Queen” as a technical trade-mark was doubtful under the facts shown, the action of defendant clearly showed an intention to deceive purchasers, which was likely to be successful, and to profit by the reiratalion complainant had made for its shoes, which constituted unfair competition, and- entitled complainant to a preliminary injunction.1</p>

<p>1. Copyright — Suit to Recover Penalty for Infringement — Jurisdiction of Circuit Court.</p> <p>Under Rev. St. § 029, which vests in the circuit courts original jurisdiction of “all suits at law or in equity arising under the patent or copyright laws of the United States,” such courts have jurisdiction of suits brought under section 4905 to recover the penalty thereby imposed of one dollar for each infringing copy of a copyrighted engraving', photograph, etc., found in the possession of the defendant, as such suit, involves both the validity and infringement of the copyright on which it is founded, although the general jurisdiction over actions for penalties and forfeitures is vested in tlie district courts.</p> <p>2. Same — Pleading—Sufficiency of Declaration.</p> <p>In a suit against a corporation, brought under Rev. St. § 4965, to recover the penalty thereby imposed for infringing a copyrighted photograph, an allegation that a certain number of the infringing copies were found in the possession of the defendant corporation prior to the institution of the suit, is suflicient, and it is not necessary to state wliat officer or agent had them in his custody, or the authority under which he was acting, which are matters of evidence.</p> <p>8. Same.</p> <p>Where a statement of claim in a suit under Rev. St. § 4965, to recover a forfeiture for infringement of a copyrighted photograph, properly alleges the copying, printing, publishing, and exposing for sale of the infringing copies by defendant, either of which constitutes the infringement under the statute, it need not allege that defendant was actually engaged in any of such acts at the time copies of the infringing publication were found in his possession.</p> <p>4. Same.</p> <p>An allegation in such statement that the infringing copies were made within two years next before the commencement of the suit, and were found in defendant’s possession prior to the time it was brought, is sufficiently specific as to the time when they were so found.</p> <p>6. Same.</p> <p>It need not be alleged in such statement that the copies were found in defondant’s possession by the plaintiff, or some one acting in his behalf; such fact not being made essential to recovery by the statute.</p>

<p>1. Patents — Gat,vantc Battery — Invf.ntion—Anticipation.</p> <p>The Hayden patent, No. 600,284. for a galvanic battery, where the leading idea is the combination of a large carbon plug, passing through the cover of the containing vessel, with a coarse screw-thread on the inside end, which engages with a corresponding thread in the solid top of the carbon electrode, and, by its friction and abrasion of the engaging threads, produces a more perfect conductivity than had otherwise been obtained, — the plug also serving as a support for the carbon element,— discloses patentable invention, notwithstanding the essential elements of the combination are old, and was not anticipated by the Harris or Hiclc-ley patents.</p> <p>3. Same — Infringement.</p> <p>The Hayden patent, No. 509,2S4, for a galvanic battery, is infringed by a construction containing a screw-threaded carbon plug passing through the cover of the containing vessel, and connecting the electrode with the cover, and interlocking with the electrode and a binding post carried by the plug, and located outside the containing vessel.</p>

<p>TMs is a suit in equity for infringement of a patent.</p>

<p>1. Patents — Suit for Infringement against Assignor — Estoppel.</p> <p>An inven for who has assigned the patent for his invention cannot be permuted, in a suit against him for its infringement, to introduce evidence for the ostensible purpose of so narrowing the scope of the patent as to avoid infringement, but which in fact tends to show that it is invalid for want of novelty.</p> <p>2. Same — Infringement—Liability of Partner,</p> <p>A defendant cannot escape liability for infringement on the ground that the infringement was by a partnership, when it is shown that he was not only a member, but the manager, of the Ann under whose superintendency the patented process was used and the infringing product sold.</p> <p>3. Same — Process for Decorating Glass.</p> <p>The Scharling patent, No. 472,230, for a process of decorating glass with metal and for the resulting product, held infringed.</p>

<p>Appeals from the Circuit Court of the United States for the District of Massachusetts.</p>

<p>Patents — Assignment of Rights in Future Inventions — Construction of Contract.*</p> <p>An employs who was the patentee of threshing machinery embodied in a threshing machine called the “New Peerless,” manufactured by his employer under a license from him, granted to the employer an exclusive license to use such patents, and the exclusive right to use “all inventions and improvements in said machinery” thereafter made; also all “new designs of such machinery” made by him while in the employ of the licensee, and all inventions and improvements which should thereafter be made - thereon. Held, that such license did not grant the right to use a patent issued to the licensor after he left the licensee’s employ, for threshing machinery which was not an improvement on that of the New Peerless machines, nor an infringement of the patents under which such machines were made, but which embodied a different principle of operation, and devices which could not be used in the New Peerless machines, except by substitution; such patent being for a “new design,” within the meaning of the contract.</p>

This was a suit in equity for infringement of a patent. A demurrer to the bill was filed in the circuit court, and in passing thereon the following opinion was rendered by RICKS, District Judge: “This is a bill to establish the validity of letters patent No. 327,406, dated September 29, 1885, issued to the complainant for a crimping device for glassware. A demurrer has been filed to the bill, alleging that on the face it'fails to disclose a patentable invention.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Tíórthem District of Illinois.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p>

<p>1. Sihppikg — MaRttimb Touts — In jury to Ocean Cable.</p> <p>Evidence held to establish that an ocean cable was cut. by the officers of a vessel whose anchor became entangled therewith.</p> <p>2. Same — Liability op Vessel.</p> <p>The anchor of a schooner became entangled in an ocean telegraph cable, and in order to release it the officers cut the cable. The schooner remained at the same place until the following morning. There was no reason why she could not have cut away the anchor when ready to proceed, having another anchor on board. There was testimony that the vessel was within anchorage grounds, and hence not guilty of negligence in becoming entangled, and the cable was lawfully laid and maintained whore it was. Helé, that in view of 25 Stat. c. 17, § 8, which provides that a cable shall be cut only when necessary to save life or limb or a vessel, and of article 7 of the treaty of 1884, which requires cable companies to reimburse vessel owners for anchors sacrificed to avoid injury to a cable, the officers must he held guilty either of willful injury to the cable, or culpable negligence, for which the vessel was liable.</p>

<p>Seamen — Right to Discharge — Misunderstanding as to Voyage.</p> <p>. Under tbe maritime law of Great Britain, it is tbe duty of tbe master, in shipping seamen, to see that tbe contract is clear and explicit, and that tbe seamen are informed of tbe precise voyage for which they engage; and where it appears that such duty was not performed, and that seamen shipped in a foreign port without the sanction and attestation of the consular officer, as required by the merchant shipping act, signed under a misapprehension as to the voyage, and with the understanding that it was to terminate at a certain port, they will be there released, by a court of admiralty, although it does not appear that there was any intention to practice a fraud upon them.</p>

<p>1. -Shipping — Breach of Charter Party — Right of Actton For Damages.</p> <p>Libelant hired the libeled vessel under a time charter, and engaged her in voyages to a foreign port for bananas. It filed the libel to recover damages for breach of the charter party, alleging that, by reason of the defective condition of her boilers, more time was consumed in the voyages than.should have been, whereby it wab required to pay for the time so-lost, and the fruit became damaged, and large quantities were lost, while waitin’g shipment and on the voyages. The evidence showed that the fruit was not owned by libelant, but by a company at the port of loading, which shipped it to libelant to be sold on commission, libelant retaining from the proceeds the freight, all advances, and its commissions, and that libel-ant had been reimbursed in such manner for all freight and advances on account of the shipments in question. Helé that, conceding the breach of contract alleged to have been proven, libelant had sustained no damage therefrom which would sustain the action.</p> <p>2. Same — Amendment of Libel.</p> <p>Libelant could not be permitted, by an amendment of its libel, to claim and recover the damages alleged to have resulted from the breach of the charter on behalf of the owner of the cargoes; it not appearing that libel-ant acted as its agent in making the charter, or that such owner had any relation to the charter.</p> <p>3. Damages — Breach of Charter Party.</p> <p>The charterer of a vessel, which he employed in bringing from a foreign port cargoes o-f fruit owned by another, but consigned to him for sale on commission, cannot, in an action for a breach of the charter, alleged to have caused delay and consequent injury to the fruit, recover for loss of commissions which he would have made thereon; such losses being too remote and uncertain to furnish a measure of damages or to have been within the contemplation of the parties.</p> <p>4. Shipping — Injury to Cargo — Right of Consignee to Sue in Rem.</p> <p>The consignee of a cargo may maintain an action in admiralty against the vessel for an injury to his interest therein, and, when he is vested with the legal ownership by an assignment of the bill of lading, he may recover for any breach of the contract made by such bill of lading; but where there was no bill of lading, and he has no interest in the cargo, if he is, in any event, authorized to recover against the vessel on behalf of the consignor, it can only be such damages as result from a breach of the contract between shipper and carrier, and arising after the cargo has been received on board.</p>

This was a prosecution under 30 Stat. 763, c. 28, § 24, for making a false statement as to the amount due from a seaman.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia.</p>

<p>This was a proceeding by the Merritt & Chapman Derrick & Wrecking Company, owners of the steam tug Hustler, for limitation of liability for damages on account of collision.</p>

<p>Collision — Stationary Vessel — Negligent Navigation by Tug.</p> <p>A collision between a float in tow of a tug and a steamboat lying near her dock in the East river held, to have been caused by the fault of the tug in failing to keep near the center of the channel, as required by statute and by prudent navigation.</p>

<p>Collision — Steamer Striking Grounded Vessel.</p> <p>The steamer City of Macon, passing down the Savannah river, struck and injured the Teviotdale, which was aground across the center of the channel, though with room to pass on either side. She had been aground for some time, and was known to be by those in charge of the Macon, who could see her for several miles back. On approaching, the Macon’s signal was answered by a cross signal from the Teviotdale, from which the captain of the Macon concluded, as he testified, that she was in motion. Helds, that there was no justification for such conclusion, the grounded vessel being in plain view, and that it did not relievo the Macon from the presumption of negligence arising from the collision.</p>

<p>Collision — Drifting of Vessel from Anchorage — Inevitable Accident.</p> <p>The schooner Robbins was forced by stress of weather to put into an anchorage, where she east two anchors, one of which was attached to a chain, and the other to a new hawser of ample strength. In some unknown manner the hawser became' cut, and the schooner, dragging the other anchor, drifted during the storm against another vessel which had subsequently anchored to the leeward, and injured her. Held that, in the absence of evidence of any negligence on the part of her crew, the injury must he held to have been due to inevitable accident, for which the schooner was not responsible.</p>

In Admiralty. Petition by the owners of the steaming Argus for limitation of liability for damage caused by a collision. On petition for leave to file claims after default.

<p>Action at Law.</p>

<p>At Law.-. On motion to dismiss for want of jurisdiction.</p>

<p>1. COURT-MAKTrAD — -JUDGMENT—BAR TO ClVIL PROSECUTION.</p> <p>The finding and judgment of “Not guilty” by a military court-martial is not a bar to the prosecution for the same act by the civil authorities.</p> <p>2. Untíkd States Army — Orders of Officers — Protection to Private.</p> <p>An order given by a military officer to his private should be obeyed by the private, and will be his full protection in a criminal prosecution, unless the illegality of such order is so clearly shown on its face that a man of ordinary sense and understanding would know when he heard it read or given that the order was illegal.</p> <p>8. Criminad Law — Federad and State Jurisdiction.</p> <p>The government of the United States and of a state, though exercised within the same territory, occupy different planes, and the criminal laws of the one have no application to acts performed under the authority of the other in respect to matters solely within its control.</p> <p>4. United States Army — Regulations.</p> <p>Raws, rules, and regulations for the efficiency and discipline of the army of the United States are matters vested by the constitution solely in the general government.</p> <p>5. Criminad Laws — Acts of United States Agents — Jurisdiction.</p> <p>An officer or agent of the United States who does an act which is within the scope of his authority as such officer or agent cannot he held to answer therefor under the criminal laws of another and different government.</p> <p>6. Army Officer--Performance of Duties.</p> <p>The care, judgment, and discretion which should he exercised by an officer of the United States in the performance of his duty as such officer are not to he measured by the criminal laws of a state.</p> <p>7. Same — Liability.</p> <p>When an officer, in the performance of his duty under the laws of the United States, exceeds his authority, he may he sued in the state courts by any person injured by reason thereof, hut when the act was done in good faith, and without malice, he is not liable to a criminal prosecution in such courts.</p> <p>8. Habeas Coreits — Review—Determination—Acts of Soldier.</p> <p>While a United States court will not, In a habeas corpus proceeding by an officer of the United States, examine the evidence for the purpose of determining whether he should he found guilty or innocent, yet the court may and should examine the evidence for the purpose of determining whether the act alleged to be criminal was done while in the performance of his duty as such officer.</p> <p>9. Same.</p> <p>When an officer of the United States is held in custody by the process of a state court for an act done within the authority conferred upon him by the laws of the United States, the United States government may protect itself by procuring the release of such officer through its judicial department.</p> <p>(Syllabus by the Court.)</p>

On motion to strike from the files the second amended bill, and on demurrer and application for leave to file plea in abatement.

<p>Equity Pleading — Allowance op Several Pleas.</p> <p>By the general rule, a single plea only is pemiilted to a hill, and several should not be allowed unless they present well-defined issues, not interwoven with the alleged equities of the bill, and which can be determined separately, without regard to such equities, and without injustice to the complainant. -</p>

<p>1. Receivers — Intervention—Counsel Fees — Allowance prom Fund in Court.</p> <p>To .entitle an intervening creditor in pending litigation between the various parties having conflicting interests in the properties of insolvent railroad companies to an allowance of solicitor’s fees from the fund in court produced by the litigation, it must appear that the intervention resulted in benefit to such fund or to the other parties interested therein. There is no authority for making such an allowance .where the only questions raised by the intervener were such as must inevitably have arisen between the other parties, and in which the interests of the receiver, previously appointed and provided with counsel by the court, were identical with those of the intervener, and there is no evidence that either the receiver or his counsel were negligent in protecting his trust.</p> <p>2. Same. »</p> <p>The fact that an intervener, in behalf of himself and others, applies for and obtains the appointment of a co-receiver for property already in the custody of the court, affords no ground for the allowance to him of solicit- or’s fees from the fund resulting from the litigation.</p>

<p>Bill to Bestrain Work in a Mine.</p> <p>The following is the map referred to in opinion:</p> <p> </p>

<p>1. Preliminary Injunction — Grounds—Anticipating Enactment of Statute.</p> <p>A court of equity will not grant a preliminary injunction, on the application of a minority stockholder in a railroad company, to restrain the majority from consolidating the company with others, or from taking measures to that end, in anticipation of the passage of a law by a state legislature which will authorize such consolidation, where it is alleged and admitted that under existing laws it cannot legally be effected.</p> <p>2. Corporations — Sale of Property — Purchase by Director.</p> <p>The fact that the purchaser of property from a corporation is also a stockholder and director of the corporation does not render the transaction void, although it may cast upon him the burden of sustaining it by showing that the sale was proper, fair, made in good faith, and for an adequate consideration.</p> <p>8. Same — Suit by Minority Stockholders — Preliminary Injunction.</p> <p>On an application by a minority stockholder for a preliminary injunction, restraining certain action by the majority pending the litigation, the rights and interests of all the stockholders must be taken into consideration; and where it appears that complainant owns less than one-fifth the stock, and that the contemplated action is approved by virtually all the other stockholders, to warrant the granting of the injunction it must clearly appear to be necessary to the protection of complainant’s rights, and that its issuance will not result in greater injury to the rights of the majority than its refusal will to his own.</p>

<p>.PKET.linvAKY Injunction — Grounds—Invalidity oi? Statute.</p> <p>A court will not grant a preliminary injunction on the ground of the invalidity of a statute, where the question is one of the important issues to be determined when the case is heard upon the merits, and where it appears that full and complete relief can be afforded complainant by the final decree.</p>

<p>Federal Courts — Pendency of Suit isr State Court — Stay of Proceedings.</p> <p>The pendency of a suit in a state court, where that court has not taken possession or control of any property for the purposes of such suit, is not a bar to the prosecution of a suit in a federal court in-voMng the same subject-matter, and affords no giound upon which the latter court can rightfully order a stay of proceedings to favor those in the other jurisdiction.1</p>

<p>1. New Triad — Verdict—Sufficiency of Evidence.</p> <p>Where the evidence is conflicting, it is the duty of the court on a motion for a new trial to weigh the facts, and set aside the verdict if it is against the weight of the evidence.</p> <p>2. Boundaries — Conflicting Calls — Relative Importance.</p> <p>In locating boundaries, resort will be had first to natural boundaries, next to artificial marks, then to adjacent boundaries, and last to courses and distances; but, if it appear that a mistake has been made, an inferior means of location will control a higher one.</p> <p>8. Same — Location of Corners.</p> <p>A boundary was described as running down a stream to certain trees at its ,mouth, but the mouth of the stream was not called for as a corner. The line, run according to the calls for courses and distances, did not follow the stream, but ran to trees marked to correspond with the calls. Held that, in determining the location of the corner, the call for the mouth of the stream should be disregarded.</p> <p>4. Same — Location of Ltnes.</p> <p>If the call for a line to follow a stream does not call for its meanders, and the call for the stream conflicts with the call by courses and distances, the call for the magnetic line will control.</p> <p>5. Same — Marked Objects — Description.</p> <p>Marked trees which indicate the fixed boundaries of land held by coterminous owners will not be departed from, though such boundaries, in their descriptive character, do not agree with the marked objects called for in the survey.</p> <p>6. Same — Location of Corner — Conflicting Calls.</p> <p>A survey described the fifth line as running down a stream, thereby fixing the end of the fourth line at its intersection with the stream, and greatly reducing the length of the fourth line as described by course and distance. The survey also called for the fourth line to terminate at marked objects, "which were found at a point.closely corresponding with the course and distance calls. Helé that, in fixing the comer at the end of the fourth line, the calls for the stream should be disregarded.</p> <p>7. Same — Sufficiency of Evidencf..</p> <p>An ancient survey described the fifth line by course and distance, and also called for it to follow a stream to its mouth, to a corner indicated by marked trees. To follow the stream, the line would be shorter than the call for distance, at right angles with the described course, and the tract would include but one-half the amount of land described. By running the lines by courses and distance, disregarding the calls for the stream, it would correspond with a plat of the ancient survey, and include the amount of land described. Marked trees were found one-eighth of a mile from the mouth of the stream, but there was no evidence that they were marked for the ancient survey, or were not marks on some other survey. Trees properly marked were found near the corner as indicated by the course and distance calls, and the sixth line running from these trees was found marked for some distance. Prom the plat of the ancient survey, it was apparent, that the surveyor was mistaken as to location and course of the stream. Held, that the corner on the line as described by course and distance, and not the corner on the stream, was the true corner.</p> <p>8. Same — Adjoining Survey — Priority of Survey.</p> <p>If the lines of an elder survey can be established by its lines and corners, and the lines and corners conflict with an adjoining survey, the lines of the adjoining survey must give way to the lines of the elder survey.</p> <p>9. Samk — Acquiescence in Boundary.</p> <p>If an owner, who is ignorant of the true boundaries of his land, by mistake acquiesces in a line as a boundary, he and his grantees are not thereby precluded from afterwards claiming to the true boundary.</p>

<p>Costs — Copy of Testimony for Use on Appeal.</p> <p>A copy of testimony taken on the trial of an action at law by a stenographer under a stipulation, which is obtained by a party for the purpose of preparing a bill of exceptions, is not “obtained for use on the trial,” within Rev. St. § 983, and the expense of such copy is not taxable as costs.</p>

<p>1. Triad — Questions for Jury.</p> <p>To authorize the submission oí an issue oí fact to the jury, there must be substantial evidence in support o£ the contention of the party having the burden of proof on such issue.</p> <p>3. Bridges — Contract for Construction — Error in Location.</p> <p>Under a contract by which p’aintiff undertook to construct a bridge, complete, in accordance with certain plans and specifications, upon a public highway, and across a river which separated two townships, — the bridge to lie paid for by the townships and a street-railroad company, in desig-na fed proportions, — it became the duty of the townships, having control of the highway, to designate the location for such bridge; and where, in doing so, their agent undertook to fix the location for the abutments, the plaintiff was entitled to recover from each of the other parties its pro rata share of the cost of extra work made necessary by reason of an error in such locations.</p> <p>8. Contracts — Construction.</p> <p>Where two townships and a street-railway company entered into a contract with each other by which they agreed to share in the cost of building a bridge on a highway', to be used jointly by the public and the railroad company, and to be built under the superintendence of an engineer to be jointly employed, and, in accordance with such agreement, they contracted with a fourth party to build such bridge, the two contracts are to be construed together; and although the latter contract is severally executed, each agreeing to pay a stipulated portion of the contract price, the. enterprise is, in effect, joint, and a delay in the completion of the bridge beyond the time fixed by the contract, caused by directions of the engineer employed, or by the authorities of the townships haying control of the highway, cannot be made the basis of a claim for damages by the railroad company against the contractor.</p> <p>4. Same — Provision against Extra Work.</p> <p>A provision, in a contract for the building of a bridge in accordance with certain plans and specifications, that no extra labor or material shall be used or changes made in the plans, and no charge for extra work or materials shall be made, unless agreed to in writing, does not deprive the contractor of the right to recover for additional work or material furnished outside of the contract at the request of the other party, although not agreed upon in writing, or for extra labor or materials made necessary by an error on the part of the representative of such other party in locating the bridge, for which the contractor was not responsible.</p>

<p>Tn Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p>

<p>This was a suit in equity tor the cancellation of a mortgage, or, if held valid, for the enforcement of the right of redemption and to an accounting from defendants as mortgagees in possession.</p>

<p>Bills of Exception — Amendment.</p> <p>A circuit court of appeals will not make an order either allowing an amendment of a bill of exceptions in that court, or authorizing its amendment in the court below, to supply matters omit led from the original bill.</p>

. The defendant in error, Dr. W. J. Darby, while in Coahoma county, Miss., "on other business, ascertained that the plaintiffs in error, Dr. R. R. James and R. P. McGregor, who were defendants in the court below, owned a certain tract of land in that county containing 520 acres, known as the “Crudup Tract,” and that it was for sale. He thereupon went to Cottonplant, Ark., where the plaintiffs in error resided, to negotiate the purchase of the land.

<p>1. Cakrteks — Boaud of Transportation.-Maximum Rate Law.</p> <p>The act o£ the Nebraska legislature adopted in 1887, creating a board of transportation, and vesting such board with certain powers, was not repealed by the act of 1893 known as the “Maximum Rate Law.”</p> <p>2. Same — Injunction.</p> <p>The injunction granted in this case by the supreme court was based upon the finding that the maximum rates prescribed by the act of 1893, when considered as an entirety, would not yield to the carrier a reasonable compensation.</p> <p>3. Same.</p> <p>The injunction did not restrain the board of transportation from inquiring into and fixing a reasonable rate for specific or particular articles.</p> <p>4. Same.</p> <p>It is not necessary for the board of transportation to apply for a modification of the injunction to enable them to perform acts which were not included in the restraining order.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal — Review—Ruling Excluding Testimony.</p> <p>A witness for defendant was recalled a.t request of plaintiff, and asked if, at a time and place stated, lie had not. in a conversation witli a Jioreon named, made a certain statement. He admitted the conversation, but denied. having made such statement, or any statement to that effect. Defendant on redirect examination asked him to state the conversation, and what he said, to which question the court sustained an objection on the ground of immateriality. Plaintiff afterwards introduced as a witness the other party to the conversation, who testified that the witness made the statement attributed to him. Defendant did not again recall the witness, or make any oiler showing what his answer to the excluded question would have been. Ueli, that the ruling did not constitute reversible error.</p> <p>2. Same — Harmless Error. c</p> <p>A ruling excluding the answer of a witness, even if erroneous, is without prejudice, where the witness in his previous testimony has stated substantially the same tiling’.</p> <p>8. Trial — Instructions—Sufficiency of Evidence.</p> <p>A charge that plaintiff is entitled to a verdict, if the jury are “reasonably satisfied from all the evidence that the allegations of the complaint are true,” is not erroneous because it fails to state that the jury must be satisfied from a “fair preponderance” of the evidence.</p> <p>4. Appeal -Review — Effect of State Statutes.</p> <p>The rule of the federal courts that a ruling on a motion for new trial is not review-able on a writ of error is not affected by a state statute allowing appeals from such rulings.</p> <p>5. Same — Harmless Error.</p> <p>The admission of immaterial or irrelevant evidence is not a sufficient ground for reversing a judgment, where it appears not to have affected the verdict injuriously to the plaintiff in error.</p>

<p>1. Negligence — Assumption of Risk.</p> <p>One going voluntarily, in the prosecution of his own business, on premises where blasting is being done by contractors, knowing that blasting is going on, assumes the risks incident to the prosecution of the work with ordinary care, though he is there by the sufferance or permission of the contractors.1</p> <p>2. Same — Contributory 'Negligence.</p> <p>Plaintiff went as a passenger on a boat lying at a wharf at a distance of from 150 to 300 feet from a point where blasting was being done by defendants, knowing that such work was going on. Soon after he went to sleep on the boat, and in that condition was struck by a rock thrown by one of the blasts, which broke through the upper deck of the boat. Held, that the question of his contributory negligence was properly submitted to the jury.</p> <p>3. Same — Defense. .</p> <p>A passenger* on the boat of a navigation company, lying at a wharf on premises in possession of defendant contractors, engaged in blasting, is not prevented from recovering for injuries caused by the negligent prosecution of such work by an agreement between the latter and the navigation company that the company should use the wharf at its own peril.</p>

<p>1. Master and Servant — Negligence ok Fellow Seevant — Abrogation op Common-Law Rule.</p> <p>Const. Bliss. § 198 (Ann. Code Miss. 1892, § 3559), providing that every employe of a railroad corporation shall have the same rights and remedies for an injury caused by the act or omission of the corporation or its employe's as are allowed by law to others not employes, where the injury results from the negligence of a superior agent or officer, or of a person having The right to control or direct the services of the party injured, does not abrogate the common-law rule as to the liability of the master for the negligence of a fellow servant, but merely modifies the rule when the injury results from ¡he negligence of a “superior agent or officer,” or of “a person having the. right to control or direct the services of the party injured.”</p> <p>3. Same — Superior Officer or Agent.</p> <p>Plaintiff, who was one of a sw'tohing crew of defendant railroad company, whose business it was to distribute cars oil the various tracks in the yard, to make up the trains, was injured by the negligence of a member of the crew whom the yard master had appointed foreman for the night of the accident, and to whom lie gave the switch list. It appeared that such foreman merely called out the track on which a car was to be switched, as fixed by usage or by the switch list, ami had no authority to command the switchmen to pursue any particular line of action, and that, he was of the same rank in the service as the others of the crew, and neither employed nor had power to discharge them. Held, that such foreman was not a “superior agent, or officer,” or a “person having the right to control or diiect” plaintiff, within Const. Bliss. § 193 (Ann. Code Bliss. 1892, § 3559), so as to render defendant liable for plaintiff:’s injuries.</p>

<p>Removax, op Causes — Joinder op Dependants.</p> <p>Defendant railroad company is entitled to removal of the cause to t]ie federal court, on the ground of. fraud on the jurisdiction of the court, though an individual, a citizen of the same state as plaintiff, is joined as-a defendant; it being avowed by plaintiff’s counsel that one of the objects in suing defendants jointly was to prevent a removal; the action being for death of a fireman on the engine of a freight train of the railroad, occasioned by his being struck, while looking out of the cab window, by the arm of a crane, swung into position for delivery of mail to a train, which was following, while moving; the crane being operated by no agent of the railroad, but by the individual defendant, the postmaster at the place of the accident; the railroad having no sort of joint agency in the doing of any act directly or proximately bringing about the accident; and the only plausible claim that the railroad can be made liable being that nine months before the accident engines seven inches wider than formerly used were put in operation, without the crane being moved further from the track.</p>

<p>1. Husband and Wife — Liability for Family Expenses — Illinois Statute.</p> <p>Under Rev. St. Ill. c. 08, § 15, providing that the expenses of the family shall be chargeable upon the property of both husband and wife, or either of them, and that in relation thereto they may be sued jointly or separately, as construed by the courts of the slate, a wife is jointly and severally liable for the rent of a house used as a family residence, although the lease therefor is executed by the husband alone.</p> <p>2. Same — Form of Action.</p> <p>An action in assumpsit, based upon such statute, will lie against the husband and wife jointly, and any evidence which would bind one for a family expense will bind ihe other, except that neither could, by a new promise, arrest the running of limitation as against the other, or remove the bar of the statute after it was complete.</p> <p>3. Interest — Joint Action for Rent.</p> <p>Interest is not recoverable in a joint action against the husband and wife for rent under the Illinois statute (Rev. St. c. 74, § 2) permitting the allowance of interest on money withheld by an unreasonable and vexatious delay of payment where no demand for payment was ever made on the wife until shortly before the bringing- of suit, or notice given her that she was looked to for payment.</p>

es for the Southern District of Illinois. This was an action by Patrick Kano against the receiver of the Toledo, St. Louis & Kansas City Railroad Company to recover damages for a personal injury received while in the einjfloy of the receiver as a switchman in the railroad yards of the company at Madison, Ill.

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Acts op Bankruptcy — Voluntary Application by Corporation for Dissolution.</p> <p>Whether the act of an insolvent corporation in voluntarily applying to a state court for a decree dissolving the corporation and winding up its affairs, pursuant to the state law, through the agency of a receiver, is a transfer of its property “with intent to hinder, delay, and defraud its •creditors,” and therefore an act of bankruptcy, within the meaning of' Bankr. Act 1898, § 3a, cl. 1, because operating to deprive creditors of the remedies provided by the bankruptcy law, including the administration of the estate in a court of bankruptcy, quaere.</p> <p>2. Same.</p> <p>An insolvent corporation applied to a state court for a decree for its dissolution and the settlement of its affairs, and thereupon a receiver was appointed, who took charge of its assets and entered upon the discharge of his duties. Ninety per cent, of the creditors, representing more than $3,000,000, approved the proceedings as the best possible course for the benefit of the creditors. The interests involved were very large, and the administration of the property required exceptional care and competency. No actual fraud was shown. On a petition in involuntary bankruptcy against the corporation, filed by other creditors, lipid, in view of the circumstances, and of the doubt whether the act of the corporation constituted an act of bankruptcy, that no adjudication of bankruptcy should be made.</p>

<p>1. Bankruptcy — Collection of Taxes — Payment by Trustee.</p> <p>The provision of the bankruptcy act, that the trustee shall “pay all taxes legally clue 'and owing by the bankrupt” (section 64a) intends that, while the estate is in the hands of the trustee, his custody of it shall not operate as a bar to the collection of taxes- which would be collectible under the law if the property had remained in the possession and control of the bankrupt himself.</p> <p>2. Same — Sale of Property-Taxes Assessed to Purchaser.</p> <p>Where, after the sale of a stock of merchandise by a trustee in bankruptcy, taxes thereon for the current year were assessed to the purchaser, who resisted payment on the ground that the goods did not become his property until after the beginning of the fiscal year, hgld, that the trustee •would not be ordered, on petition of the purchaser, to pay the taxes so assessed, but he would be directed to have the property assessed at its fair valuation in his name as trustee, and to pay the tax legally chargeable on such assessment.</p>

<p>1. Bankruptcy — Provable Debts — .Bent to Accrue.</p> <p>A contract hy which the one party agrees to pay to the other a fixed sum per month as rent for a building occupied hy the former, to continue during his lifetime, is terminated hy the adjudication of the lessee as a bankrupt; and the lessor has no provable claim against the bankrupt’s, estate for the rent which would have accrued under the contract, after-the date of the adjudication.</p> <p>2. Same — Occupation of Premises by Trustee.</p> <p>A trustee in bankruptcy may continue to occupy and use, for the benefit of the estate, premises which the bankrupt held under a lease at the time of his adjudication in bankruptcy,_ and the landlord will be entitled to compensation for such use of the premises by the trustee; the amount thereof being chargeable as part of the expenses of administering the estate.</p> <p>8. Same — Proof of Debts — Limitation of Time.</p> <p>Bankr. Act 1898, § 57n, providing that claims against a bankrupt’s estate, except such as are liquidated by litigation, “shall not be proved subsequent to one year after the adjudication,” is an absolute prohibition against the proof and allowance of such claims when presented after the-expiration of the year.</p> <p>4. Same — Provable Debts — Annuity.</p> <p>Where the bankrupt, in consideration of the conveyance to him of certain real estate and the settlement of certain claims, had executed a bond conditioned to pay to the grantor the sum of $25 per month during the-latter’s life, held, that the creditor might prove a claim against the bankrupt’s estate for any sum in arrear at the date of filing the iietition in bankruptcy, but not for the aggregate of payments thereafter to accrue,, as estimated on the basis of her expectation of life, since such future payments do not constitute a “fixed liability absolutely owing at the time of the filing- of the petition,” within the meaning of Bankr. Act 1898, § 63a, cl. 1.</p>

<p>1. Bankruptcy — Exemptions—Partnership Assets.</p> <p>In North Carolina, in case of the bankruptcy of a partnership, where there are firm assets, hut no individual estate, each partner is entitled to receive, out of the partnership assets, the exemption allowed by the law of the state, provided the other partner or partners consent thereto.</p> <p>2. Same — Who Subject to Bankruptcy Law — Infant.</p> <p>An infant cannot be adjudged bankrupt in either voluntary or involuntary proceedings. If a member of a partnership, he cannot join in a voluntary petition by the firm, nor be included in an adjudication made thereon.</p> <p>3. Same — Partnership—Infant Partner.</p> <p>Upon a voluntary petition in bankruptcy presented by the adult member of a firm, the partnership, as well as the petitioning partner, may be adjudged bankrupt, and the partnership property, as well as the separate estate of the adult partner, may he administered in the bankruptcy proceedings, although no adjudication can be made against the infant partner.</p> <p>4. Same.</p> <p>Bankr. Act 1S98, § 5, subd. h, providing that, “in the event of one or more hut not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudged bankrupt,” does not apply to, a case where the infancy of one of the partners was the reason for excepting him from the adjudication.</p> <p>5. Same — Dissolution o» Liens — Proceeds or Execution Sale. ,</p> <p>Where judgment is recovered against a firm composed of an adult, and a minor, and,the property of the firm is sold on execution thereunder, and within four months thereafter the partnership is adjudged bankrupt on the voluntary petition of the adult member, the trustee in bankruptcy is entitled to the entire proceeds of the execution sale remaining in the sheriff's hands, less costs of sale, after setting off the amount allowed to the partners as exempt under the laws of the state.</p>

<p>1. Bankruptcy — Powers op Court — Correction op Errors.</p> <p>A court of bankruptcy having no regular terms, and being always open, its adjudications, orders, and decrees remain at all times subject to correction when discovered to be erroneous.</p> <p>2. Same — Adjudication—Partnership.</p> <p>Upon a petition in involuntary bankruptcy against one person as an individual, no adjudication can be made against other persons who were, in partnership with him,' even though the latter voluntarily c-ome in and consent to be adjudged bankrupt. If such persons desire to take the benefit of the act, they must file their individual petitions, deposit the fees required, a.nd proceed strictly according to law.</p> <p>8. Same — Application nor Discharge — Proceedings.</p> <p>In a proceeding in involuntary bankruptcy, where the referee, filed a petition of the bankrupt for discharge, a defective certificate of conformity, and a, recommendation tliat, the discharge he granted, hut there was no record of any proceedings before the referee, nor any evidence of notices to creditors, except a statement in the defective eertilieate that the notice was published and mailed, and no evidence of any meeting of creditors after 1 lie filing of such petition, but a statement that no objection was made to the discharge, “no creditor being present,” held, that the application for discharge should be referred back to the referee, with directions to proceed according to the statute.</p> <p>4. Same — Form or Petitions — Rums of Court.</p> <p>By rule of court in this district, petitions in bankruptcy will not be placed on file nor considered unless made out on the prescribed printed forms; Written or typewritten petitions and schedules will be returned' to the parties without action.</p>

<p>•BANKRUPTCY — ACTS OF BANKRUPTCY — TlMF, OF PlLTN® PETITION.</p> <p>Wliere an insolvent corporation sold its real estate, and used the proceeds in paying some o£ its creditors to the exclusion of others, and a petition in involuntary bankruptcy against, it, alleging the transaction as-an act of bankruptcy, — not on the theory of its being a conveyance of property with intent to delay and defraud creditors, but on the ground that the payments out of the price received were a transfer of property with intent to prefer certain creditors, — was filed more than four months after' such payments were made, though within four months after the recording of the deed, heU, that the petition was too late, and must be dismissed.</p>

<p>On Original Petition for Review of an Order of tbe District Court of tbe United States for tbe Western District of Wisconsin, in Bankruptcy.</p> <p>The bankrupts were co-partners in trade at Madison, in the Western district of Wisconsin. On the 4th day of May, 1899, they, as such co-partners, filed their voluntary petition in the district court of that district, sitting in bankruptcy, and were on that day duly adjudicated bankrupts. The schedule or inventory of the co-partnership estate had subjoined to it this statement: “But out of the above property each of partners selects his exemption under statutes of the state of Wisconsin;” and the schedule containing this reservation was signed by each of the co-partners. Neither of them had individual estate. On the 17th of May, 1899, the creditors duly selectéd a trustee of the estate, which selection was confirmed by the court, and the trustee qualified upon the following day and took possession of the estate. Thereupon the bankrupts applied to the court for an order directing the trustee to permit each of them to select from the stock in trade goods to the value of $200 as property exempt by virtue of the laws of Wisconsin. The’ court below on the 9th day of June, 1899, granted the application, and directed the trustee to set apart the exemptions. The trustee, by an original petition in this court, seeks a review of the question of law involved.</p>

<p>1. Customs Duties — Construction of. Statutes.</p> <p>Tariff laws are addressed to the understanding of merchants, and as a general rule the descriptive language in such laws is to be taken in a commercial sense.</p> <p>2. Same — Classification—Engravers’ Tools.'</p> <p>Steel rods, 1% of an inch in length and Vio of an inch in diameter, tipped with diamond chips, and used in an engraving machine, arc dutiable under paragraph 193 of the tariff act of 1897 (80 Stat. 107), as articles not specially provided for, composed wholly or in part of steel, and not under paragraph 484 (Id. 151), relating to jewelry and precious stones, as “precious stones set.”</p>

<p>This was a petition by the United States for the review of the decision of the board of general appraisers fixing the classification for duty of certain imported merchandise.</p>

<p>Intern at. Revenue — Stamp Taxes — “Calls.”</p> <p>A “call” memorandum or writing, executed for a valuable consideration, giving the bearer the right to call upon the subscriber for certain shares of stock therein named, within a stated time and at a given price, is not an “agreement to sell” such stock, within the meaning of section 25 of the war revenue act of 1898, and is not subject to the stamp tax imposed on such agreements by that section. Such instrument, which merely gives an option, requires a further agreement to effect a sale, which agreement, or the sale when so effected, is clearly subject to the tax, and the statute contains no language indicating an intention to require the payment of the tax twice on a single sale.</p>

it. S. Cox, the plaintiff in error, was at the March term, 1895, of the district court of Logan county, Old. T., Indicted for the crime of perjury, and at its February term, 1896, tried, convicted, and sentenced to imprisonment in the United Stales penitentiary at Leavenworth, Kan., for a -term of four years, and to pay a fine of one dollar.

Hearing upon petition of Albert J. Kiehter for a writ of habeas corpus, and upon an application by the United States for a warrant for the removal of said llichter to the district of Alaska for trial upon a criminal charge.

<p>Patents — Suit for Infringement — Preliminary Injunction.</p> <p>A complainant, in a suit for infringement of a process patent, is entitled to ’a preliminary injunction against the sale by -defendant of articles made by unknown'infringers, where it fairly appears by the showing made that their manufacture is in fact being caused by defendant.</p>

<p>Suits in Equity for Infringement of a Patent.</p>

<p>Suit in Equity for Infringement of a Patent</p>

<p>In Admiralty. Marine insurance. Stranding. Valued policies.</p>

<p>1. Sheriffs — Wrongful Levy — Dismantling Ship.</p> <p>A schooner injured in a storm during a voyage unloaded her cargo, and went into a shipyard for repairs, and while there was further injured by another storm, which drove her on the shore in the yards. While soi lying, defendant, as sheriff, entered upon her, cut off her spars, tore down her rigging, and removed the same, together with her furniture, for the purpose of levying a writ of attachment upon the parts so removed. Reid that, so long as the ship remained in a condition to be repaired, she was an entirety, consisting of her hull, tackle, apparel, and furniture, and the acts of the defendant in dismantling her constituted an unjustifiable trespass.</p> <p>2. Same — Action for Trespass.</p> <p>In an áction to recover damages for such trespass, where there was evidence tending to show that the ship could have been repaired at a reasonable cost, such question was one for the jury. ,</p>

<p>Collision — Security to Answer to Cross Libel — Suit by Master.</p> <p>The fact that suit to recover damages for the sinking of a vessel by collision is instituted by the master, instead of the owners, does not withdraw the case from the application of the fifty-third admiralty rule, requiring the giving of security by the libelant to respond in damages as claimed in a cross libel; nor should the court be influenced, in requiring such security, by the fact that the libelant is individually unable to furnish it.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p>

<p>Special Master — Motion for Dismissal — Evidence Considered.</p> <p>On a hearing before a special master, certain officers of the defendant company, who were also defendants, were allowed by the master to take away its books, on an agreement to return them before a date to which the hearing was adjourned. On such date the books had not been returned, and, at the request of counsel for plaintiff, the master made a certificate showing the conduct of defendants in obtaining the books under false promises, and in failing to return them. Within two or three days the books were returned, the hearing proceeded, and a month later the master made a report. Pie had filed such certificate, with a partial report, which he subsequently withdrew, but incorporated the certificate in his final report. Although the statement in such certificate, as to the failure of defendants to return the books, was true when the certificate was made, it was not true when read as of the date when the report was filed, but it was shown that there was no intentional attempt to mislead the court in that respect, and that it was advised of the facts before it passed upon the report. Hold, that such facts did not establish bad faith or malice on the part of the master, which afforded ground for his removal, on a motion pot made until eight years thereafter.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the District of Washington.</p>

<p>Equity Jurisdiction — Enforcement of Trust.</p> <p>Pursuant to a decree confirming a claim made under a Mexican grant in proceedings instituted in 1852, certain lands within the city of San Francisco were patented to the city, “in trust for the benefit of the lot holders under grants from the pueblo, town, or city of San Francisco, or other competent authority, and as to any residue in trust for the use and benefit of the inhabitants of the city.” Heidi, that the benefit of such trust did not extend to one whose claim to be a lot holder was based on possession taken in 1850, and extending to 1895, such claim not being under, but adverse, to, the pueblo and its successors, and that a bill asserting such claim, and seeking to recover the property from the city and county of San Francisco, which had taken possession thereof for public purposes, presented no ground for equitable cognizance. '</p>

<p>Trade-Names — Unfair Competition — “Sorosis” Shoes.</p> <p>Complainants adopted the name “Sorosis” as a trade-mark for a shoe for women manufactured by them of superior workmanship and a characteristic appearance. After the shoe by that name had become known and popular, defendants, who were shoe manufacturers of the same city, began the use of the name “Sartoris,” afterwards changed to “Sartoria” and “Satoria,” to designate a woman’s shoe of their make, very similar in appearance, but inferior in quality, to complainants’ “Sorosis” shoes. Held, that such action constituted unfair competition, the similarity in names and in appearance together rendering' it probable that retail dealers would deceive purchasers into buying defendants’ shoes for those of complainants.</p>

<p>In Equity. Hearing .on plea of defendant Ilillis.</p> <p>The bill set up a contract between the complainant and the defendant Hillis, whereby the latter undertook to organize a corporation which should take over certain rolling-mill property at Muskegon. Micli., which had been purchased in their joint interest, and operate it, together with a tin-plate manufacturing business, which it was purposed to add. It alleged that (he complainant was skilled in the business which the corporation was expected to carry on, and that it was agreed that he should exert himself in making preparations for the work, and (hat he should become the manager and a director. It was also alleged that, 1‘or wliat these parties put into the corporation, $150,000 of its capital stock was to be issued to them jointly, charged with such expenses as should be incurred l)y each of them in carrying out the agreement. The hill then charged that Ilillis had procured the organization of the proposed corporation, had (ransferred to it the rolling-mill property (the'title to which stood in his name), and had taken the $150,000 of slock in his own name, denying any right, of the complainant therein, and that the corporation, the Champion Iron & Steel Company, which is also made a defendant, was about to issue certificates to Hillis for that amount of stock, in violation of the rights of the complainant, of which it had notice. The bill prayed for an injunction and account. To this bill Hillis interposed a plea that, prior to the commencement of the present suit, this complainant brought a suit in equity in the circuit court for the comity of Cook, Ill., founded upon the same transaction, in which he alleged a similar contract, the difference being' that it was there alleged that Hillis agreed to cause to be delivered to the complainant one-half of the $150,000 of stock, fully paid and nonassessable, and that he would subscribe the complainant’s name in the subscription book of the company for $75,000 of the stock at the time of its organization. The plea further averred that Ilillis appeared and answered, denying the contract set up in the bill, that the parties produced proof, and that such proceedings were thereupon had that a decree was entered dismissing the hill, upon a special finding that the contract therein alleged had no existence. This decree was pleaded as a bar to the present bill. To this plea the complainant, filed replication, and the proof on the issue was the record of the Illinois suit.</p>

<p>Patents— Suit rob, Infringement — Preliminary Injunction.</p> <p>Where the validity of a patent has not, been expressly adjudicated, and the question of infringement is a close one, a preliminary injunction will not be granted.</p>

<p>On Motion to Remand to State Court.</p>

<p>1. PLEADING — JOINDER OF CAUSES OF ACTION.</p> <p>A cause of action against a railroad company to recover damages on account of the defendant’s negligence in the construction and maintenance of cattle yards at a shipping station, by reason of which certain cattle of plaintiff, placed in the yards while awaiting shipment, escaped, and were lost and injured, may properly be joined with a separate count, to recover for the negligent hilling of some of the same cattle by an engine on defendant’s road.</p> <p>2. Evidence — Transaction with Agent Since Deceased.</p> <p>There is no statute or rule of law in force in the Indian Territory which makes a party to a contract or transaction incompetent to testify to it because the agent of the other party, with whom the contract was made or the transaction had, is dead.</p> <p>3. Carriers of Live Stock — Defective Yards — Measure of Liability.</p> <p>A railroad company which constructs yards by the side of its track to facilitate the loading and unloading of stock is not responsible as a common carrier for stock placed m such yards by the owner to await shipment, but is bound only to the exercise of ordinary care in the construction and maintenance of its yards.</p> <p>4. Negligence — Actions—Questions for Jury.</p> <p>What was the proximate cause of an injury is ordinarily a question for the jury, and when it has been determined by them their finding is conclusive, unless it can be'said that all reasonable men must draw a different conclusion from the facts of the case.</p> <p>Caldwell, Circuit, Judge, dissenting.</p>

<p>1. Pleading — Formal Objections — Waiver.</p> <p>A technical objection to a petition, where the defect, if any, is merely formal, and could have been cured by amendment, cannot be considered when not made until after verdict.</p> <p>2. Trial — Direction of Verdict.</p> <p>At the close of the evidence there is always a preliminary question for the judge before the case can properly be submitted to the jury, and that is, not whether or not there is any evidence, but whether or not there is any substantial evidence, upon which the jury can properly render a verdict in favor of the party who produces it. If there is no such evidence, it is the duty of the court to direct the jury to return a verdict against him.</p> <p>3. Appeal — Review—Questions not Presented to Trial Court.</p> <p>A question not mentioned in the specification of errors in the original brief of a plaintiff in error, as required by the rules, and which was not presented to the trial court, will not be considered by the circuit court of appeals, which in an action at law is a court for the correction of errors • only.</p>

<p>1. Trial — Direction of Verdict.</p> <p>Before the submission of a case to the jury in a federal court, there is always the preliminary question for the judge, and that question is, not whether there is no evidence, but whether Hiero is any substantial evidence, upon which the jury can properly render a verdict in favor of the party who produces it; and, if there is no such evidence, it is the duty of the court to direct a verdict against him.</p> <p>S. Contracts — Validity—Wagering Agreements.</p> <p>Contracts for íhe fuiure delivery of a marketable commodity are not per se void or voidable, bui are presumptively valid; and to render such a contract illegal, as a wagering contract, it must be shown that there was a mutual intention that the goods should not be delivered, but that (ho contract should be solved by the payment of the difference between the contract price and tbe market price at the time fixed for delivery.</p> <p>3. Same.</p> <p>The fact that one or ho til of the parties to such a contract intended to sell the contract, or Ills rights thereunder, before the iime fixed for delivery, does not affect its validity.</p> <p>4 Same — Note Given for Dosses — Defenses.</p> <p>Defendants executed a note to brokers through whom, as their agents, they had made a contract for the purchase of cotton for future delivery, for the amount of the loss paid for them by such brokers on the contract, which had been sold before the time for delivery arrived. The contract was valid, and the seller intended to, and did, deliver the cotton thereon at the time agreed. f/eM, that to render the note invalid, as having-arisen out of a gambling contract, defendants had the burden of showing that they did not intend to receive the cotton under the contract, but that it should be discharged by payment of the difference between the contract and market price at time of delivery, and also that the brokers knew such fact.</p>

<p>1. Master and Servant — Fellow Servants.</p> <p>In a woolen mill employing from 200 to 300 persons, all of whom were under a superintendent, a machinist, whose duty it was to make general repairs on the machinery and changes, when directed by the superintendent, who also had authority over the firemen, an assistant machinist, and helpers, all of whom he employed, but whose principal duties required him to work with his hands, was a fellow servant with another employe, whom he called to assist him in repairing a machine, and for his negligence, resulting in an injury to such other servant in the performance of the work, the master cannot be held liable.1</p> <p>2. Same — Voluntary Service.</p> <p>Whether, in rendering the assistance required, the seryant injured was acting within the scope of his employment or not is immaterial, so far as relates to the duty and obligations of the employer, which were the same towards a volunteer as towards a servant acting within his employment.</p>

<p>1. Master and Servant — Fellow Servant — Incompetency—Negligence.</p> <p>In an action by an employe against a master for injuries alleged to have been caused by the ineompetency and negligence of a eo-employ6, it is not erroneous for the court to make a distinction between incompetency and negligence, and to submit to the jury only the question of negligence, where the evidence was entirely directed to the manner in which such co-employé performed his work, and the knowledge of plaintiff and defendant in respect thereto.</p> <p>2. Same — Special Rules.</p> <p>A sawmill owner cannot be charged with negligence for failing to direct one employed as sawyer by special rules to observe care towards an off-bearer engaged in certain work with him, and injured by his negligence, where the work was not complex, and there was no evidence that it was customary in sawmills to direct employés by special rules.</p> <p>8. Same — Presumptions.</p> <p>It is the master’s duty to employ careful servants, and one accepting employment may assume that such duty has been performed in the selection of his fellow servants.</p>

<p>Aliens — Excnusiox-—Decision oe Comuectob — Review by Courts.</p> <p>Under the act of August 18, 1894 (28 Stat. 390), providing that, where an alien is excluded from the United States under any law or treaty, the decision of the appropriate customs or immigration officer, if adverse to his admission, shall be final, unless reversed on appeal to the secretary of the treasury, the circuit court has no jurisdiction of habeas corpus proceedings brought by an alien excluded by the collector of the port to determine his right, to land, since the collector’s determination is not reviewable by the courts, but only on appeal to the secretary of the treasury. 1</p>

<p>INSURANCE — Policy—Breach of Condition — Knowledge op Solicitor — Es-toppel op Insurer.</p> <p>Where an insurance solicitor obtains an application for insurance, which is accepted by an Insurance company, and on which it writes a policy, and delivers it to the solicitor, who delivers it to the insured, and collects the premium, the solicitor’s knowledge of concurrent insurance on the property in excess oí 1he amount allowed by the policy may be imputed to the company so as to estop it to- deny the validity of the policy by reason of the breach of such condition.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the District of Washington.</p>

<p>1. Proceedings for Deportation of Chinese — Appeal—Waiver of Irregularities.</p> <p>Where a Chinese person, arrested under section 13 of the exclusion act of September 13, 1888, was ordered deported' by a commissioner, and appealed to the district court, where the case was tried de novo, and he was discharged, the government cannot for the first time on a writ of error in the circuit court of appeals raise the objection that the record filed on appeal was insufficient to give the district court jurisdiction.</p> <p>2. Same — Evidence of Nativity — Measure of Proof Required.</p> <p>The requirement that the mercantile character of a Chinese person prior to his departure for China must be established by two witnesses on his application for re-entry is special, and does not apply to other issues, such as the American nativity of the Chinaman, which are to be determined by the ordinary rules of evidence. 1</p>

<p>1. Principal and Surety — Bond of Contractors for Public Work — Liability of Sureties.</p> <p>The liability of sureties on the bond of a contractor for government work, conditioned, as required by act of August 13, 1894 (28 Stat. 278), to persons who supplied labor or materials in the prosecution of the work, is not affected by the amount which may have been expended by them in completing the contract of the principal after the government had taken it out of his hands.</p> <p>2. Same — Assignability of Cause of Action.</p> <p>The right of laborers and material men to enforce the obligation of the sureties on the bond of a contractor for government work, conditioned, as required by 28 Stat. 278, c. 280, is assignable, and passes by an assignment of their claims.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the District of Washington.</p>

This writ of error is brought to review the decision of the circuit court in rendering judgment for the defendant in error upon the pleadings filed in an action at law to recover upon four several policies of life insurance. The complaint alleged: That the Mutual Life Insurance Company of New York, the defendant in. the action, is a corporation organized under the laws of the state of New York, and has its home office In the city of New York.

This is an action to recover damages for personal injuries, brought by E. T. Clements against the New Orleans & Northeastern Railroad Company, a corporation created under the laws of the state of Louisiana, and tried before the circuit court and a jury, in which a verdict and judgment were rendered against the defendant for $12,500. There was a motion by the railroad company for a new trial, which was overruled, and thereupon this writ of error was sued out.

<p>Wrongful Death — Action for Damages — Washington Statute.</p> <p>2 Ballinger’s Ann. Codes & St. Wash. § 4828, giving a right of action for wrongful death to the “heirs or personal representatives” of the deceased, when construed in connection with section 4838, which provides that “no action for a personal injury to any person occasioning his death shall abate, nor shall such right of action determine, by reason of such death, if he have- a -wife or child living,” changes the common law,' by which such action abated, or the right of action terminated, on the death of the person injured, only in cases where there is a surviving widow or child, and an administrator cannot maintain an action for the wrongful-death of his intestate under such statute, unless he sues for the benefit of a widow or child of the decedent.</p>

This is the second appeal of the appellant from the judgment of the district court at Louisville, adjudging the partnership of Simonson, Whiteson & Co., in which the appellant was a partner, to be bankrupts. The decision of this court on first appeal is reported in 37 C. C. A. 337, 96 Fed. 948. The petition in bankruptcy was filed on February 14, 1899, by throe firms, who alleged that they were creditors of the defendant partnership, in the aggregate sum of $10,000.

<p>1. Bankruptcy — Application por Discharge — Time op Filing.</p> <p>Under Bankr. Act 1898, § 14a, after the expiration of a year from the-date of his adjudication a bankrupt has no absolute right to apply for a discharge, but may be allowed to do so within the next six months, by an order of court, based on a petition to the judge for leave to file such application, accompanied by satisfactory evidence that the bankrupt was unavoidably prevented from making-his application within the year.</p> <p>3. Same — Entry Nunc Pro Tunc.</p> <p>Where a bankrupt filed an application for discharge 16 months after his adjudication, but without obtaining- leave so to do, and -without showing that he had been unavoidably prevented from making the application within the year, and afterwards, more than 18 months from the date of the adjudication, presented a verified petition setting forth the reasons for his delay,, and praying- for leave to file his application, and that the order granting such leave might be entered nunc pro tunc as of the date when the application was originally presented, held, that the petition must be denied, since the failure seasonably to obtain an order for leave to file the application was attributable to the laches of the party, not to the act of the court; and that the application for discharge must bo dismissed, but without prejudice to the right of the bankrupt to commence a new proceeding in bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Assets in Bankruptcy — Property Fraudulently Conveyed.</p> <p>Under Bankr. Act 1898, § 70, subd. 4, providing that a trustee in bankruptcy shall be vested by operation of law with the title of the bankrupt to all “property transferred by him in fraud of his creditors,” such trustee is entitled to avail himself, in like manner as any judgment creditor, of a decree of a state court declaring certain transfers and, conveyances of the debtor to have been fraudulent and void, and may claim the. property affected, as assets of the estate in bankruptcy, subject to any valid liens or charges against it.</p> <p>2. Same — Dissolution of Liens — Voluntary and Involuntary Cases.</p> <p>Bankr. Act 1898, § 07f, providing' that “all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt,” applies as well to cases where the debtor is adjudged bankrupt on his voluntary petition as to involuntary cases.</p> <p>8. Same-Judgment in Creditors' Suit.</p> <p>Said section 67f, Bankr. Act 1898, applies to a judgment rendered in a creditors’ suit brought to set aside alleged fraudulent conveyances of properly made by the debtors, and to vacate a receivership procured by them in a suit for the dissolution of their partnership. If the debtors are , adjudged bankrupt within four months after the rendition of such judgment, the adjudication deprives the creditor of any prior right to satisfaction out of the fund recovered or set free.</p> <p>4. Same — Inchoate Equitarle Lien.</p> <p>tinder the laws of New York, a judgment creditor who files a creditors’ bill to reach equitable assets or set aside fraudulent conveyances thereby acquires an equitable lien, but such lien depends for its perfection and enforcement upon the recovery of a valid judgment in his suit; and, if such judgment is annulled by the adjudication of the debtor as a bankrupt within four months thereafter, the creditor’s lien falls with it, and he has no rights in the fund superior to those of other creditors.</p> <p>5. Same — Jurisdiotion—Parties.</p> <p>A court of bankruptcy has jurisdiction over a judgment creditor of the bankrupt, for the purpose of enjoining him from proceeding in a state court for ihe enforcement of his judgment against property of the debtor, where the judgment was rendered null or inoperative by the adjudication of the debtor as a bankrupt within four months after its rendition, because all creditors are parties to the proceedings in bankruptcy, and because the court has power to restrain any person from illegally possessing himself of assets of the estate.</p> <p>6. Same — Rights of Judgment Creditor.</p> <p>A creditor who has recovered á judgment against his debtor more than four months before the filing of a petition in bankruptcy against the latter may he permitted by the court of bankruptcy to enforce his judgment by execution against real property of the bankrupt on which it is a legal lien.</p> <p>7. Same — Recovery of Assets — Property in Possession of Receiver.</p> <p>Where property belonging to the estate of a bankrupt is in the custody and possession of a receiver appointed by a state court, the trustee in bankruptcy should apply to the state court for an order directing the receiver to turn over the property to him.</p> <p>8. Same — Costs—Allowance of Expenses to Creditors.</p> <p>Where a judgment creditor, who has successfully prosecuted litigation to set aside fraudulent conveyances by the debtor and recover the property affected, loses his prior right to satisfaction out of the fund by the adjudication of the debtor as a bankrupt within four months after the recovery of the decree, so that the results of his efforts accrue to the benefit of creditors generally, it is competent for tlie court of bankruptcy to make him a reasonable allowance out of tlie estate as indemnity for his costs and expenses.</p>

<p>1 BANKRUPTCY — ADJUDICATION—TlMK TO APPEAR AND Pr,EAD.</p> <p>Oil a petition in involuntary bankruptcy against a corporation, there can he no adjudication, or reference' of the case by the clerk to the referee, on a written admission by the respondent of the acts of bankruptcy charged, and a waiver of service and of the time for appearance. Since creditors. as well as the alleged bankrupt, have the rigid; to appear and plead to the petition within 10 days after the return day, that day must be fixed by the issuance of a subpama, and the case must remain In' the clerk’s office until the 10 days have expired. u</p> <p>2. Same — Reii'krenck oe Case to Referee.</p> <p>Under Bnnkr. Act .1898, § 18f, the clerk cannot refer a petition in involuntary bankruptcy to the referee for adjudication, except in cases where no issue is made by the bankrupt or any creditor upon the facts averred in the petition, and where the judge is absent from the district, or from the division of the district where the petition is filed, on the next day after the last, day on which pleadings may be filed.</p>

<p>1. Bankruptcy — Exemptions—Demand op Indemnity.</p> <p>A trustee in bankruptcy has no right to demand from the bankrupt, as a condition upon his delivering to him the property claimed as exempt and appraised for that purpose, a bond of indemnity; and where, upon demand and refusal of such a bond, the trustee sells the property in question, the bankrupt may claim the amount of his exemptions from the proceeds.</p> <p>2. Same — Sade op Exempt Property by Trustee.</p> <p>Where a voluntary bankrupt demanded the exemption allowed him by the law of the state, and the property was appraised, and the claim allowed by the referee, but the bankrupt refused to accede to the trustee’s demand for a bond of indemnity, as the condition upon which he would deliver the property to him, and agreed that the property might be sold by the trustee, stating that he would claim the amount of the exemptions from the proceeds, Mil, that there was no waiver or forfeiture by the bankrupt of his right to claim the exemption.</p>

<p>Customs Duties — Classification—Anthracite Coal.</p> <p>Anthracite coal, containing less than 92. per centum of fixed carbon, is within the provision of paragraph 415 of the tariff act of 1S97, which imposes a duty on “coal, bituminous, and all coals containing- less than 92 per centum of fixed carbon,” and is not entitled to free entry under paragraph 523, in the free list, which includes “coal, anthracite, not specially provided for in this act.”</p>

<p>Copyright — Proper Subjects of Protection-Racing Chart.</p> <p>An “official form chart,” which consists of a list of race horses, and a compilation of facts and statistics relating to the performances of such horses on the track, is a proper subject of protection by copyright, where it is shown to be purchased and used by persons engaged in breeding, training, and racing horses; and on a proper showing a court of equity will not refuse a preliminary injunction against infringement of such copyright on the ground that the chart is also used for betting purposes.</p>

<p>Patents — Constbtjction of Claims — Uncertainty.</p> <p>The Van Ruymbeke patent, No. 367,782, for a fertilizing material obtained by a treatment of concentrated tank water, does not describe the product in its specification or claim in such foil, clear, and exact terms as to enable a person skilled in the art to compound the same or to determine its composition, and is therefore void for lack of certainty.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p>

<p>1. Patents — Construction oe Claims..</p> <p>A device described in tbe specification and in some of the claims of a patent, but which is not referred to in other claims, cannot be considered an essential element of the mechanism described in the latter claims, where it is not necessary to the effective working of such mechanism.</p> <p>2. Same — ConsteuctioN—Leather-Cuttins Machine.</p> <p>The Parsons patent, No. 368,108, for a machine for cutting leather or other materials, in which direct driving from the main shaft was substituted for indirect driving by the countershaft, in combination with a heavy or momentum pulley, which rotates continuously, and a clutch mechanism, by -which the power stored in such pulley can be utilized intermittently, being applied at the instant required to deliver the cutting stroke, and instantly released, accomplishes a result which is new and useful, and involves invention. The counterweight described in the specification is not an essential element of the mechanism described in claims 3, 4, and 5, and such claims are infringed by a machine which contains all the elements therein shown, although it does not use a counterweight.</p>

<p>Appeal from Hie Circuit Court of the United States for the Eastern District of Michigan.</p>

<p>1. Patents — Preliminary Injunction against Infringement — Review on Appeal.</p> <p>The decision of a judge upon an application for a preliminary injunction against infringement, will not he reversed on appeal, unless it appears, after a consideration of all the evidence upon which his action was based, that his legal discretion was improvidently exercised.</p> <p>2. Same — Infringement—Rebuilding Patented Machine.</p> <p>The right, of the purchaser of a patented machine to repair it does not . extend to its rebuilding, so as to make a practically new machine, and such rebuilding constitutes an infringement.</p>

<p>1. Patents — Invention—Determination op Question on Demurrer.</p> <p>Whether a device involves invention is a question of fact, and one upon which judicial minds may reach different conclusions in very simple cases. Hence, when a bill for infringement of a patent adds to the presumption of invention arising 1‘rom the granting of the patent by allegations of the commercial success and extensive use of the patented article, and the prior art, so far as a court can take judicial notice of it, does not disclose a similar device, the patent should not be declared void on its face for obvious lack of invention, except in plain cases.</p> <p>2. Same — Fireproof Fabrics.</p> <p>The Beer patent, No. 290,837, for a fireproof fabric, composed of a sheet woven of asbestus sewed to a backing of canvas or other strong material, and calendered so as to press the projecting fibers of the asbestus down over the seams to protect the threads from the effects of fire and heat, is not so obviously lacking in invention that it can be declared void on its face.</p>

<p>This was a suit in equity for infringement of a patent.</p>

<p>1. Patents — Suit to Compel Issuance op Patent.</p> <p>In a suit brought under Rev. St. § 4915, to require the issuance of a patent to complainant, where the controversy is between two claimants to priority of invention, there can he no- adjudication in favor of either unless the alleged invention is patentable.</p> <p>2. Same — Validity—Cokn Shredders.</p> <p>The Tracy & Platt patent, No. 557,727, for an improved com shredder, adjudged void for lack of invention in a suit brought under Rev. St. § 4915, by a complainant claiming priority of invention, to' require the issuance of a patent to him therefor.</p>

<p>Wrongful Death — Action foe Damages — Proximate Cause.</p> <p>An hour after a collision between a steamer and a schooner, in which the latter was injured, the steamer returned and offered to tow the schooner into port, 20 miles distant. The offer was refused, and some hours later, the wind and sea having increased, the schooner sprung a leak in consequence of the injury, and subsequently sank; the master and two seamen being drowned. Helé, that the collision could not he deemed the proximate cause of their death, so as to support a libel by their administrator against the steamer to recover damages therefor, based on a statute giving a right of action for wrongful death.</p>

<p>Maritime Liens — Enforcement—Intervention after Sale of Vessel.</p> <p>Where a vessel has been sold pursuant to a decree entered after due notice requiring all claimants to appear, and has been delivered to the. purchaser, and the proceeds applied to the discharge of the debts allowed, the sale will not be set aside to permit another claimant to then intervene and prove his lien.</p>

<p>1. Maritime Liens — Supplies Furnished on Contract with Owner.</p> <p>By the maritime law no lien for labor or supplies furnished a vessel Is presumed to arise on a contract made with the owner, and to create a lien in such case an agreement or mutual understanding to that effect is necessary, and must be proved; and the rule is not different where the person contracted with is known to be a partner in the firm which owns the vessel, because he is also acting in the capacity of master, it being within the power of the person furnishing the labor or supplies to require an agreement for a lien, if he intends to rely upon the credit of’the vessel, 1</p> <p>2. Same — Towage Services Rendered under Contract.</p> <p>Where a tug which had been employed to render general towing services for a partnership for an agreed sum per month was sent by the firm on a special service to bring a general tow, without any agreement as to what should constitute such tow, for which service an agreed price was to be paid, such service must be deemed to have been rendered on the personal credit of the contractors, and not to create a lien on a dredge, which, with two scows and other dredging material, made up the tow, for the whole or any part of the towage.</p> <p>3. Same.</p> <p>A tug, contracting with the owners of a dredging plant, consisting of a dredge and scows, to render general towing services, in connection with tile dredging operations, for a stipulated sum monthly, is not entitled to a lien therefor on the dredge.</p> <p>4. Same.</p> <p>A tug is entitled to a lien upon a dredge for casual towing services, rendered on request of those operating the dredge, in removing loaded scows to the dumping grounds at different times, when such service could not be performed by the tugs in regular attendance,</p> <p>5. Same — Services as Inspector of Dredging.</p> <p>One employed by a contractor for dredging as an inspector, at a fixed salary per day, pursuant to a state law requiring the work to be done under inspection, is not entitled to a maritime lien for his services upon a dredge owned and used by the contractor for the amount due him for services.</p>

<p>Suit in rem against the ship Prussia to recover damages for delay in carrying and delivering a shipment of horses, hay, and other merchandise from Seattle to Skagway; also upon a second cause of action to recover damages for breach of a contract for the sale and delivery at Dyea of 200,000 feet of lumber. Decree for libelant on first cause of action.</p>

<p>Maritime Liens — Supplies—Effect of Charter.</p> <p>The terms of a time charter of a steamer contained provisions indicating that the venture was to some extent a joint one between the owner and charterers. The owner, who was a member of a firm of shipping agents, was to sell the tickets for passage on the contemplated voyages, and his firm were advertised as agents for the vessel. The office of the charterers was also with such firm, with nothing to indicate that the business was separate. Ileldi, that one furnishing to the vessel necessary supplies for the voyage on the order of the master, without either actual or constructive notice of the charter, was entitled to a lien on the vessel therefor, although by the terms of the charter such expenses were to be paid by the charterer, 1</p>

<p>Maritime Liens — Equipment.</p> <p>Under 2 Ballinger’s Ann. Codes & St. Wash. § 5953, which gives a lien on a vessel for equipment furnished in that state at the request of her owner, master, or agent, and provides that every person “having charge in whole or in part of the * * * equipment of any vessel shall he held to be the agent of the owner,” one who furnished necessary equipment for a steamer at the request of the agent of a corporation claiming to be a part owner, and which was in possession under a contract for her operation on joint account, by the terms of which the corporation was to become the owner when the owner’s share of the earnings reached a specified sum, is entitled to a lien therefor, which may be enforced in admiralty, where it was expressly agreed that credit was given to the vessel.</p>

<p>1. Seamen — Suit por Wages — Release.</p> <p>Seamen who, after joining in a lihel for damages, settle their claims, and execute a release, on receiving a small payment and a cancellation of their indebtedness to the ship for advances and merchandise, without fraud or duress, cannot impeach the consideration for such release, and the suit as to them will be dismissed.</p> <p>3. Same — Detention Beyond Term op Service.</p> <p>Libelants shipped as seamen on a whaling ship for a voyage not to exceed one year, and were to receive a share of the proceeds as compensation. During the year the ship became fast in the ico, and was not released until some time after the end of the year. After being released, the master, against the protest of the men, went on another cruise. Held, that the detention of the ship while imprisoned in the ice, and while afterwards talcing up the members of her crew, who had been sent on shore while she was so imprisoned, was an incident to navigation in that latitude, for which the ship was not liable, but that for the time occupied by the subsequent cruise, and after it became the duty of the ship, under the articles, to return libelants to the port of discharge, she was liable to them for damages in an amount sufficient to compensate them for their loss of time.</p>

<p>In Admiralty. Suit to enforce contribution on account of. damages recovered from libelant for collision.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio.</p> <p>The steamers Waldo and Choctaw collided in the St. Marys river, about 1 mile below the lower entrance to the American canal lock at the Sault Ste. Marie. The Waldo was about 400’ feet over all, was- heavily laden with iron ore, and was bound down the St. Marys river. The Choctaw was 267 feet over all, was unladen, and was bound up the river. The collision occurred about 3 a. m. May 20, 1896, in the American channel, about 400 feet below Spry’s Dock, on the American side. The stem of the Waldo struck the Choctaw about amidship on her starboard side, cutting in for about 7 feet, both above and below the water line. The Waldo also sustained considerable injury. The Choctaw was at once beached, to prevent sinking in deep water. The Choctaw was owned by the appellee, the Lake' Superior Iron Company, which shortly after the collision filed its libe\ in the district court. The Waldo-was owned by the appellant, the Roby Transportation Company, who answered and filed a cross libel. A vast amount of evidence was submitted upon the issues thus presented. Upon the pleadings and evidence the district court found the Waldo to be wholly at fault, and condemned her to pay the entire damage of the Choctaw, and dismissed the cross libel. From this decree the owner of the Waldo has appealed.</p>

In Admiralty. Suit in rem by the owners of the steamer Beaver to recover damages for injuries to their vessel caused by a collision with a scow being towed by tbe steamer Ernest A. Hamill. The court finds that the Beaver and the Ernest A. Hamill were equally in fault.

<p>Jurisdiction of Federal Courts — Amount in Discute — Good Faith of Claim.</p> <p>A plaintiff cannot confer jurisdiction on a federal court of an action on account for the price of goods sold by ignoring in his petition a credit to which the defendant is entitled on the account by agreement of the parties, the right to which is in fact, undisputed, and which, if allowed, reduces the amount in controversy below $2,000.1</p>

<p>1. PROCESS — SERVICE ON NONRESIDENT — COLLATERAL ATTACK.</p> <p>Rev. St. § 70S, which authorizes a court to make an order for service ouTside the district, either personally or hy publication, on defendants who are nonresidents and cannot be round in the district, in a suit in equity to enforce any lien or claim against property within the district, does not prescribe the evidence upon which the court shall find the non-residence; and an order for such special service which contains a finding that none of the defendants were inhabitants of or could be found within the district will he presumed to have been based on sufficient and- eom-pietent evidence, when collaterally attacked.</p> <p>%. Decree — Persons Concluded — Representation of Bondholders ry Trustee in Mortgage.</p> <p>Bondholders of a, corporation whose bonds are secured by a deed of trust giving the tinstee authority to bring suit to foreclose the same are represented by the trustee as to any litigation involving the validity of the trust deed, and are bound by a decree canceling the same as invalid in a suit brought against the trustee, although they wore not parties thereto.</p>

<p>1. ATTACHMENT — STATUTORY PROCEEDINGS.</p> <p>An attachment proceeding in a state court under the West Virginia law, when there is only constructive service of process by publication, and no appearance by the defendant, is strictly a statutory remedy, and in derogation of the rights of the party at common law; and in order to deprive a person of his common-law rights, and mate the judgment or decree rendered in such proceedings valid and binding, the requirements of the statute must be strictly complied with.</p> <p>2. Same — Sale or Realty — Bond—Want or Jurisdiction.</p> <p>Where the statute expressly provides “that no sale of real estate attached shall be made until the plaintiff, or some one for him, shall give bond with sufficient security, in such penalty as the court shall approve, with conditions,” etc. (Code W. Va. 1868, c. 106, § 23), a sale of real estate without such bond being given or required to be given will not only be made without authority from the statute, but against the express and positive command of it, and will confer no title upon the purchaser.</p> <p>3. Judgment — Collateral Attack.</p> <p>Although a court may have jurisdiction of a case, yet, if it appears from the record that it did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter, then that decree and judg- , ment may be collaterally impeached.</p> <p>4 Notice to Purchasers.</p> <p>Persons claiming title under a purchaser whose title is derived from a decree entered by a court without jurisdiction to enter such a decree are affected with notice of such invalidity of title in their vendor, such invalidity appearing of record and in their chain of title, and such derivative purchasers are proper parties to a bill attacking the decree and the deed made under it.</p> <p>6. Void Tax Deeds.</p> <p>The decision of this court in De Forest v. Thompson, 40 Fed. 375, that a tax deed, made prior to the curative statute of 1882, under a sale in which the requirements'of the statute were not complied with, is void, is adhered to and reaffirmed.</p> <p>6. Equity — Laches.</p> <p>There can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence he had no reason to apprehend.</p> <p>7. Same.</p> <p>Except in peculiar cases, the facts of which require a departure from the usual rule, a court of equity will not hold a party guilty of laches within the period that the statute of limitations would not defeat a recovery of land upon the legal title.'</p> <p>8. Same — Jurisdiction.</p> <p>Where the invalidity of a tax deed, or a deed under a decree of a court acting without jurisdiction, does not appear on the face of the deed, such invalidity must be made to appear by facts dehors the deed itself; a common-law action does not afford the full and adequate remedy which should be given, and a court of equity has jurisdiction of a suit to impeach and annul such a deed.</p> <p>9. Same — Pleading—Multiplicity.</p> <p>A bill may be framed with a double aspect, and pray for relief in the alternative, where the statements of fact are not inconsistent; and a demurrer to such a bill, praying for relief in the alternative, and which shows that the plaintiff is entitled to one kind of relief or another, should not be sustained for multiplicity.</p> <p>(Syllabus by the Court.)</p>

<p>Street Improvements — Assessments—Constitutional Law.</p> <p>Act March 8, 1889, as amended in 1891 (2 Burns’ Rev. St. 1894, § 4288 et seq.), providing that the entire cost of a street improvement, except for crossings, shall be assessed against the abutting property by the frontage measurements, without regard to special benefits, and providing for no notice and hearing to ascertain and determine the actual benefits specially received by the landowner by reason of such improvement, the only notice and hearing being one to revise and correct the report and estimate of the engineer to make it conform to the prescribed basis of assessment, violates the constitutional provisions against, taking of property without just compensation and denidi of the equal protection of the law.</p>

<p>Federal and State Courts — Receivers.</p> <p>A federal court will not interfere with the possession of property hy the receiver of a state court first acquired, lmt, where it has also appointed a receiver for the same property, without knowledge of such possession, the order directing him to take possession will he suspended to await the termination of the state' receivership, when the complainant is not a party to the suit in 1he state court, and the services of the receiver may be subsequently required.</p>

<p>1. Process — Return as'Evidence.</p> <p>A return of service of process at “tbe place of business” of defendant is not conclusive that such place is a regular and established place of business, within the meaning of Act March 3, 1897 (29 Stat. 695), which malíes the jurisdiction of a circuit court of a suit for infringement of a patent, where the defendant is not an inhabitant of the district, dependent on the defendant having a regular and established place of business therein.</p> <p>2. Patents — Jurisdiction of Suit for Infringement — Nonresident Defendants.</p> <p>The temporary occupation by a corporation of another state of space in an exposition for the exhibition of its wares does not make such place a “regular and established place of business” of the corporation, within the meaning of Act March 3, 1897 (29 Stat. 695), so as to give a circuit court in that district -jurisdiction of a suit "haainst it for infringement of a patent.</p>

<p>1. Indemnity — Enforcement of Contract — Jurisdiction of Equity.</p> <p>A court of equity cannot compel an indemnitor to comply with his obligation in advance of the contingency upon which by such obligation be was to become liable.</p> <p>2. Same — Construction of Contract.</p> <p>A majority of the holders of railroad bonds joined in a request to the trustee to foreclose the mortgage, agreeing in the same paper to “indemnify and hold harmless the said trustee from any loss or damage on account of costs, counsel fees, and other expenses of such litigation.” The trustee employed counsel, and instituted a suit in foreclosure in which a decree was obtained, which, inter alia, fixed the complainant’s solicitor’s fees, and directed their payment, with other costs, from the proceeds of the mortgaged property, in accordance with the terms of the mortgage. The proceeds of the property, however, were exhausted in the payment of prior liens, leaving nothing to apply on such decree. The trustee thereafter brought suit in equity against its indem-nitors to require them to pay the fees of its counsel as so determined. Hold, that the trustee did not occupy the relation of a surety as to such fees, so as to entitle it to invoke the aid of a court of equity by an anticipatory decree for its protection, but that the liability of the defendants was a legal one, measured solely by their contract, which contained no agreement to pay counsel fees, and upon which no cause of action arose so long as the trustee had suffered no loss or damage, and had not even been adjudged liable for any of the matters on account of which it was to he indemnified.</p>

<p>Equity Jurisdiction — Remedy at Law — Statutory Provisions.</p> <p>A federal court of equity is not deprived of jurisdiction of a suit to establish a set-off hy the fact that a state statute permits a set-off to be. pleade 1 in an action at law.</p>

This cause comes here upon a writ of error to review a judgment of the circuit court, Southern district of New York, entered upon the verdict of a in. for $2,000 in favor of defendant in error, who was plainti'if below. On April 21, 1802, one Brizzolari executed a chattel mortgage to Park & Tilford, the plaintiff below, upon certain personal property then in his possession, at 452 Columbus avenue, New York.

<p>In Error to the United States Court of Appeals in the Indian Territory.</p>

<p>Appeal from the Circuit Court of the United States for the Middle District of Tennessee.</p>

<p>1. Master asd Servant — Personal Injury — Negligence or Fellow Servant — Sufficiency ob’ Complaint.</p> <p>Plaintiff, who was employed as a helper to the operator of an air drilling machine in a mine, was injured hy reason of the drill striking a “missed shot,” or drill hole filled with unexploded powder, and causing an explosion. The complaint alleged that plaintiff was uuder the direction and control of the operator, and that it was the duty of the operator and other drill runners working in the mine to look out for such “missed shots,” and, after the explosion of any drill holes, to examine same, and, if they had failed to explode, to cause the powder to he removed; that it was not plainiiff’s duty to examine as to such “missed shots,” except when notified that one had occurred; that at the time of said explosion plaintiff had no notice nor knowledge thereof, nor any reason to believe that one existed, nor would he, as defendant well knew, be at all likely to discover such missed shot in doing the work he was employed to do; that neither defendant, nor the operator to whom plaintiff was helper, nor any other of the drill owners in the mine, after the explosion which preceded the accident to plaintiff, attempted to find said “missed shot,” and to remove the powder therefrom, and, because of their failure so to do, defendant failed to furnish plaintiff such a reasonably safe place in which to work as it was in duty bound to do, and which plaintiff had rekson to believe it had done. Held, that the complaint warranted the construction that the “missed shot” by which plaintiff was injured was planted by himself and the operator in the progress of the work which they, as fellow servants, had jointly undertaken to perform, and that they had returned to the use of the drill without making a search for “missed shots,” and, therefore, the complaint failed to state a cause of action for damages against the employer.</p> <p>• 2. Same.</p> <p>Conceding that defendant had made it the “particular duty” of the drill runners to look out for and guard against “missed shots,” and, after the explosion of any drill holes, to examine them, q.nd, in the event that “missed shots” were found, to remove the powder, or notify the employes in the vicinity, and that the operator to whom plaintiff was helper neglected these duties, yet, it appearing that plaintiff knew that there was no absolute certainty that every shot they attempted to explode would do so, and that the operator neglected to search for “missed shots,” the complaint fails to state a cause of action, since it is not alleged that defendant had not exercised reasonable care in the selection of the drill operator, nor that he was incompetent or unfit for any reason, nor that the place in the mine where plaintiff was set. to work was unsafe when he entered defendant’s employment.</p> <p>3. Same.</p> <p>The drill operator and plaintiff, as his helper, being engaged in the common service of running the drill, and the very service they had been employed to perform, they were fellow servants, and, having proceeded to work the drill without taking steps to find out whether there was a “missed shot” or not, when they had full knowledge that shots had been fired, and that a “missed shot” might be reasonably anticipated, and, if found by thé use of the drill, danger and injury would result to both, the plaintiff must be held to have assumed the risk of his own negligence.</p> <p>4. Same — Safety of Place to Work — Duty of Kmuloyeh to Inspect.</p> <p>The danger from “missed shots” being incident to the very work which plaintiff was employed to perform, it was not the duty of the employer to make inspections for “missed shots” after each explosion. .</p>

Motions to strike out certain specific denials repeated in each “separate” defense (subsequent to the first) set up in the answer

This action was brought by the Northwestern Mutual Life Insurance Company, the defendant in error, against Edmund L. Scholtz, the plaintiff in error, and William H. Hunter, to recover damages for the alleged breach of an executory agreement to enter into a lease. The contract sued upon was as follows: “This agreement, by and between the Northwestern Mutual Life Insurance Company, by Samuel 0.

<p>1. Guakanty — Guarantor of Coij.ection — Condition Precedent to Liability.</p> <p>To charge the guarantor of the collection of a note, the holder must show timely and diligent prosecution of the usual legal remedies against the principal debtor, to judgment and execution, without avail.</p> <p>2. Same —Release oi? Guarantors — Delay in Proceedin'!! against Principal.</p> <p>After the maturity of notes, the collection of which defendants had guarantied, plaintiff commenced a suit in equity to foreclose a mortgage securing such notes, and aslred a deficiency judgment therein, which could only be rendered after the mortgaged property had been exhausted. It was 18 months after such suit was commenced before a personal judgment for the deficiency was obtained against the maker, and 18 months thereafter before execution was issued. The pendency of the foreclosure suit would liare been no obstacle to an action at law on the notes if no deficiency judgment had been demanded therein. Hd<l, that such delay was unreasonable, and operated to discharge the guarantors.</p>

<p>New Trial — Grounds—Inability to Procure Bill of Exceptions.</p> <p>A hill of exceptions can he signed only hy the judge who tried the case, and, where the defeated party is prevented, without his own fault, from procuring such signature, — as by the illness of the judge before the expiration of the time allowed for filing the hill, and his subsequent death, —the remedy is hy a motion for a now trial, which may be entertained in such case, although filed out of time.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p>

<p>1. Appeal — Review—Action Tried Without Jury.</p> <p>In reviewing a judgment rendered in an action at law tried by stimulation without a jury, the one question, on a special finding, is of the sufficiency of the faejs found to support the judgment; and where, upon special findings upon different, issues, judgment has been given in favor of the defendant if the finding on one issue is unassailable, and sufficient to support the judgment rendered, no error of law or fact in respect to another issue can be deemed harmful, and no statement of a legal conclusion, however wrong, can affect the judgment, if it is right upon the facts found.</p> <p>2. Patents — License—Subsequent Acquiring of Title by Licensor — Relation.</p> <p>Where, at the time of the execution of a contract, by which plaintiff assumed to grant to defendants the, right to manufacture and sell a patented device within a certain territory, and defendants agreed to manufacture and sell a certain number each year, and to pay plaintiff a royalty thereon, the plaintiff had no title to the patent, its subsequent acquiring of such title did not inure to the benefit of the defendants by relation as of the date of the contract, so as to render them liable in damages for a failure to manufacture and sell the patented article at a time when they had no legal right to do so.</p> <p>8. Contract — Requisites and Validity — Incomplete Execution.</p> <p>Where a contract, containing a provision requiring it to be countersigned and approved by the officers of a corporation, which was one of the parties thereto, before it should be binding on either party, after having been signed on behalf of the corporation was materially altered by its agent before it was signed by the other party, and was never thereafter submitted to the officers of the corporation for their approval, it did not become effective, in the absence of proof that such requirement was waived.</p>

The St. Louis Paper-Box Company, the plaintiff in error, is a Missouri corporation engaged in the business of manufacturing cartons. The J. C. Hubinger Bros. Company, the defendant in error, is an Iowa corporation engaged in the manufacture of starch, at Keokuk, in that state. The starch is put up for sale in cartons.

<p>In Error to the Circuit Court of the United States for the District 'of Minnesota.</p>

The action in the court below was by the defendant in error against the plaintiff in error to recover upon a policy of accident insurance.

<p>In Error to the District Court of the United States for the Northern District of New York.</p> <p>This cause comes here upon a writ of error to review a decision of the district court, Northern district of New York (94 Fed. 824), reversing a decision of the United States commissioner which or dered that defendant, a Chinese person, should he deported to the empire of China.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Proof of Debts — Motion to Expunge.</p> <p>Where no trustee has been appointed for the estate of a bankrupt, a motion for the re-examination and expunction of a claim proved and allowed against his estate may he made by the bankrupt himself.</p> <p>2. Same — Duty of Bankrupt.</p> <p>Though Bankr. Act 1898, § 7, cl. 7, makes it the duty of a bankrupt, in case any person, to his knowledge, has proved a false claim against his estate, to “disclose that fact immediately to his trustee,” yet the fact that no trustee has been appointed will not relieve the bankrupt from the duty, nor deprive him of the right, of objecting to the allowance of any false or unjust claim against his estate, or of moving for its expunction.</p> <p>3. Same — Petition for Reconsideration of Claim — Sufficiency.</p> <p>Where a petition for the reconsideration and disallowance of a claim proved against the estate of a bankrupt does not aver the essential facts with sufficient particularity, the proper method of objecting to it is by a motion for a more specific statement, not by motion to strike out parts of the petition.</p> <p>4. Same.</p> <p>Where a petition for the reconsideration and disallowance of a claim proved against the bankrupt’s estate alleged that the original obligation, on which the bankrupt was secondarily liable, had been repeatedly renewed and extended by the creditor, without the bankrupt’s knowledge or consent, and new notes taken on account of the indebtedness, held sufficient to let in proof of the extension, without a specific averment that the new notes were taken in satisfaction or lieu of the original note or that there was a consideration for the contract of renewal.</p>

<p>Bankruptcy — Liens—Fraud udent Mortgage.</p> <p>Wliere a debtor, apprehending the recovery of damages against him in a sBit for negligence, and intending to deceive the plaintiff therein and protect his property from execution, gave his note to one of his creditors for a sum largely in excess of the amount honestly due, and secured the same by a chattel mortgage covering all his personalty, and such creditor, with knowledge of the facts, recorded the mortgage, and filed an affidavit that the entire amount of the note was justly due, and the debtor afterwards became bankrupt, held, that the mortgage could not be enforced as a lien against the bankrupt’s property, even to the extent of the original bona fide claim; the whole transaction being vitiated by fraud.</p>

<p>1. Bankruptcy — Costs and Expenses -Re-examination- of Claim.</p> <p>General Order No. 21, par. (> (32 G. O. A. xxiii., 89 Fed. x.), in bankruptcy, regulating tbe procedure for tlio “re-examination of any claim filed against tbe bankrupt’s estate,” applies to claims against tlie bankrupt that were in existence at the commencement of the proceedings, but not to claims against the estate for expenses of administration, such as the charges and expenses shown on the account of a receiver appointed to take charge of the bankrupt estate.</p> <p>2. Same — Practice.</p> <p>A creditor who desires to- object to the charges and expenses appearing on the account filed by a receiver in bankruptcy should promptly file exceptions to such account with the referee, and may bring the matter before the court by petition for review of the decision of the referee on the questions thus raised.</p>

In Bankruptcy. The following is the opinion of the referee (EDWARD F. HOFFMAN): The only exception pressed in argument was the first… Held: are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction, in other cases.” It appears to tlie referee that contentions as to rights of the trustee or receiver to take possession of property of the bankrupt are the…

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p> <p>Citing In re Kalkey, Bed. Cas. No. 12,253; Id., No. 12,254; In ro Purvine, 37 O. O. A. 446, 96 Fed. 192; In ro Tudor (D. G.) 96 Fed. 942; In re McCormick CD. C.) 97 Fed. 566; In re Schlesinger, Id. 930; In re Mayer (D. 0.) 98 Fed. 839.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Yew York.</p> <p>This is an appeal from a decision of the circuit court, Southern district of Yew York (91 Fed. 755), reversing a decision of the board of general appraisers, which reversed a decision of the collector of customs touching the classification for duty of certain merchandise entered at the port of Yew York, September, 1890.</p>

On petition praying- the issuance of a writ of habeas corpus on behalf of petitioner, and demurrer thereto filed by respondent.

<p>Patents — Transfer—Assignment in State Insolvency Proceedings.</p> <p>A patent confers on the patentee merely an incorporeal right to exclude others from using the invention for which it is granted throughout the United Stales, and is transferable only according to the law of its creation. It cannot he transferred, hy operation of a state insolvency law, through assignments made hy the judge or an assignee in insolvency, when no personal assignment is made hy the owner of record.</p>

<p>1. Patents — Validity and Infringement — Effect of Other Decisions.</p> <p>Under the rule in the Seventh circuit, decisions of the courts of other circuits on the questions of validity or infringement of a patent will not be followed, but each case must be determined on its merits, as disclosed by the record therein, giving weight to the decisions of other courts only to the extent that their reasoning may be persuasive as applied to the facts presented by such record.</p> <p>U. Same — Suits for Infringement — Preliminary Injunction.</p> <p>To prevent the granting of a preliminary injunction against infringement, it is not necessary that the proofs in opposition shall be convincing, but only that they shall cast a reasonable doubt on complainant’s right.</p> <p>3. Same — Validity—Joint Invention.</p> <p>It is the well-settled rule in the United States that a patent issued to two persons as joint inventors is void, even in the hands of innocent purchasers, where it is shown that in fact one of them was the sole inventor.</p> <p>4. Same — Incandescent Mantles.</p> <p>The validity of the Paw son patent, No. 407,963, for a process for strengthening incandescent mantles for handling and transportation, 7idúj not sufficiently established to warrant the granting of a preliminary injunction against infringement.</p>

<p>Suit in Equity for Infringement of a Patent.</p>

<p>1. Shipping. — -Repaiks—Liability of Part Owner.</p> <p>In the home port, where all the owners reside, the managing owner, although registered as such in the custom house, cannot, merely hy virtue of that relation, contract for repairs, and hind his co-owners to a personal liability therefor.</p> <p>2. Same.</p> <p>A part owner of k vessel, who purchased his interest from his co-owner, paying therefor a price largely in excess of its then value, upon an agreement that the vessel should be repaired at the cost of the seller, cannot be charged with personal liability for the cost of such repairs, made under a contract with his co-owner as managing owner, because of the fact that he knew such repairs were being made, and that their cost greatly-exceeded the amount estimated, and did not object.</p>

<p>1. Touts — Law Applicable — Place of Injury.</p> <p>The locus of a tort is determined by the place where the injury and damage arose, rather than where the negligent act which produced such injury was committed; and a. libel to recover damages for the death by drowning of libelant's intestate, as the result of a collision and the sinking upon the high seas of a vessel sailing under the french flag, and on which the deceased was a passenger, alleged to have been (hie to negligent navigation, which does not allege that the drowning occurred upon tile vessel, fails to show that the cause of action arose upon French territory, so as to render the law of France applicable thereto, conceding that tlu; carrying of the French flag extended the jurisdiction of such law to the ship.</p> <p>2. Admiralty — Torts Committed on the High Seas- -Action fob Wrongful</p> <p>Death. „ •</p> <p>A suit in admiralty cannot be maintained in a court of the United States, either under the general maritime law or any act of congress, to recover damages for the death of a person on the high seas which was caused by negligence.</p> <p>8. Same — Law Governing — Enforcing- Laws of Foreign Nation.</p> <p>In cases arising in tort upon the high seas, a court of admiralty of the United States cannot enforce the local law of a foreign nation, even if in terms it applies to the case, on the ground that the alleged cause of action arose upon a vessel of that nation, but such cases must be adjudged by the general maritime and admiralty law as understood and administered by such courts.</p>

This case presents cross appeals from a decree in admiralty of the district court for the Eastern district of Michigan. Held: for she left her course and ran, into the Centurion. It is also claimed that the Marshall has not been exonerated by proof excusing the sheer, and that the testimony shows that proper skill and seamanship by those in charge of the Marshall would have avoided the accident.

<p>1. Collision — Steamers Meeting in Fog — Disobedience oe Rules.</p> <p>Article 25 of the new inland navigation rules, which requires steam vessels to lieei) on the starboard side of a narrow channel “when it is safe and practicable,” applies as well to navigation in darkness or fog as in clear daylight, although the darkness or fog may affect the question of safety and practicability; and a vessel proceeding on the port side of a narrow channel in a fog, without any attempt to comply with the rule, must be held presumptively In fault for a resulting collision.</p> <p>2. Same — Excessive Speed in Fog.</p> <p>Evidence hold io show that the speed of a steamer libeled for collision in a fog was excessive under the circumstances.</p> <p>3. Same — Navigation in Fog.</p> <p>When a, vessel in a fog, proceeding properly in other respects, hears a whistle slightly on either how, it is not clear that article 18, rule 1, of the navigation rules applies, and requires that the wheel should at once be put to port, as the whistle may be from a vessel going In any direction.</p> <p>4. Same — Excessive Speed in Fog.</p> <p>It, is the duty of a vessel to proceed in a fog at a moderate speed, both with respect to moving and to anchored vessels; and, generally speaking. her speed through the water, rather than over the ground, is the more important as it more closely affects lier maneuvering power. This is especially true as regards danger to moving vessels, and that she was proceeding moderately over the ground will not, free lier from blame, if, proceeding Immoderately through the water, she strikes a vessel under way.</p> <p>5. Same.</p> <p>A steamer proceeding In a fog In a narrow channel, where there was danger of meeting other vessels, at a speed Of over eight knots through the water, and at more than seven over the ground, was negligent, and must, he held In fault for a collision in which she was Injured, unless it is clearly shown that her excessive speed could not have contributed thereto.</p>

<p>Sales — Damages—Eraddflent Representations.</p> <p>The measure of'damages recoverable in an action of tort by a purchaser against a seller for false and fraudulent representations inducing the sale is the actual loss sustained by the plaintiff by reason of the purchase, which is to be arrived at by adding to the price paid by plaintiff such outlay as is legitimately attributable to the wrong conduct of the defendant, from which is to be taken the fair actual value of the property received.</p>

<p>Removal or Causes — Subject-Matter or Controversy — Action to Enforce Statutory Penalty.</p> <p>An action Rased on Code Iowa, § 2123, which provides that all payments for intoxicating liquor sold In violation of that chapter shall be held to have been received in violation of law, and upon a valid promise to repay the same on demand, is one for the enforcement of a statutory penalty, which will not be entertained by a court of the United States, and is therefore not removable.</p>

<p>1. Corporation’s — Individual Liability , of Stockholders — Transfer of Stock.</p> <p>The transfer by a stockholder of a corporation of his stock to another, without consideration, in view of the anticipated insolvency of the corporation, and at a time when it was in fact insolvent, although still a going concern, is not such a bona fide transfer as will relieve such stockholder from his statutory liability to creditors of the corporation.</p> <p>2. Same — Kansas Constitution.</p> <p>Under the provision of the Kansas constitution that “dues from corporations shall be secured by individual liability of the stockholders to an additional- amount equal to the stock owned by each stockholder,” the liability of the stockholder is contractual, and the term “dues” is to be construed as applying only to claims resulting from the legitimate and contemplated business of the corporation, and cannot be extended to a claim arising out of a guaranty made on behalf of the corporation, by its officers, without, authority, and where the stockholder sought to be charged had no knowledge that they were assuming to exercise such authority.</p> <p>8. Samf. — Suit to Charge Stockholder — Conclusiveness of Judgment against Corporation.</p> <p>While a judgment against a corporation may be accepted, under the statutes of Kansas, as conclusive, in an action against a stockholder to charge him with individual liability as to the amount of the debt and the liability of the corporation, it is not conclusive upon the stockholder that the claim is one of the nature for which he is rendered individually liable by the constitution.</p>

On the 9th day of December, 1895, Joseph Molen died at Hot Springs, Ark. On the 24th day of the same month Adele Wahl presented to the clerk of Car-land county, Ark., a paper purporting to be the last will and testament of Joseph H. Molen, by the terms of which she became the sole devisee, after the payment of the debts and funeral charges.

This was an action at law against the defendant, as receiver of a national bank, to charge the bank with liability for the conversion by its cashier of bonds of the plaintiff.

<p>1. Navigable Waters — River Beds — Grant op Rights to Riparian Owners.</p> <p>By a statute of Virginia (Acts 1883-84, e. 254, and amendments thereto) the inspector of oysters of a county was authorized to assign to each riparian proprietor submerged land in front of his land suitable for planting oysters not to exceed one-lialf an acre in extent. Assuming to act under such law, an inspector assigned to one of plaintiffs, who were riparian proprietors on the York river, a navigable stream, a location containing 30 acres below low-water mark, and to the other plaintiff 10 acres. In staking off such assignments each of the plaintiffs included territory 216 acres in extent, and they proceeded to plant portions of tlie same with oysters, in partnership. Helé, that such proceedings did not vest plaintiffs with such title to tlie locations claimed by them as to entitle them to recover compensation from the United States for injury thereto and to the oysters' planted therein resulting- from the lawful action of the government in dredging the channel of the river, on the ground that such injury constituted a taking of private property for public use.</p> <p>2. Same.</p> <p>. Riparian owners on a navigable stream, the bed of which is owned by the state for public purposes, cannot claim rights in such bed, as licensees of the state, on the ground that they are in possession under color of title, when such possession was taken contrary to the express provisions of the statutes of the state, and against its declared policy.</p> <p>3. Same — Injury Incident to Improvement op Navigation — Claims against United States.</p> <p>A state holds the title to the beds of navigable streams within its boundaries in trust for the public for the purposes of commerce and navigation, the sole control over which is vested by the constitution in congress: and, while the state may grant tlie use of such rivor beds to private citizens, such grants are subject to tlie obligation to suffer the consequences incident to the improvement of navigation on such river under an act of congress, and damages resulting from the prosecution of sucli improvement cannot be recovered from the United States.</p>

<p>Federal Courts — Following State Decisions — Construction of Statutes of Indian Territory.</p> <p>The construction giren by the supreme court of Arkansas to the statutes of that state, which have been adopted and put in force in the Indian Territory by act of congress, will be followed by the federal courts.</p>

<p>In Error to the Circuit Court of the United States for the District of Rhode Island.</p>

In Law. Plaintiffs, children of A. H. Davis and Charlotte E. Davis-, brought, suit in the superior court of Halifax county, N. 0., to recover possession of about 1.3(H) acres-of land, and damages for its detention, which suit was, on petition of defendant, removed to this court, and docketed on the law docket.

<p>Deportation op Chinese Person — Judgment ob> Commissioner — Time for Appeal.</p> <p>Under the act of congress of September 13, 188S (23 Stat. 476), § 13, providing that a Chinese person convicted before a commissioner of being unlawfully within the United States may, “within 10 days from such conviction, appeal to the judge of the district court,” a notice of appeal served. 13 days after a judgment of conviction is without force, and gives the-appellate court no jurisdiction of the case.</p>

The plaintiff in error sued the defendant in error in the circuit court of Clarke county, Miss., for $10,000 as damages for causing the death of plaintiff’s intestate, Joseph L. Nelson. On the application of the defendant the case was removed to the circuit court of the United States for the Southern district of Mississippi.

<p>1. Foreion Corporations — Service—Managing or Business Agents.</p> <p>Under Code Civ. Proc. Cal. § 411, which provides for service on foreign corporations “doing business and having a managing or business agent, cashier or secretary within this state,” by service upon such agent, cashier, or secretary, a railroad company incorporated in another state, which, although having no line of road within the state, maintains an office therein, designated by a sign as the freight and passenger office of its road, in charge of a general agent, who solicits passengers and freight to go over its line, and issues bills of lading for freight so shipped, is subject to suit in the state; and such agent is a managing or business agent, within the statute, on whom service ma.y -bo made.</p> <p>2. Same — Jurisdiction of .State Courts — Tort Committed in Another State.</p> <p>A private corporation, like a natural person, may be sued in a transitory action in any state where service can legally be had upon it; and under Code Civ. Proc. Cal. § 411, which provides for service upon foreign corporations doing business in the state, and section 395, which provides generally for the trial of suits against nonresidents, in any county which the plaintiff may designate in his complaint, a foreign railroad company which does business in the state, and has a managing agent therein, on whom service may legally be made, is subject to be sued in the courts of the state for a tort committed in another state.</p> <p>3. Carriers — Injury to Passenger — Collision Due to Negligence ok Des-see.</p> <p>A railroad company which lenses 1o another company the right to use a portion of its track, over which it also runs its own trains, is liable to one of its passengers for an injury received in a collision due to the negligence of the employes of its lessee.</p> <p>4. Damages — Personal Injury — Injuries Resulting from Fright.</p> <p>In an action by a passenger against a railroad company to recover damages for injuries received in a collision, where there was evidence that plaintiff sustained serious bodily injuries, an instruction was proper, that if great fright was a reasonable and natural consequence of the circumstances in which the collision, with the ensuing wreckage, explosion, and conflagration, placed the plaintiff, and she was actually put in fright by those circumstances, and injury to her health was a reasonable and natural consequence of such fright, and was actually and proximately occasioned thereby, such injury was one for which damages were recoverable.</p> <p>5. Same — Future Pain and Suffering — Mental Suffering.</p> <p>Damages for a personal injury may properly include compensation for pain and suffering, both physical and mental, which has resulted in the past, and also, if the injury is shown to be permanent, for such as it is fair to believe will result in the future.</p> <p>6. Evidence — Opinions of Experts.</p> <p>It is not error to permit a physician testifying as an expert to state his opinion as to the nature and cause of the bodily or mental condition of a patient whom he has treated, derived from his own knowledge, his attendance, treatment, and examinations, although based In part on statements of tlie patient and complaints made at different times as to her pains and sufferings, and in the same connection to give his opinion as to whether tlie injuries are liable to be permanent.</p> <p>7. Same — Hypothetical Questions.</p> <p>Where a hypothetical question to a witness testifying as an expert assumes the existence of a state.of facts which the evidence directly, fairly, and reasonably tends to establish, and does not transcend the range of evidence, it is proper to permit it to be answered; and it is not necessary that the question should embrace all the facts In the case, or that they should be stated in the exact language of the witnesses.</p> <p>8. Carriers — Action for Injury to Passenger in Collision — Evidence.</p> <p>In an action by a passenger against a railroad company to recover damages for personal injuries received in a collision, where it was show'll that plaintiffs nervous system was seriously affected after the accident, to enable the jury to determine whether she ivas frightened, or received a shock to which her condition might reasonably be attributed, evidence of all the facts and circumstances connected with the collision ivas admissible, such as that plaintiff jumped from the car in lier nightdress, and stood upon an embankment for half an hour with other passengers, and that she saw the wrecked and burning cars, and saw' and heard the wounded persons who were taken from the wreck. Such occurrences were a part of the res gestae, and tlie fact that they took place after the collision, or that plaintiff would not have been affected thereby had she remained In tlie car, did not render such evidence inadmissible, as she had the right to act upon the facts as they appeared to her at the time, and.to use her senses, without being chargeable with contributory negligence.</p> <p>9. Evidence — Photographs of Wreck.</p> <p>Photographs of the wrecks of railroad trains resulting from a collision, duly authenticated, are admissible in evidence in an action by a passenger to recover for injuries sustained in such collision, to illustrate 1lie testimony of the witnesses.</p> <p>10. Damages — Action eok.Injury to Passenger — Pleading Special Damages.</p> <p>In an action by a passenger against a railroad company to recover for injuries received in a collision, the aggravation of plaintiff’s other injuries, due to fright or nervous shock incident to the collision and its attendant circumstances, is a direct and proximate effect of the collision, and need not be specially pleaded, but may be proved under a general allegation of bodily injury.</p> <p>11. Trial — Instructions—Refusal of Requests.</p> <p>Absoluti' perfection in insi ructions, so that they cannot be subjected to criticism, is not, and cannot, reasonably be, required; but if the charge in its entirety fairly covers the legal propositions necessary to give instructions upon, and is substantially correct, it is not error for the court to refuse the instructions prepared by counsel, although they contain correct. principles of law applicable to the ease.</p>

<p>1. Evidence — Admissibility of Maps.</p> <p>In an action for a personal injury, a map or diagram of the place where the injury occurred, with its surroundings, shown to be substantially correct, is admissible in evidence, to aid the jury in understanding the testimony of the witnesses.</p> <p>2. Carriers — Action for Injury to Passenger — Evidence. '</p> <p>In an action by a passenger against a railroad company to recover for an injury caused by plaintiff’s stepping into an uncovered box, set in the ground, on alighting from a train at a station in the darkness, the admission of evidence to show the place where the train usually stopped was not error, where there was also testimony that on the occasion of the injury it stopped at the usual place.</p> <p>8. Damages — Personal Injury — Evidence.</p> <p>In an action for a personal injury, evidence to show plaintiff’s previous business or occupation is admissible on the question of damages, although such occupation was not alleged in his pleading.</p> <p>4. Evidence — Subjects of Expert Testimony — Effect of Injury.</p> <p>In an action for a personal injury which necessitated the amputation of plaintiff’s foot, it was shown that his previous occupation had been in working either asa carpenter or a miner, and also that he had procured an artificial foot. Held, that the effect of the injury, .under such state of facts, on his capacity to labor at such occupations, was not so clearly a matter within the common knowledge of all men as to render it error to permit a physician to state his opinion on the subject.</p> <p>6.Damages — Personal Injury — Special Damages.</p> <p>The cost of an artificial limb purchased in consequence of the injury sued for, which necessiiated the amputation of plaintiff’s foot, is not recoverable under a general allegation of damages, but must be alleged as special damages, to render proof thereof admissible.</p> <p>6. Negligence — Action for Personal Injury — Evidence.</p> <p>Evidence that, after plaintiff was injured by falling into a sunken box at defendant’s railroad station, such box was removed, is not admissible, if objected to, for the purpose of establishing the previous negligence of defendant in maintaining it where it was.</p> <p>7. Trial — Instructions—Refusal of Request.</p> <p>It is not, error for a court to refuse an instruction, requested by a party, directing the jury to disregard.evidence which such party himself introduced without objection, and when no motion was made to strike it out.</p> <p>8. Same — Construction of Instructions.</p> <p>The charge of a court must be construed with reference to the evidence before the jury, and to the presumption that the jurors are possessed of ordinary intelligence,- and will so understand and apply it, where they are charged that they must he governed solely by the evidence in determining all questions submitted to them.</p> <p>9. Damages — Personal Injury.</p> <p>In an action for a. personal injury, evidence is competent to show the character of plaintiff’s ordinary pursuits, and the extent to which his injury has prevented or will prevent him from following those pursuits; and the jury should take into consideration whether his injury is to any extent so permanent as to diminish his capacity to earn money in the future, and fix the damages on that branch of the case with reference to his earning capacity before and after the injury.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Revocation op Discharge.</p> <p>Under Bankr. Act 1898. § 15, providing that a discharge in bankruptcy may he revoked “it it shall ho made to appear tliai it was obtained through the fraud of the bankrupt, and thai the knowledge of the fraud has come to the petitioners since the granting of the discharge, and that the actual facts did not warrant the discharge,” It is cause for revoking a. discharge that the bankrupt had considerable property at the time of his bankruptcy and of his application for discharge, and concealed the same, showing no assets on his verified schedule, and swearing that he had sur-mideied all his property and had fully complied with all the requirements of the act. when the creditors, without laches, did not learn the facts until after the discharge was granted, and their petition is tiled in due time.</p> <p>2. Sauk — Reference op Petition to Referee.</p> <p>When a petition for the revocation of a discharge in bankruptcy makes out a prima fade case, and is tiled in due time by competent parlies, it will be referred to the referee as special commissioner to ascertain and report upon the facts alleged in the petition, upon due notice to the bankrupt, and upon hearing such evidence as may be offered by the parties.</p>

<p>1. Bankruptcy — Llens—Work and Labor.</p> <p>Where a clothier gave out garments, in. lots, to different tailors, to be made up by the piece, and returjv'd in whole or broken lots for examination, and to be paid for at stated intervals if approved, and the tailors employed other workmen in making up the goods, MU that, as against the estate of the clothier in bankruptcy, the tailors had a lien upon all articles remaining in their han'ds, not only for work done upon those articles, but also for work done upon any portions of the same specific lot which had been returned for examination and not yet paid for.</p> <p>2. Same.</p> <p>Where the whole of a particular lot had been returned for examination, this was not such an unqualified delivery of the goods as to deprive the workmen of their lien for labor bestowed on that lot, unless there had been such a delay in afterwards demanding payment as would amount to a waiver of the lien.</p>

<p>On review of decision of referee in bankruptcy on objections to the allowance of a claim proved against the estate of the bankrupt on the ground that the magistrate before whom the verification was made was the attorney for the creditor, and that the attorney who filed the claim on behalf of the creditor was also attorney for the bankrupt.</p>

<p>In Bankruptcy.</p> <p>George IS. Terrill was adjudged bankrupt on the 28th of October. 1898. and in due time thereafter made his application for discharge, and was examined by the creditors. At an adjourned meeting, the bankrupt having meanwhile died, certain creditors tiled specifications in opposition; lint these were after-wards withdrawn, leaving the petition for discharge unopposed. The facts shown by the evidence raised the question whether the trustee in bankruptcy would be justified in bringing suit for the recovery of certain property of the bankrupt, and, at, the request of the trustee, the referee certified his findings to the judge for his opinion. It appeared that the bankrupt, who was a merchant in embarrassed circumstances, on January 27, 1898, being heavily indebted to liis father, executed to the, latter a. chattel mortgage covering the stock of goods, furniture, and fixtures in his store. On January 21, 1898, he assigned to the same creditor, by written assignment, other personal property, and his store accounts and bills receivable; and on June 24. 1898, assigned to him his interest in the property and credits of a partnership of which the bankrupt was a member. On the day last named the father took possession under his mortgage. It was agreed by the parties that the stock should be applied on the debt at a certain valuation, and that, if more could be realized from the sale thereof, the bankrupt should have the benefit of it. The mortgagee accordingly remained in possession, selling the stock, giving the bankrupt credit, and reimbursing himself. The referee found as facts that the bankrupt was insolvent at the time of giving- the mortgage and assignments, and intended thereby to prefer the creditor to whom they were given, and that Ike la (tor was cognizant of Uto circumstances, and intended to secure a preference over oilier creditors.</p>

<p>1. Bankruptcy — Bxkiiptions—Personal Property.</p> <p>Where the law of the slats-(Const, S. C. art. 3, § 28) grants an exemption of personal properly of the value of .^500 to the head of a family, and provieles that, if lie has not that amount of property. Ills wife, having- a separate estate, shall he entitled to the like exemption as provided for the head of the family, hut with a proviso that not more than SñOO of personal property shall he allowed to the huslwnd and wife jointly, a married woman, having a separate estate, who becomes bankrupt, and whose husband owns personal properly of the value of S150, is entitled to claim only ¡yidO as the peisonal property exemption to bo set apart to her in the bankrupt cy proceedings.</p> <p>2. Same — Method of Settcnci Apart Exemption.</p> <p>In valuing and setting apart, a homestead exemption, a trustee, in bank-nip icy should conform as nearly as may he to the method provided by the state law for that, purpose.</p> <p>3. Same — Appraisement of Homestead.</p> <p>Where the state statute provides Thai the homestead shall he appraNed h,v three persons, chosen respectively by the debtor, the creditor, and the otficer holding the writ, a trustee in bankruptcy, when a claim of homestead is made by the bankrupt, should cause the property to be appraised by three per,sens, — one named by himself, one by the bankrupt, and one by the creditors: and an appraisement made by three persons all chosen by the trustee, the bankrupt not. being represented in their selection, will be set aside, on objections by tlie latter, and a new appraisement ordered.</p>

<p>In Bankruptcy.</p>

This is an appeal by the trustees in bankruptcy from an order of the district court sitting in bankruptcy, made October 17, 1899, allowing the sum of $12,-500 to counsel for the petitioning creditors for professional services. On August 11, 1898, the bankrupts, co-partners transacting a banking business under the name of the “Bank of Waverly,” made a voluntary assignment of their property for the benefit of their creditors,- pursuant to the statutes of the state of Illinois.

<p>Bankruptcy — Assets—Property Fraudulently Conveyed.</p> <p>A debtor mortgaged ids stock in trade to a relative, and üie mortgage was immediately foreclosed, and tlie goods bid in by a stranger, wlio transferred his bid to a friend of tlie debtor, and the latter ostensibly sold the property to the debtor’s wife. The purchaser handed the purchase money to llie wife, and she to the officer making the sale. It did not, appear that the wife owned anything, but it was stated that the money was advanced to lier on the credit, of the debtor himself, and that he had repaid it. The debtor continued to carry on business in his own name as •‘agent,,” and the property was in his possession at the time he was adjudged bankrupt. Held, that the transfer to the wife was merely colorable, and in fraud of creditors, and the trustee in bankruptcy should be directed to take possession of the property as assets of tlie estate.</p>

In Bankruptcy. On, the examination of the bankrupt, William M. Tudor, it was found that he had in his possession the sum of $2,106.44, which belonged to Ms estate in bankruptcy, and the referee ordered him to pay that amount-to his trustee in bankruptcy. For failure to obey this order he was committed to jail, as for contempt of court, until he should comply. 96 Fed. 942.

<p>Jurisdiction op Federal Courts — Diversity op Citizenship — Rearrangement op Parties.</p> <p>To a suit by a mortgagee of a street-railroad company to enjoin another street-railroad company from condemning the right to use a portion of the mortgagor’s track, the mortgagor company is an indispensable party, and, as its interests necessarily range it on the side of the complainant, it will be so placed by the court for jurisdictional purposes, although it is made a defendant by the pleadings; and, where it is a corporation of the same state as its co-defondant, a. federal court is without jurisdiction on the ground of diversity of citizenship.1</p>

<p>Jurisdiction op Federal Courts — Suit Arising under Patent Laws.</p> <p>A bill by the owners of' a patent to compel the specific performance of a contract for the introduction and manufacture of the patented article, and also for the cancellation of an alleged forged assignment of a part interest in the patent, does not state causes of action arising under the patent laws which will give a federal court jurisdiction of the suit.</p>

<p>1. Municipal CORPORATIONS — Contracts—Effect of Illegal Provision.</p> <p>The fact that a city, in a contract made with a water company for supplying water to the city and its inhabitants for a term of years, and fixing, the rates to be charged and paid therefor, exceeded its powers by attempting to confer upon the water company an exclusive right to so furnish water, does not affect the validity of the other provisions of the contract, which are in no way dependent upon such illegal provision, and may be enforced, although that is rejected.</p> <p>2. Same — Action—Injunction.</p> <p>During the life of a contract between a city and a water company, by which the latter agreed to supply water to the city and its inhabitants at fixed rates for a term of years, the city adopted an ordinance reducing the rates to be charged by the company. In a suit by a stockholder of the company, based on the contract, and also on allegations that the rates, fixed by the ordinance were so low as to deprive complainant’s stock of any earning ability, and to amount to a tailing- of his property without compensation, the court granted a preliminary injunction restraining the enforcement of the ordinance until final hearing. Before such hearing the contract between the city and company expired. Sold-, that such fact did not deprive the court of jurisdiction to proceed with the suit, or require it to dissolve the injunction, but that such injunction would not operate to extend the life of the contract, or affect the right of the city to deal with the situation presented by its expiration by entering into any other contracts, oy taking such other legislative measures as it might deem expedient to secure a water supply for the future.</p>

<p>1. LIMITATION — Claim against Estate — Discretion ov Executor.</p> <p>It is within the discretion of an executor to plead or waive the bar of the statute to a claim against his testator.</p> <p>8. Same — When Action Accrues.</p> <p>A statutory provision that limitation shall begin to run against an indebtedness on account, where there is a mutual running account between the parties, only from the date of the last item in such account, docs not apply to an indebtedness which was not entered in stjch account until after the death of the party charged, ard after the statutory period of limitation from the date of the transaction had expired.</p>

<p>Injunction — Grounds.</p> <p>The court refused an injunction to restrain a defendant from building a proposed railroad on the ground that, if built, it will be used in violation of a contract with complainant.</p>

Appeal, from the Circuit Court of the United Hiatos for the Northern i/tvision of the Northern District of Illinois. The appellant, the Charles E. Hires Company (the comida inant below), brought its bill to restrain an alleged unfair competition in trade by the appellee (the defendant below). Upon an application for a preliminary'injunction the facts disclosed are thus succinctly and accurately stated by the counsel for the appellant: “The Charles TO.

<p>1. Pledge of Mortgage — Enforcement—Bona Pide Purchaser.</p> <p>Defendant, executed a mortgage as security for certain bonds, which' were intended for sale upon the market. When only a few of the bonds had been sold, plaintiff, who was trustee under the mortgage, made a loan- to defendant for about one-half the amount of the mortgage, and took the .bonds and mortgage as collateral security. Upon default in the payment of interest the bonds and mortgage were sold at public auction, and purchased by the trustee or mortgagee. Held, that the mortgagee was not a bona fide holder, in the sense of being in a position to insist upon the absolute provisions of the mortgages in respect to forfeiture, and while entitled to foreclose the mortgage, for the purpose of perfecting and realizing upon his securities, his security could not extend beyond the actual indebtedness, and the foreclosure would be for the benefit of both himself and the bondholders.</p> <p>2. Same — Conditional Deed to Secure Bonds — State Statute.</p> <p>Under Pub. St. N. H. c. 139, § 1, providing that every conveyance of lands made for the purpose of securing money, or the performance of any other thing in the condition thereof stated, is a mortgage, a. conditional deed made in the state of New Hampshire to a trustee, as security for bonds to be sold upon the market, by a manufacturing corporation, is a mortgage.</p> <p>3. Same — Foreclosure—State Laws.</p> <p>Proceedings for 'the foreclosure of a mortgage in the federal courts must proceed upon the ordinary lines of foreclosure proceedings in the state where the mortgaged property is situated.</p> <p>4. Same — Cancellation of Bonds and Mortgage.</p> <p>Where mortgage bonds, and the mortgage securing the same, are pledged as collateral security for the notes of the mortgagor, and the collateral is sold at public auction upon default in the payment of the notes, and bid in by the payee, who forecloses the mortgage, the bonds and mortgage and notes become the foundation of the foreclosure judgment, and must be surrendered for cancellation, though judgment be rendered only for the amount dpe upon the notes.</p>

<p>1. Equity Pleading — Denial for Want of Knowledge or Information.</p> <p>A denial expressly based on warn of knowledge, information, or belief, although contained in a sworn answer, is not evidence in the case, and its only effect is to require the complainant to make some proof on the point.</p> <p>2. JURISDICTION OF FF.DF.KAL COURT — PROOF OF CITIZENSHIP.</p> <p>Proof that a complainant has resided in the same place for 70 years, and that ho owns a residence there, in which he maintains his business office, sufficiently establishes his citizenship in the state in which such place is situated, for jurisdictional purposes, as against a denial made only for want of knowledge, Information, or belief.</p> <p>8. Same — Presumption—Stookholdf.r in Corporation.</p> <p>The rule that the stockholders of a corporation will be conclusively presumed to be citizens of the state in which It is incorporated, for the purpose of fixing the citizenship of the corporation for jurisdictional purposes In the federal courts, does not extend beyond such purpose, and there is no presumption that an individual who sues a corporation is a citizen of the same state, because he is a stockholder in such corporation.</p> <p>4. Corporations — Mortgage to Stockholder — Validity.</p> <p>The fact that a person to whom a mortgage was executed by a corporation was the principal stockholder in such corporation does not render the mortgage invalid, and it cannot be impeached or its foreclosure resisted on that ground by one who contracted with the corporation for the purchase of the mortgaged property years after its execution, and while it was of record.</p> <p>5. Limitation — Right to Plead — Foreclosure of Mortgage.</p> <p>The defense of limitation is a personal one, which may be pleaded by the debtor or waived; and, when a corporation which has given a mortgage does not ma.ke such defense to a suit for foreclosure, it cannot be pleaded by one to whom tlie corporation has contracted to sell the property, but who has not been vested with either the full equitable title or I>ossession under Ills contract.</p> <p>6. Same- Federal Courts — Following Statf. Statute.</p> <p>The federal courts will follow the statutes of limitation of the states, as rules of decision, in cases where they apply, and In such cases the law of the forum will govern.</p> <p>7. Same — Nevada Statute — Foreign Corporations.</p> <p>Under the statute of limitations of Nevada (Gen. St. Nev. § 3651), which excludes from the computation of the time within which an action must be brought the time tlie debtor shall he absent from the state, a foreign corporation cannot plead limitation as a bar to a suit to foreclose a mortgage on property situated in the state, executed to secure an Indebtedness of the corporation, since, having been out of the state, the debt is not barred.</p> <p>8. Equity — Laciif.s.</p> <p>Laches which will bar a suit in equity depends on the peculiar circumstances of each case, and where the complainant’s inaction does not appear to have worked injury to any one, and it is not shown that, there was any occasion for more promptly asserting his rights, the defense will not prevail.</p>

<p>Taxation — Exemption-—Title in United States.</p> <p>So long as tbe United States retains tbe legal title to property it has sold to secure tbe payment of tbe purchase money, and any part of tbe same remains unpaid, tbe property is not subject to taxation by tbe state; and tbis rule is not affected by tbe fact that meantime tbe government retains tbe use of the property, and pays rent therefor to the purchaser.</p>

<p>Appeals from tbe Circuit Court of the United States for the Western District of Texas.</p>

<p>Post Ob-eioe — Breaking into — Construction op Statute.</p> <p>A defendant cannot he convicted under Rev. St. § 5T78, riiaking It an offense against the United Stales to “forcibly break into, or attempt to break into, any post office, or any building used in whole or in part as a post office, with Intent to commit therein larceny, * * *” whore the uneontradlcred evidence shows that the breaking into, the entry, and the larceny wei;e neither of them in that part of the building used as a post office.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p>

<p>Aliens — Proceedings for Deportation of Chinese — Jurisdiction and Duties of Commissioners.</p> <p>The provisions of the Chinese exclusion acts authorizing Chinese persons thought to he unlawfully within the United States to he arrested, and taken before a commissioner, confer jurisdiction upon such commissioner to determine .the cases, and no order of a district judge referring such •cases to the commissioner for hearing is either required or authorized; but a commissioner cannot he required to entertain such cases in the face of ■ an authoritative declination by the officers of the treasury department to pay Ms lawful fees and disbursements therein.</p>

<p>In Equity. Suit for infringement of a patent.</p>

<p>In Equity. Suit for infringement of a patent.</p>

<p>In Equity. Suit for infringement of a patent.</p>

<p>Shipping — Injury by Passing Vessel to Vessel at Wharf— Negligent Navigation.</p> <p>The Havana, a new steel steamship, of 5,000 tons net, on her trial trip, while passing a wharf on the Delaware river at Philadelphia, both on going out and on coming in, produced so large a wave as to cause libelant’s vessel, which was properly moored to the wharf for discharging cargo, to range so violently as to break her lines, although no such effects followed the passing of other vessels a.t greater speed. Held, that such facts raised a presumption of negligent navigation on the part of the Havana, which rendered her liable for the injury.</p>

<p>1. Tug asd Tow— Abandonment or Tow whkn Aground.</p> <p>A tug which abandons a tow after she bad grounded, leaving her in a position of danger, is liable for the injury resulting, of which the tug’s negligence was a proximate cause.</p> <p>2. Same— ¡Suit by Tow against Tug — Mutual Fault.</p> <p>A schooner in tow of a tug grounded about 2 p. m., when some 20 feet from her wharf, and was there abandoned by the tug. During tiie following night she listed, and injury resulted to the vessel and cargo. Held, in a suit to subject the tug to liability for the injury, that the same danger of injury, arising from the position of the schooner aground, which rendered the tug negligent in abandoning lier, required her master to thereafter use diligent efforts to relieve her situation, and, it appealing that he took no measures to that end until the injury actually occurred, that the damages should be divided.</p>

<p>1. Seamen — Statutory Damages for Dei,ay in Payment of Wages.</p> <p>Under Rev. St. § 4529, as amended hy Act. Cong. Dee. 21, 1898 (30 Stat. 756), which provides that every master or owner who refuses or neglects to make payment of a seaman’s wages at the time of his discharge, or within two days after the termination of his contract, without sufficient cause, shall pay to the seaman a sum equal to one day’s pay for each and every day during which payment is delayed, it is sufficient cause to exonerate the owners from such liability that while on a voyage the master wrongfully took possession of their vessel, converted the greater part of the cargo, which was the property of the owners, to his own use, and refused to return with the vessel as ordered, and that the owners, who were without money to pay the crew, at considerable expense obtained possession of the vessel, and brought it within the jurisdiction of the court, where it could be, and was, subject to sale for the payment of the wages due.</p> <p>2. Same.</p> <p>Quaere whether the liability created by such statute is enforceable by a suit in rem against the vessel, or is a penalty, only recoverable by an action in personam against the master or owner.</p> <p>S. Treaties — Consular Contention tvith Germany — Right or Consul to Represent German Subjects.</p> <p>Article 8 of the consular convention between Germany and the United States, of December 31, 3871, authorizing German consuls to act as legal representatives of the German emperor’s subjects, does not constitute such consuls administrators of deceased persons, or authorize a consul to recover wages due a deceased seaman who was in life a German subject, unless he represents heirs who are entitled to the money and who are German subjects.</p> <p>4 Seamen — Right to Wages — Forfeiture.</p> <p>A seaman who is shipped by the owners for a voyage is not deprived of his right to wages because' he remained with the vessel after she was wrongfully taken possession of by the master, and diverted from her voyage, in a distant port, where there was no court accessible through which the seaman could collect the wages due him, but under such circumstances he was justified in staying with the vessel, and is entitled to wages until returned to the port of discharge.</p> <p>5. Same — Power of Master to Bind Vessel.</p> <p>Libelant, as supercargo, was given verbal authority by the owners of a vessel to sell her cargo on arriving at the port of destination, and was to receive as sole compensation a percentage of the proceeds. On arriving at such port the master fraudulently refused to permit libelant to sell the cargo, and himself took possession of both cargo and vessel, devoting them to his own uses. Libelant remained with the vessel, and subsequently made a contract with the master to serve as cook for the master, his family, and the crew. Helé, tnat at the time the master had ceased to represent the owners, and had no power to- bind them or the vessel, and that libelant had no claim for wages enforceable against the owners or vessel.</p>

This is an appeal from a decree of the district court, Southern district of New York, awarding $12,500 as damages sustained by the widow and next of kin of Robert H. Middleton, deceased. On May 14, 1898, the deceased, together with seven others, was engaged in testing cables connecting the mines in the main ship channel, harbor of New York, during the late war with Spain.

<p>Shipping — Construction op Carrying Contract — Demurrage.</p> <p>Libelants contracted to carry, in their own or substituted vessels from Eseanaba to South Chicago, the ore required by respondent for its iron furnaces during the season, not to be loss than 90,000 tons, and to be di- • vided as evenly as possible during the season of navigation. Respondent contracted to do the unloading at its dock, and for dispatch therein, but the contract contained no provision for dispatch at the port of shipment; it being understood that respondent was obliged to procure the ore there from other parties. It subsequently contracted with two companies, operating mines connected by rail with Eseanaba, to supply the ore at that port, and notified libelants to ascertain from them when cargoes were ready for shipment. ffelcH, that there 'was no implied term of such contract requiring respondent to supply cargoes for loading at any particular time, or which rendered it liable for demurrage, because of the delay of libelant’s vessels while waiting for cargoes.</p>

<p>1. Collision — Construction of Sailino Rui.es — Vessel “Running Free.”</p> <p>A ship closehauiled, and sailing within 6%. points of the wind, is not ■ “running free,” within article 17, subd. 3, of the navigation rules, and is ■ the privileged vessel, where a crossing vessel is admittedly running free.</p> <p>3. Same — Evidence—Direction of Wind.</p> <p>Where the recorded official observations of the keepers of a lighthouse and a lightship agree, and fix with reasonable certainty the direction of the wind at the time and place of a collision, such evidence will be accepted,' rather than the testimony of the crew of either vessel, when the testimony of the two crews conflicts.</p> <p>3. Same — Excuse for Failure to Observe Rules — Darkness.</p> <p>A sailing vessel may be excused from fault in failing to take the action required by the rules' to prevent collision with a crossing vessel, which is in fact privileged, when, although exercising due vigilance, she is unable to determine (by reason of the darkness and the direction of the wind), from the lights of the other vessel, on what course she is sailing, and which is the privileged vessel; but such excuse cannot be invoked where, by reason of the inefficiency of her lookout, she failed to discover the approaching Vessel until the two were in close proximity, and she had no time to study the situation.</p> <p>.4. Same.</p> <p>A ship which, in a suit for collision, claims, and is found, to have been tbe privileged vessel, cannot be excused for disregarding the duty to keep her course, imposed by such privilege, except upon ample evidence of justification; and where, brat for her failure to observe such requirement, tbe collision might not have occurred, she must be held in fault therefor.</p>

<p>l'n Admiralty.</p>

<p>1. Collision — Striking Vessel at "Wharf — Fault of Moving Vessel.</p> <p>A vessel passing a wliarf in the daytime, and with plenty of sea room, which comes into collision with and injures a vessel there moored, is not exonerated from fault by the fact that the injured vessel was moored in an improper place. In such case the moving vessel must be held in fault, unless she shows that it was not in her power, by adopting any practicable precaution, to prevent the collision.</p> <p>2. Same — Regulations by State Harbor Board — Rule of Damages.</p> <p>Paragraph 27 of the regulations governing the port of San Francisco by the state harbor commissioners, which provides that “vessels, while lying across the end of any pier or wharf, will be responsible -for any and all damage to- themselves or to any other vessel while occupying that position,” cannot be construed as prohibiting the mooring of vessels at the end of a wharf or pier, blit is an attempt to prescribe the rule of damages for a collision between vessels when one is so moored, and, thus construed, is invalid, as the board is not given, by the state constitution, any legislative power, nor is it within the powers of the state to prescribe what rule of damages shall be applied in a court of admiralty in cases growing out of a collision under such circumstances.</p> <p>3. Same — Vbsrf.l Moored in Improper Place.</p> <p>Where the position of a vessel moored at the end of a wharf is not such as to involve danger of collision with vessels entering or leaving the harbor if properly navigated, she cannot bo hold to have been moored in an improper place, so as to render her in fault for a collision caused by the improper navigation of a passing vessel.</p>

<p>In Admiralty. This is a libel in the nature of a bill of review to obtain a review of the proceedings and decree in a former suit.</p>

<p>BHrppixs — Injury to Stkvf.boriii — Liability of Ship.</p> <p>A ship which is turned over for loading to a contractor, who is fully informed of the location of a hatchway, and that it is uncovered, owes no 1'nrther duty to warn the individual stevedores employed by such contractor of the danger from such hatchway, or to protect them therefrom, but such duty devolves upon their master; and the ship cannot be charged with liability for an injury to a stevedore resulting from his falling through such hatchway.</p>

<p>1. Federal and State Courts — Priority ov Jurisdiction — Effect of Appointment of Receiver.</p> <p>Tlie pendency in a state court oí a suit by a creditor against a corporation, in wliieli a receiver for tlie property of defendant has been appointed, does not deprive a federal court of jurisdiction to entertain a suit for ihe foreclosure of a mortgage on such property by a mortgagee who is not a party to the suit in tlie state court, although no action will he taken in such suit which will interfere with the possession of the state court, and a decree i'or ihe sale of the property under the mortgage, if entered, will not be executed, so long as such possession continues, 1</p> <p>2. Corporations — Lien of Receiver’s Certificates — Jurisdiction to Determine Priorities.</p> <p>It is not within the power of a court which has appointed a receiver for a corporation, and authorized him to issue certificates of indebtedness, to make such certificates liens upon the property of the corporation superior to the liens of oilier creditors who are not parties to the suit, nor has such court exclusive jurisdiction io determine the question of such priorities, but another court, in a suit by other creditors of the corporation, to which holders of such certificates are made parties, may determine the priority of lien as between the parties before it.</p>

This action was brought by Keuel H. Thayer, the plaintiff in error, against the Kansas Toan & Trust Company and Timothy B. Sweet, George M. Noble, and E. M. Sheldon, the defendants in error, to recover money alleged to have been obtained from him by fraud and deceit.

<p>In Error to the Circuit Court of the TTniiod States for the District of South Dakota.</p> <p>Prior to March 9, 1883, the comity of Lawrence, in the then territory of Dakota, had incurred a largo indebtedness, consisting of county warrants and certificates of indebtedness, and of bonds to the amount of §375,000, bearing 10 per cent, interest, that had been previously issued pursuant to legislative authority. On the last-named date the territorial legislature of the territory of Dakota passed a special act which permitted the county' “to issue new coupon bonds in the name of the county to an amount sufficient to enable it to, refund and pay off its outstanding matured and unmatured indebtedness created by bonds heretofore issued, * * * and all outstanding warrants, certificates, and. other evidence of indebtedness against the county of Lawrence; * * * such bonds to be in denominations of fifty (§50) and five hundred (§500) dollars, and shall be payable, principal and interest, at that national bank in the city of New York which the county commissioners of Lawrence county may select, in lawful money of the United States, not more than twenty years after the date of their issue, and may be redeemable in the same money at the pleasure of said county after ten (10) years from the date of their issue, and shall bear interest payable semiannually on the first days of May and November in each year at a rate not, exceeding five per cent. (5%) per annum.” This act provided that the question of issuing the refunding bonds should be submitted to a vote of the qualified electors of the county at an election held for that purpose, and that the refunding bonds should not be sold for less than their par value. The issuance of bonds pursuant to the provisions of said act -was authorized at an election held on May 15, 1888, and between that date and September 10, 1887, refunding bonds were issued to the amount of §150,-400. At the latter date bonds of the county to the amount of §375,000, bearing 10 per cent, interest, were still outstanding, which the holders had up to that time refused io exchange for the 5 per cent, refunding bonds. In 1887 the county commissioners of the county resolved to issue 5 per cent, bonds to the amount of the then outstanding 10 per cents., and they succeeded by that means in retiring bonds of the latter description to the amount of §05,200. Not being able, however, after proper effort, to exchange the 5 per cent, bonds for any greater amount of tlie 10 per cents., the board of county commissioners authorized the chairman -of the board to negotiate the sale of 5 per cent, bonds to the amount of $300,000, with a view of using the proceeds to retire the existing 10 per cent, bonds. It transpired, however, that the 5 per cents, could not be sold at par, whereupon the legislative assembly of the territory of Dakota in the year 1SS9 passed another act, amendatory of the act of March 9, 1883, which permitted the board of county commissioners of Lawrence county to sell and dispose of refunding bonds issued pursuant to the act of March 9, 1883, at not less than 90 cents on the dollar, and to use the proceeds of such bonds in redeeming, purchasing, or paying off at not more than par the outstanding indebtedness of said county, or to exchange them at that rate for outstanding indebtedness of the county. Thereafter the board of county commissioners of Lawrence county sold and delivered to the Municipal Investment Company of Chicago, Ill., refunding 5 per cent, bonds to the amount of $300.-000, receiving therefor in cash the sum of $270,953.10, which amount was deposited in the First National Bank of Chicago in the name of D. A. McPherson, who was trustee or agent for the county, to be used by him for the special purpose of redeeming 10 per cent, bonds theretofore issued by the county of Lawrence, which were then outstanding. The 304 coupons upon which this action is founded were detached, as it seems, from the refunding 5 per cent, bonds which were sold as aforesaid to the Municipal Investment Company. On July 30, 1886, the congress of the United States passed an act (24 Stat. 170, c. 818) entitled “An act to prohibit the passage of local or special laws in the territories of the United States, to limit territorial indebtedness, and for other purposes.” The first section of this act declared “that the legislatures of the territories of the United States now or hereafter to be organized shall not pass local or special laws in any of the following enumerated cases, that is to say: “ * * Regulating county and township affairs.” The third and fourth sections of said act are as follows:</p> <p>“Sec. 3. That no law of any territorial legislature shall authorize any debt to be contracted by or on behalf of such territory except in the following cases: To meet a casual deficit in the revenues, to pay the interest upon the territorial debt, to suppress, insurrections or to provide for the public defense, except that in addition to any indebtedness created for such purposes the legislature may authorize a loan for the erection of penal, charitable or educational institutions for such territory if the total indebtedness of the territory is not thereby made to exceed one per centum upon the assessed value of the taxable property in such territory as shown by the last general assessment for taxation. And nothing in this act shall be construed to prohibit the refunding of any existing indebtedness of such territory or of any political or municipal corporation, county or other subdivision therein.</p> <p>“Sec. 4. That no political or municipal corporation,‘county or other subdivision ip any of the territories of the United States shall ever become indebted in any manner or for any purpose to any amount in the aggregate, including existing indebtedness, exceeding four per centum of the value of the taxable property within such corporation, county or subdivision, to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such indebtedness; and all bonds or obligations in excess of such amount given by such corporation shall be' void: That nothing in this act contained shall be so construed as to affect the validity of any act of any territorial legislature heretofore enacted, or of any obligation existing or contracted thereunder, nor to preclude the issuing of bonds already contracted for in pursuance of express provisions of law; nor to prevent any territorial legislature from legalizing the acts of any county, municipal corporation or subdivision of any territory as to any .bonds heretofore issued or contracted to be issued.”</p> <p>The ‘case was tried below without the intervention of a jury, and the trial court rendered a judgment in favor of H. L. Jewell, the plaintiff below. To reverse said judgment the county of Lawrence brought a writ of error.</p>

<p>1. Foreign Corporations — State Regulation — Validity.</p> <p>A territorial statute requiring foreign corporations, before carrying on business within the territory, to file copies of their articles of incorporation, and appoint an agent on whom process may be served therein, imposes reasonable requirements as a condition precedent to the right to do-business in the territory, and is valid.</p> <p>2. Same — Carrying on Business in a State — What Constitutes.</p> <p>A single contract made by a corporation owning mining ground in a territory, by which it employs and agrees to pay a second party to exploit and develop the property, does not constitute a carrying on of business in the territory by the corporation, within the meaning of a statute requiring foreign corporations carrying on business within the territory to file copies of their articles of incorporation, and providing that every act done by them prior to the filing thereof shall be void; and such statute does not affect the validity of the contract.*</p> <p>3. Mining Claims — Effect of Mistake as to Direction of Lode.</p> <p>Under the rule that where a lode mining claim Is located across, instead of along, the vein, the original side lines become end lines, and the end lines side lines, the owner is entitled to all the rights with reference to, the new side lines that he would have had if they had originally been located as such, including the right to follow the dip of a vein having its apex within the surface boundaries of his claim beyond the vertical plane passing through such lines.</p> <p>4. Estoppel — Contract Made under Mistake.</p> <p>Defendant, the owner of a mine, contracted with plaintiff, which owned an adjoining claim, to extend its workings into such claim, for a stipulated price, for the purpose of exploiting and developing the property, and agreed that, should any marketable ore be taken therefrom in the course of such development, it would sell the same, and account to plaintiff for the proceeds. Seldt, that defendant was not estopped by such contract from claiming the proceeds of ore so removed and sold as its own, where, in making the development, it discovered that the vein from which it took such ore had its apex within the lines of its own claim, and the ore was,, therefore, its own property. 1</p>

<p>1. Arrest or Judgment — Grounds or Motion.</p> <p>A motion in arrest of judgment will not lie for an error in the admission of evidence, the evidence being no part of the record, for the purposes of such motion.</p> <p>2. Witnesses— Cross-Examination— Contis amotion by Prior Statements.</p> <p>It is within the discretion of a court to permit a witness, called by the plaintiff and recalled by defendant, after he has entered upon his defense, after having been asked a question relating to a matter of defense which he answers adversely to the defendant, to be interrogated by defendant, with the lafcilude of cross-examination, to lay the foundation for the admission of prior contradictory statements, and also to admit such statements, for Hie pui-pose of showing the bias of the witness.</p>

<p>1. United States — Work on Government Buildings — Claims for Extras.</p> <p>Under Rev. St. §§ 3714, 3744, as amended by 20 Stat. 30, and Army Regulations, par. 825, providing that all contracts for extras in the construction of government buildings shall he in writing, and made under the direction of the chief officer of the war department, and that no expenditure of over $500 shall he made without the approval of the secretary of war, no recovery can he had by a contractor for extra work for items which were never the subject of any agreement, nor authorized by the officer in charge as extras, nor submitted by him to the war department.</p> <p>3. Same — Damages for Delay to Contractor.</p> <p>Damages cannot be recovered of the government for delay caused a contractor, in the performance of his work «pon a government building, by reason of a contractor on another branch of the work failing to finish his work on time, where the latter was prevented from finishing his work by delays in the work of the party claiming damages.</p>

<p>On Motions by Defendant to Quash the Returns of Service.</p>

<p>Bankruptcy — Intervention on Trustee in Pending Suits — Conclusivenrss op Judgment.</p> <p>Pending an action in a state court of competent jurisdiction for the foreclosure of mechanics’ liens on certain property, and the determination of the priorities of various claimants, one of the lienors was adjudged bankrupt. His trustee, when appointed, procured himself to he substituted for the bankrupt in the pending action, adopted the pleadings filed by the bankrupt, and took part in all subsequent proceedings, raising no objection to the jurisdiction of the court. The state court, having rendered a judgment determining that the bankrupt’s lien was subordinate to those of other claimants, and the property having been sold thereunder, held, that the trustee was hound by such judgment, and the court of bankruptcy would not, at his instance, enjoin the state court’s officer from distributing the proceeds of the sale in accordance with the judgment.</p>

<p>In Bankruptcy.</p>

<p>1. Customs Duties — Classification—Scientific Instruments.</p> <p>Paragraph 585 of the tariff act of 1894, which permits the free importation of “philosophical and scientific apparatus, utensils, instruments, and preparations” for certain uses, among others for the use of institutions incorporated or established for educational or scientific purposes, is entitled to a liberal 'construction, the exemption having in view the highest interests of the public, and being onfe which has been made, in some terms, in every customs act. The addition in the later statutes of the word “scientific” to the word “philosophical,” which was used alone in the earlier enactments, must also be held, under general rules of construction, to have broadened tlie exemption. Surgical instruments, designed and adapted for use in practical surgery, are scientific instruments, and within the exemption, when specially imported in good faith by a general hospital, maintained, among others, for educational purposes, for use in its clinics and (.raining school for nurses.</p> <p>2. Same.</p> <p>It is immaterial that the act of incorporation of such hospital did not specifically recognize or provide for its educational features, but that the same were of subsequent growth.</p>

In the matter of the application of the collector of customs at Baltimore, Md., for a review of the decision of the board of United States general appraisers as to the rate of duty on certain tennis jackets imported by Frederick Heineman per steamship Yedamore, April 4, 1898.

This was an application by the United States for an order for the removal of the defendants, Benjamin I). Greene, John F. Gaynor, William T. Gaynor, and Edward H. Gaynor, to another district, for trial on a criminal charge.

<p>1. Contempt — Power to Punish — Construction of Statute.</p> <p>Rev. St. § 725, giving “said courts” power to punish, hy fine or imprisonment, contempts of their authority, refers to the courts established under the preceding section of the act, viz. the circuit and district courts.</p> <p>2. Same — Answer of Defendant.</p> <p>A party charged with contempt, except where it is willful, may purge himself hy a disclaimer of disrespect or contempt of the court or its process; but whether a party answering such charge is guilty of a willful contempt, or has properly purged himself thereof, is a question for the court.</p> <p>S. Same — United States Commissioners.</p> <p>While a United States commissioner is a part of the court appointing him, and will be protected in the exercise of his powers as such officer, he has not the power to punish for contempt, and disobedience to his authority should be reported to the court appointing him.</p> <p>4. Same — Misconduct of Deputy Maushat, — Sufficiency of Answer.</p> <p>In a response to a card from a United States commissioner, complaining' ol‘ tlie failure to serve a warrant, a, deputy marslial wrote tlie commissioner: “ATour pert card to hand. I will have to tell my self-adopted boss, ‘Study your official duties, and let your warrants come through the proper channel.’ Are you aware that there are other commissioners in my district, and that deputy marshals are under the United Sxates marshal’s orders, and not under Air. D.’s?’ Upon a rule to show cause why he should not bo punished for contempt, the deputy marshal appeared, and answered that his failure to serve the warrant was because it had not been docketed in the marshal’s office, as required by the regulations of the department of justice, his instructions not to execute criminal warrants until so docketed, and his absence from home on official business, under the instructions of tlie marslial of the district; that tlie card was written while smarting under the threat of the commissioner to report liim for nonperformance of duty; that he regretted writing the same, and withdrew any reflection or intention of being disrespectful or disobedient to the court or its orders. Helé, that the answer was sufficient to purge the officer of contempt</p>

<p>This was a proceeding- on, a writ of habeas corpus issued on petition of Rafael Ortiz and the return thereto.</p>

<p>.PATENTS — IKKBINGKM'KNT—DBSIGX FOR TRIMMING.</p> <p>The Byrain design patent, No. 23,880, for a design for trimming for ladies’ underwear, considered, and held not infringed.</p>

The bill charged infringement of three letters patent (Nos. 501,587, 542,349, and 560,509) issued to Amos II. Perkins, — the first for a method, and the other two for apparatus, for repairing asphalt pavement. The second was dismissed out of the case. The last the court adjudged valid and infringed, but declared the method of the first unpatentable, because anticipated by the French patent, (No. 137,208) issued on June 11, 1880, to Paul Crochet. 96 Fed. 235.

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>Tho rule that the validity of a patent must be clearly shown by the proofs to warrant the granting of a preliminary injunction in a suit for its infringement, unless supported, by public acquiescence or prior adjudication, applies also to the question of infringement; and, although the validity of the patent has been established by prior adjudications, unless they also cover the issue as to infringement, the proof ol' infringement must be clear, or the injunction should be denied.</p> <p>2. Same — Effect of Prior Decisions.</p> <p>In patent cases the decision of the circuit court of appeals of another circuit upon final hearing should be followed with respect to the Issues determined if based upon substantially the same state of facts, although the defendants are not the same, or in privity, unless it clearly appears that there was manifest error; especially where such decision has stood for a number of years.</p> <p>3. Same — Infringement---Storage Batteries.</p> <p>The Brush patent, No. 337,29!), for improvements in secondary batteries, claim 3. is sufficiently brosd to cover any secondary battery which consists of metallic plates, layers of active material, and a mechanical support, -which gives electrical contact between them, and is infringed by a battery in which the active material is first, cemented to the surfaces of nonconducting porous battery plates, and then brought in contact with the surfaces of the lead plates, and there held.</p> <p>4. Same — Decretal Orders in Suits for Infringement.</p> <p>Complainants in patent cases must be careful to limit their decrees ar.d decre'.al orders to precisely what was determined by the court, under penalty of being subjected to costs on appeal therefrom.</p>

This case comes before this court on appeal from an order of the circuit court, Northern district of New York, refusing to dissolve a preliminary injunction theretofore granted, restraining the defendants from the alleged infringement of claim 2 of United States letters patent to Albert G. Mead', No. 325,480, September 1, 1885, for improvement in buttons.

<p>1. Collision — 8ait,ittg Bulks — Change of Course.</p> <p>A variation of half a point in a sailing vessel closohauled or hove to,— in which case she is regarded the same as a vessel under way and close-hauled, — does not constitute a change of course, within the rule requiring a privileged vessel to maintain her course.</p> <p>2. Same — Steamer and Sailing Vessel.</p> <p>The fact that a schooner had no one at the helm, which was lashed, or that she was insufficiently manned, cannot he held a fault contributing to a collision with a steamship in a fog at night, when in any event it would have been her duty to keep her course, and she did this.</p> <p>3. Review — Appeal—Question of Fact.</p> <p>The circuit court of appeals is not, bound by a finding of fact made by the court below in an admiralty ease, but it is its duty, under the statute giving the right of appeal, to determine such question in accordance with the convictions formed from the record by the judges sitting on the appeal.</p> <p>4. Collision — Steamer and Sailing Vessel — Contributory Fault.</p> <p>The rule applied that where a steamer was confessedly and grossly in fault for a collision with a schooner, by reason of her excessive speed in a fog at a place where she had reason to apprehend danger, any doubts a» to fault in the schooner contributing to her injury will he resolved in her favor.</p> <p>Aldrich, District Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska. E. N. Prout, Alfred Hazlett, and Alburtus H. Kidd, for plaintiff in error.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p>

<p>In Error to the Circuit Court of the United States for the District of South Dakota.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p>

<p>In Error to the Circuit Court' of the United States for the Western District of Missouri.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Iowa.</p>

<p>Appeal from the Circuit Court of the United States for the Southern Disiriet of Town.</p>

<p>Tn Error to the Circuit Court of the United States for the Southern District of Iowa.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p>

<p>Appeal from (he Circuit Court of the United States for the District of Massachusetts.</p>

<p>In Error to the Circuit Court of the United States for the District of South Dakota.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p>

<p>In Error to the Circuit Court of the United States for tlie Southern District of Ohio.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.</p>

<p>Appeal from the Circuit Court of the United States for the District of North Dakota.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p>

<p>In Error to the Circuit Court of the United States for the District of South Carolina.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts. In Bankruptcy.</p>

<p>Appeal from the Circuit Court of the United States for -the District of Colorado.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of North Carolina!</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

<p>In Error- to the Circuit Court of the United State3 for the Eastern District of Arkansas.</p>

<p>' In Error to the District Court of the United States for the Eastern District of Pennsylvania.</p>

<p>Appeal from the Circuit Court of the United States for the 'Southern District of Ohio.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p>

<p>In Error to the District Court of the United States for the District of Oregon.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p>

<p>In Error to tbe District Court of tbe United States for tbe Northern District of New York. Writ of error to review decision of district court, Northern district of New York, reversing an order of deportation of defendant made by United States commissioner.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p>

<p>Motion to stay the taking of testimony in an equity case.</p>

<p>On motion to punish for contempt for disobedience of injunction upon final decree.</p>