Volume 101 — Federal Reporter

<p>Removal or Causes — Federal Question — Action against Federal Receiver.</p> <p>An action in a state court against the receiver of a railroad to recover damages for a personal injury resulting from alleged negligence in the operation of the road is not removable, as a case arising under the constitution or laws of the United States, solely on the ground that the receiver was appointed by a federal court. The liability which is the subject-matter of the action is one arising under general law or state statute, and not dependent on the constitution or any law of the United States; and the appointment of the receiver was, moreover, made under general equity powers common to all courts of chancery.2</p>

<p>In Equity. In the matter of the petition of Laura J. Martinez.</p>

<p>1. Usury — What Law Governs — Place of Payment.</p> <p>Parties to a loan by a corporation of one state to a .resident of another, to be paid to the borrower in his own state, and secured by mortgage on real estate there situated, will be presumed to have contracted with reference to the laws of the state of the lender, where repayment of the principal of the debt is to° be there made; and the .question whether the contract is usurious is to be determined by the law of that state, especially if, under such law, it is valid, while under the law of the state of the borrower it is invalid.</p> <p>2. Pleading — Allegation of Conclusion.</p> <p>An allegation in a pleading that a provision in a contract making a loan payable in the state of the lender instead of that of the borrower was a mere device to evade the usury laws..of the latter state must state the ' facts from which such conclusion may be deduced.</p> <p>S. Building and Loan Associations — Usury—New York Statutes.</p> <p>Under the statute of New York governing building and loan associations, the taking of premiums for loans made by such associations does not render the loans usurious.</p>

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

In Equity. On motion of complainants for a decree pro confésso on the ground that a motion to dismiss (treated as a plea in abatement), filed after answer, waived answer.

<p>1. Constitutional Law — Impairment of Obligation of Contracts — City Ordinance.</p> <p>An ordinance adopted by a city under assumed authority from the state which impairs the obligation of a previous contract made by the city is the same in effect as a subsequent enactment by the state legislature, and is within the prohibition of the contract clause of the federal constitution.</p> <p>2. Municipal Corporations — Contracts—Ordinance Granting Fran cube to Light Company.</p> <p>A statute of Missouri (Laws 1891, p. 60) authorizes cities of the third class to erect, maintain, and operate gas or electric light works or water works, to supply light or water for public purposes, and for the use of the inhabitants of such city: “provided, that the council may, in their discretion, grant the right to any person or persons or corporation to erect such works * * * upon such terms as may be prescribed by ordinance: provided, further, that such right to such persons or corporation shall not extend for a longer period than 30 years, and shall not be renewed unless by the consent of a majority of the qualified voters.” » Acting under such statute a city passed an ordinance by which, “in consideration of benefits to be derived therefrom,” it granted to the assignors of a corporation the right to erect, maintain, and operate electric light works for a, term of 20 years, with such incidental rights as were necessary for the efficient operation of such works. The ordinance required the grantees to complete the works within a specified time; to erect poles to properly suspend street lights, if contracted for at any time by the city; to maintain a light at a railroad crossing, free of expense to the city; and fixed the limit of rates to be charged for lights. Held that, having adopted the alternative method of procuring light for the city and its inhabitants contemplated by the statute, it was an implied term of the contract, made by the acceptance of the ordinance, that, the city would not itself enter into competition with the grantee in supplying lights to private consumers during the term of the grant by means of a light plant erected under the powers conferred by the statute.</p> <p>3. Same — Impaibment oe Contract — Injunction.</p> <p>Where a city, having erected an electric light plant under an ordinance adopted pursuant to a vote, is proceeding to furnish lights to private consumers, in competition with a private corporation, and in violation of the implied terms of the fiianchise granted to such corporation, under which it had expended money in building works, the latter is entitled to an injunction against such competition as the only adequate remedy; and it is not precluded from such relief by the fact that, it did not object to the erection of the works by the city, when the ordinance under which they were built did not disclose ány intention on the part of the city to compete for private business, and no injunction is asked against the furnishing by the city of lights for public purposes.</p>

This was a suit in equity to compel the delivery of a life insurance policy, and to recover thereon, brought by the administrator of the insured.

<p>1. Insurance — Agreement for Arbitration — Setting Aside Award.</p> <p>The award of arbitrators appointed, in accordance with an agreement in a policy of insurance, to appraise a loss thereunder, is supported by every reasonable intendment and presumption, and will not be vacated unless clearly shown that it was made without authority, or was the result of fraud or mistake, or of the misfeasance or malfeasance, of the appraisers.</p> <p>2. Same.</p> <p>Where there are two methods by which the result may have been reached by arbitrators in making an award fixing the amount of a loss under an insurance policy, one of which was legal and authorized, and the other not, the presumption is that the legal method was followed.</p> <p>3. Same.</p> <p>The fact that an award made by arbitrators appointed under a provision of an insurance policy to appraise the amount of a loss thereunder was not made under oath, as provided in the policy, affords no ground for. a suit in equity to set aside the award.</p>

This cause comes here upon a writ of error by the United States, who were plaintiffs below, to review a judgment of the circuit court, Southern district of New York, in their favor, for $12, with interest and costs. The judgment was entered upon the verdict of a jury, which was inslructed by the court to render a verdict in favor of plaintiffs for $12, and which, as to the residue of the claim, brought in a verdict for defendants.

<p>Pledge — Construction of Contract — Settlement of Debt by Pledgee.</p> <p>Where bonds were transferred by the owner as security for payment by a railroad company of the purchase price of rolling stock, the instrument by which the transfer was made providing that, in ease of default, the rolling stock should be first sold, and the proceeds apnlied on the debt,' and the bonds should be held as secondary security to make good any deficiency remaining, the contract shows that the intent of the parties was to constitute a pledge, and not a mortgage, of the bonds, and the pledgee lost all right to sell the same by making a settlement by which it took back the rolling stock, and released the railroad company from further liaf ' bility. . •</p>

. The writ of error in this case is brought to review a judgment by default, which Mary J. Gilbert, the plaintiff below, the defendant in error here, recovered against the Travelers’ Protective Association, the plaintiff in error.

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

<p>On Petition for Rehearing.</p>

<p>1. Master and Servant — Injury of Servant — Safe Place to Work.</p> <p>A mining company, which erects a stuff or platform across a narrow and dark fissure in its mine, 70 feet from the bottom, on which its employes are required to work, is hound to the exercise of reasonable care to see that the timbers are of adequate strength and number, and securely fastened, to render it a safe place on which to work.</p> <p>2. Same — Action fob Death of Employe-Questions fob Juby.</p> <p>Plaintiff’s husband was killed, with other workmen, by the breaking and faffing of a stuff in defendant’s mine, on which he was working in stoping ore 70 feet from the bottom. The stuff was erected by defendant by placing lagging on timbers running across a fissure in which it was built, and supported in its sides, and was intended to be of sufficient strength to sustain the weight of 20 feet of earth and rock upon its top, although there was hut 9 feet in depth upon it -when it broke and fell. Ueld, that the fact of its falling under such circumstances was in itself evidence from which a jury might infer that it had not been properly constructed, and that, when taken in connection with the fact that a number of the cross timbers were broken in the middle, and with the testimony of two competent witnesses, who stated their opinions that the timbers were insufficient in strength or number to carry the load placed upon them, it could not be held, as matter of law, that defendant was not negligent, but the question was one for the jury.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>L Railroads — Actions for Fires — Questions for Jury. .</p> <p>In an action against a railroad company to recover the value of property alleged to have been set on fire by sparks from passing engines on defendant’s road, where the evidence as to whether the fire originated in the manner alleged was conflicting and indecisive, the case was one for the jury, and it was error to direct a verdict for defendant, especially when four successive juries before whom the case was tried had failed to agree.</p> <p>8. Same — Proof of Negligence — Presumption from Fact of Causing Fire.</p> <p>Proof that property has been destroyed by sparks emitted by a passing locomotive creates a presumption of negligence on the part of the railroad company or its employós, either in the construction or handling of the locomotive or in failing to keep it in proper repair.</p> <p>8. Same — Province of Jury.</p> <p>When the evidence for the plaintiff, in an action against a railroad company to recover damages resulting from a fire alleged to have been caused ,by sparks from a-passing engine, is sufficient to establish such fact, and thus creates a presumption of negligence on the part of defendant, the case should be submitted to the jury, unless the rebutting evidence as to due care is so clear and circumstantial that no reasonable person could doubt its verity.</p>

<p>1. Limitations — Action for Fraud — Colorado Statute.</p> <p>By a statute passed in Colorado in 1801 (Sess. Laws 1861, p. 341) it was provided that actions on the case should be brought within six years after the cause ol’ action accrued, and bills for relief on the grounds of fraud within three years from the time of the discovery of the fraud. In 1877 the state adopted a Code of Civil Procedure, by which the distinction between actions at law and suits in equity was abolished. Held, that the change in the form of adion did not affect the operation of the prior statute of limitations, but whether an action based upon fraud was governed by the limitation of three or six years depended on whether it was in substance an. action on the case or for equiiable relief.</p> <p>Si TRrAi-^AcTrow of Court — Misleading Remarks.</p> <p>An expression of opinion by the court on overruling a motion for a non-suit at the close' of plaintiff’s case, as to the nature of the action, which. was at variance with- the instructions subsequently given to the jury, and which'-may have misled the defendant to his prejudice in introducing his evidence, is ground for reversal of a judgment against the defendant.</p> <p>Thayer, Circuit Judge, dissenting.</p>

<p>Limitation— Actions against Stockholders — New York Statute.</p> <p>Tlie term “moneyed corporations,” as used in Code Civ. Proe. N. Y. § 394, which prescribes the limitation governing actions against directors and stockholders of moneyed corporal ions, if defined in accordance with the new corporation law of 1892, is broad enough to include a mortgage tmsl company of another state, authorized to issue and sell its debenture bonds secured by mortgages, if it does business within the state of New York.</p>

<p>In Error to tke 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 Utah.</p> <p>. The Toltee Ranch Company, the defendant in error, brought an action of ejectment against Brigham City, the plaintiff in error, to recover the possession of a quarter section of land. The city answered “that it did not claim or pretend to have, nor does it now claim, any right, title, or interest-of, in, or to the estate and premises described in the complaint,” except the parcel thereof covered by the reservoir, and pipes leading thereto and therefrom, embracing. “in all about ie/100 of an acre,” which was described by metes and bounds. The answer concluded with this disclaimer: “And this defendant does disclaim all right, title, and interest to the said lands in the said complaint mentioned, and every part thereof, excepting the aforesaid 10/io« of an acre covered by the Brigham City reservoir, and the pipes leading to and from said reservoir.” With.its answer'the defendant city filed what it termed a “cross complaint,”* in which it set out, in substance, that the city had erected a water reservoir on the 13/ioo of an acre, which reservoir was used for supplying the city and its inhabitants with water, and prayed that that parcel of the quarter section be condemned to the use of the city for that public use; and thereupon proceedings were had accordingly for that purpose, — presumably under some statute of the state authorizing them, — which resulted in the condemnation, to the use of the city for a site for its water reservoir and pipes, of the 13/ioo of an acre, as prayed for in the city’s cross complaint. The jury assessed the value of the 13/i0o of an acre at $1, and, the city having paid into court the $1 assessed as damages and the cost of the condemnation proceedings, the court rendered this judgment of condemnation: “Now, therefore, it is considered, ordered, and adjudged by the court that the hereinafter described property be, and the same is hereby, condemned to the use of said defendant for the purpose of a reservoir and pipe line; and that of the said property so sought to be condemned the fee-simple title of the following land for a reservoir site, to wit [here follows a description of the 15/ioo of an acre], be, and the same is hereby, devested of and from the said plaintiff, the Toltec Ranch Company, and forever vested in said defendant, Brigham City, for the uses and purposes aforesaid.” In the main action judgment was rendered for the plaintiff for the quarter section of land, less the *3/ioo of an acre condemned to the use of the city for its water reservoir. There is in the record a stipulation of facts relating to the title of the quarter section, and which was intended to raise the question of law whether upon this agreed statement of facts the Central Pacific Railroad Company acquired title to this quarter section of land under the act of congress granting lands to that company to aid in the construction of its road, or whether the land still belongs to the United States. The railroad company conveyed the land to the plaintiff. The lower court, upon the stipulated facts, decided the title to the land was in the plaintiff as the grantee of the railroad company, and rendered judgment accordingly, and thereupon the city sued out this writ of error. The proceedings to condemn to the city’s use for the purposes of a reservoir the ib/10o of an acre were taken upon the petition of the city, and for its benefit, and it paid the damages assessed, and .the costs of the proceedings, and is not here complaining of those proceedings, and assigns no error upon them. The sole error assigned and counted upon is that the court erred in refusing to instruct the jury as matter of law that the land in dispute was public land of the United States.</p>

<p>Assignment — Validity—Persons Entitled to Attack.</p> <p>The validity of an assignment of a chose in action cannot be attacked by the debtor in an action thereon by the assignee on the ground that it was in fact an assignment for the benefit of creditors, and void, as such, because of a failure to comply with statutory requirements, as, conceding the facts alleged to be true, the assignment is voidable only, and subject to attack only by creditors of .the, assignor.</p>

On April 22, 1896, the defendants in error, John T. Gordon, Hattie Gordon •Ralston, Malcomb Musgrave, and Julia M. Sargent, brought an action of ejectment against William N. Young for the possession of the W. % of section 11, township 2 S., of range 9 W., in Lonoke county, in the state of Arkansas.

<p>Municipal Corporations — False Imprisonment — Invalid Ordinance.</p> <p>Where a municipality acts in good faith, without malice, in the arrest of one charged with violating an ordinance, it is not liable in damages, although the ordinance be invalid.</p>

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

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Exemptions—Following State Decisions.</p> <p>On the question of the right of the individual members of a bankrupt firm to have set apart to them, out of the partnership assets, the exemptions allowed by the law of the state, the court of bankruptcy will follow the rule established by the decisions of the highest court of the state, if any such have been rendered.</p> <p>2. Same — Partnership Assets.</p> <p>In the absence of any decision of the state courts allowing partners to claim exemptions out of the firm property, held, that in ease of the bankruptcy of a partnership, where there is partnership property, but no individual assets, the members of the firm are not entitled to have any portion of the firm property set apart to them as their individual exemptions, unless there should remain a surplus of such property after the payment of all firm debts.</p>

<p>1. Bankruptcy — Preferences—Sale of Property.</p> <p>The title of one who purchases property from an embarrassed debtor cannot be impeached by the latter’s trustee in bankruptcy, subsequently appointed, on the ground that the purchase was made for the purpose of enabling the debtor to pay some of his creditors in preference to- others, in fraud of the bankruptcy law, the proceeds having been so used, when the sale and the payments to creditors occurred more than four months before the filing of the petition in bankruptcy.</p> <p>2. Same — Fraudulent Conveyances.</p> <p>One of two partners, for an adequate consideration in cash, purchased from the other the lalter’s interest in certain property which had been bought with receipts of the business, and was used in connection therewith, and a release from the contract of partnership. The vendor remained in the active conduct o-f the business, but on a salary, and retained the possession and use of the property, no bill of sale being recorded nor other notice given of the change of title. More than four months thereafter the vendor was adjudged bankrupt. Held, that the purchaser’s title was good as against the trustee in bankruptcy, and he was entitled to recover possession of the property.</p>

<p>Bankruptcy — Attorney’s Eee.</p> <p>Where the attorney of a voluntary bankrupt files his claim for fees for professional services rendered to the bankrupt, but the referee is not satisfied with the evidence introduced by the attorney as to the amount which should be allowed, he has power to suspend action on such claim for a reasonable length of time, in order to procure the testimony of the bankrupt in relation thereto; but if it is then impossible to. secure such evidence, in consequence of the bankrupt having- left the Jurisdiction, the referee should decide the question upon such evidence as is before him.</p>

<p>Customs Duties —Classification—Statuary.</p> <p>Carved figures or statues in wood, made by a professional statuary or sculptor from designs made by another professional statuary or sculptor, shown by full-sized drawings, in the making of which statues it was, necessary to first model them in clay, and then take a plaster cast, from which the work in wood was done, are “statuary,” entitled to free entry, under paragraph 575 in the free list of the tariff act of 1894, and are not dutiable as manufactures of wood, under paragraph 181.</p>

John McCarty, the plaintiff in error, was indicted jointly with one John Brown, for passing counterfeit silver half dollars and dollars, and for having in his possession, with intent to pass, counterfeit silver dollars and nickels, and for having in his possession molds for coining counterfeit silver dollars.

This was a proceeding by writ of habeas corpus by See Ho How, a ‘ Chine.se laborer detained under an order of a commissioner for his deportation.

This is a case of “unfair competition” and was before this court upon an appeal from an order of the circuit court which denied a motion for an injunction pendente lite. The case proceeded to final hearing upon full proofs, and the bill was dismissed. From the decree of dismissal this appeal was taken.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here lipón appeal from a decree of the circuit court, Southern district of New York, dismissing the bill. 97 Fed. 804.</p>

<p>Patents — Prior Patent fob Same Invention — Trolley Railways.</p> <p>The Vaa Depoele patent, No. 495,443, for a traveling contact for electric railways, is rendered invalid hy patent No. 424,095, previously issued to the same inventor for precisely the same devices, the only difference being that the earlier patent states an additional function to be performed hy one of The elements.</p>

<p>Patents — Infringement—Cigar-Tip Cutters.</p> <p>The Campbell patent, No. 533,207, for a cigar-lip cutter, discloses invention, and is valid. Claim 4 also held infringed by a cutter made under the Brunhofl: and Lehmann patent, No. 567,277.</p>

<p>1. Patents — Validity—Lever Buckles.</p> <p>Tbe Wales patent, No. 172,527, for an improvement in lever buckles, was not anticipated, and is valid as to claims 1, 2, and 3.</p> <p>2. Same — Infringement—Profits Recoverable.</p> <p>An infringer is liable for tbe entire profits made by tbe manufacture and sale of an article containing tbe patented device, where it appears that, but for tbe, patented feature, tbe article would not bave been salable.</p>

<p>1. Patents — Suits for Infringement — Preliminary Injunction.</p> <p>The owner of a process parent is not entitled to a preliminary injunction, in a 'suit for infringement, restraining the defendant from vending articles made in infringement of the patented process.</p> <p>3. Same — Process—Incandescent Mantles.</p> <p>The Itawson patent, No. 407,963, for the production of incandescent mantles, is for a process, and not for a product.</p>

<p>- Seamen — Suit for Wages — Grounds Justifying Discharge.</p> <p>Libelants were duly signed as seamen before a proper officer by an authorized agent of the master of a schooner, and on the next day were taken on board by the agent, and were recognized by the mate as members of the crew, but, with the remainder of the crew, were ordered ashore and discharged by the master a few minutes later, and before the voyage was commenced. Held, that on such facts the burden rested upon the vessel, in order to defeat the claim of libelants to a month’s wages under the statute, to justify their discharge, which could only be done by showing that they were disqualified for seamen, or an act of disobedience of an aggravated character.</p>

<p>In Admiralty. Suit by seaman to recover wages.</p>

<p>Tn Admiralty. Suit in rem for personal injuries to a stevedore.</p>

<p>1. Shipping — Damage to Cargo — Delay in Preparing’ Vessel for Loading.</p> <p>A contract of-affreightment becomes effective, so as to render the carrier liable for its breach, only from tbe time the goods are delivered for shipment; and the owner of a cargo has no lien upon a vessel for injury to such cargo resulting from delay in preparing the vessel for loading which occurred, before the cargo was received by tbe owners or tbeir agents.</p> <p>3. Same — Contract of Affreightment with Charterer — Liability of Ves-</p> <p>sel for Breach.</p> <p>Neither a vessel nor her owner is liable for a breach of a contract for the carriage of a cargo, between tbe charterer and a shipper, occurring before any part of the cargo had been put on board.</p> <p>8. Same.</p> <p>A ship is answerable for any negligence that causes damage to a cargo after it has been-placed on board under a contract of affreightment between tbe shipper and a charterer, and a suit to enforce such liability may be maintained by the shipper directly against the vessel; but she cannot be held liable for damage resulting from delay due to- the condition of the weather, and not to any negligence in her navigation.</p> <p>4. Same — Construction of Charter.</p> <p>A vessel was described in a charter as a water-ballast ship, and was so accepted without objection by tbe charterer, who contracted to carry in her a cargo of cattle.' The shipper desired to load a number of the cattle on the deck, which was refused by the master on the ground that it would be unsafe, with the ballast the ship carried. Held, that he could not be required to provide additional ballast, nor could tbe ship be beld liable for his refusal to load the cattle as required by tbe shipper; it being shown that his objections were well founded, and there being no provision of tbe charter specifically requiring the vessel to take a deck cargo, or to carry any specific number of cattle.</p>

<p>Couiiision — Febbyjgoat ajíd Tug — Evidence Cojísidebed.</p> <p>Evidence held, to place the fault for a collision between a ferryboat passing out of her slip in North river and the tow of a tug passiug down the river upon the tug, for coming down so near the piers that the vessels could not see each other until Immediately before the collision, on account of the obstruction of the view by a shod on one of the piers.</p>

In Equity. On demurrer to bill for multifariousness, in charging infringement of two separate patents, not alleged to be used conjointly.

<p>1. Appeal — Injunction—Supersedeas.</p> <p>A decree granting an injunction is not superseded by an appeal from tbe decree, even though all the requisites for a supersedeas be complied with. Hovey v. McDonald, 3 Sup. Ct. 133, 109 U. S. 161, 27 L. Ed. 888; Leonard v. Land Co., 6 Sup. Ct. 127, 115 U. S. 408, 29 L. Ed. 445- Knox Co. v. Harshman, 10 Sup. Ct. 8, 132 U. S. 14, 33 L. Ed. 249.</p> <p>2. Same.</p> <p>A court rendering a decree granting an injunction has the power, if the purposes of justice require it, to order a continuance of the status quo until a decision shall be made by the appellate court, or until that court shall order the contrary, and the power should always be exercised when any irremediable injury may result from the effect of the decree as rendered. Hovey v. McDonald, 3 Sup. Ct. 130, 109 U. S. 161, 27 L. Ed. 888; Leonard v. Land Co., 6 Sup. Ct. 127, 115 U. S. 408, 29 L. Ed. 445.</p> <p>3. Same.</p> <p>So long as an appeal remains unperfected, and the cause has not passed into the jurisdiction of the appellate tribunal, it continues subject to the general power of the circuit court over its own judgments, decrees, and orders during the existence of the term at which they are made. Smelting Co. v. Billings, 14 Sup. Ct. 4, 150 U. S. 31, 37 L. Ed. 986; Goddard v. Ordway, 101 U. S. 752, 25 L. Ed. 1040.</p> <p>4. Judgment — Vacating. v</p> <p>During the term at which they are made, the judgments, orders, and decrees of courts are under their control, and may be set aside or modified, as law or justice may require. Ex parte Lange, 18 'Wall. 103, 2.1 L. Ed. 872.</p> <p>5. Same — Act to Regulate Commerce.</p> <p>Xlie sixteenth section of the act of February 4, 1887 (24 Stat. c. 101), to regulate commerce, as amended by the act of March 2, 1889 (25 Stat. e. 382), under which resort to the circuit court can be had for the enforcement of lawful orders or requirements of the interstate commerce commission, provides that, “when the subject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the supreme court of the United States, under the same regulations now provided by law in respect of. security for such appeals; but such appeals shall not operate to stay or supersede the order of the court, or the execution of any writ or process thereon.” Railroad v. Behlmer, 1(59 U. S. 645, 42 L. Ed. 889. Said provision of the act to regulate commerce relates only to the effect of an appeal, and it does not deprive the circuit courts of their right of control over their own decrees during the term at which they are rendered, and before an appeal is prayed.</p>

<p>In Equity. Bill by J. A. Newton, administrator, and others, against the Eagle & Phenix Manufacturing Company. On demurrer to the intervention of J. W. Johnson and others.</p>

Statement of the pleadings as given by appellants: Henry B. Fischer, Bernardo F. Fischer, Adolpho H. Fischer, and T. Tasso' Fischer, partners doing business under the firm name of J. & O. Fischer, filed their bill in the United States circuit court for the Southern district of Florida against A. B. Campbell and the A. B. Campbell Land & Loan Company, a corporation under the laws of Florida, alleging that on December 14, 1895, Charles S. Fischer held four notes, aggregating…

' . * On December 19, 1898, Dula M. Rachal, joined by her husband, E. R. Rachal, J. W. Baylor and his wife, Emma E. Baylor, and J. D. Willis, filed their ancillary bill against the appellees, Francis Smith and S. G. Borden, praying for .an injunction to restrain the appellee Smith from executing a judgment at law for lands rendered on December 7, 1898, in the case of Francis Smith against E. R. Rachal et al. On January 2&, 1899, the plaintiffs, by leave of the court, filed…

.Appeal from the Circuit Court of the United States for the Southern District of New York. Action by Sarah J. Kendall against Robert N. De Forest, individually and as trustee, etc., and the New York Life Insurance & Trust Company, to enforce payment of an annuity. From a decree in favor of complainant, defendants appealed.

. In. Error to. the Circuit Court of the United States for the District of. Nebraska. The state of Nebraska, by and through her state treasurer, deposited in the Capital National Bank of Lincoln, Neb., in money which belonged to the state, the sum of $285,351.85, and took from the bank certificates of deposit for the sum, payable to the state treasurer in his official capacity. The incumbent of the office of treasurer of state was changed from time to time.

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>On the 23d day of January, 1893, the Capital National Bank of Lincoln, Neb., failed, and on the 6th day of February, 1893, the comptroller of the currency appointed a receiver for the same. On the 10th day of June, 1893, the comptroller ordered an assessment on the stockholders of the hank to the amount of the par value of the shares, payable July 10, 1893. This suit in equity was brought on the 20th day of May, 1898, by Kent K. Hayden, as receiver of. the bank, the predecessor in office of the present receiver and appellant, against David E. Thompson, the appellee, as a shareholder in the hank, to recover the amount assessed upon his stock by the order of the comptroller of the currency. The bill alleged the defendant had, in anticipation of the failure of the hank, fraudulently transferred his shares to persons financially irresponsible, for the purpose of escaping his liability as a stockholder. The defendant demurred to the hill and to an amended bill upon the ground, among others, that the cause of action was barred by the statute of limitations of the state of Nebraska. The court sustained the demurrer, and dismissed the bill, and thereupon the receiver brought the case by appeal to this court.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>On the 6th day of April, 1889, the appellee the Farmers’ Loan & Trust Company, trustee for the holders of the first mortgage bonds executed by the Houston & Texas Central Railroad Company, filed its bill in the circuit court against the railway company to foreclose the first mortgage executed by it June 16, 1873, on the Waco & Northwestern Division, and for the appointment of a receiver. Agreeably to the prayer of the bill, a receiver was appointed; and on March 1C, 1892, a final decree was rendered, foreclosing the mortgage and ordering a sale of the property. The railway and other property described in the decree were sold, conformably to the order of the court, December 28, 1892, and upon' confirmation' of the sale by the court a deed was tendered to the purchaser. This deed the purchaser declined to accept, and a controversy resulted, which eventually culminated, March 5, 1895, in an amendatory final decree setting aside the sale, relieving the purchaser of his bid, and ordering a resale of the property. In pursuance of the decree as amended, the property was again offered for sale on September 3, 1895, when it was purchased by the appellant, and the sale was thereafter duly confirmed. Upon presenting a petition praying for further time to comply with his bid, the court, on October 22, 1895, made an order granting the extension “until such time as shall be fixed by further order of the court, or a judge thereof, after reasonable notice to such purchaser.” The appellees Moran. Bros, and MeHarg on March 18, 1897, and the Farmers’ Loan & Trust Company on August 19, 1897, filed petitions to require the appellant to pay the remainder due on his bid and take fho property. On the 7th day of .Tune, 3897, the appellant filed a petition claiming the net earnings of the property accruing subsequent to the confirmation of the sale, to wit, on the 21st day of October, 1895. Issue, was joined upon the matters contained in the several petitions, and upon tlie hearing of the appellant’s petition the court denied his right to the earnings claimed. Upon the hearing of the petition filed hy the appellees, and the master’s report made thereon, an order was passed requiring the appellant to comply with his hid, by the payment of the purchase money clue on the 13th day of December, 1897. Appeals were taken from these orders. This court affirmed the order of the circuit court denying the right of tlie appellant to the earnings o-f the railway property accruing subsequent to his purchase, and made an order requiring the appellant to comply with his bid on ihe 1st day of July, 1898. Boyle v. Trust; Co., 82 O. O. A. 142, 88 Fed. 930. The receiver continued in charge of the properly until the 80th day of June, 1898, when the appellant, fully complied with his bid, • by paying the remainder of the purchase money, and received from the master commissioner a deed conveying to him the property. Possession was Immediately surrendered by the receiver to the appellant. While the former was in possession of the property, he rendered it. for taxation, in obedience to the laws of Texas, for the year 1898. The taxes, state and municipal, due for that year, and which did not become payable until October 1st, amounted to more than 84,000. The receiver, after surrendering possession of the proporty, refused to pay the taxes, although having In his charge funds amply sufficient for the purpose. The appellant thereupon, on the 10th day of November, 1898, filed a petition to require the receiver to pay Ihe taxes so due and unpaid for the year 1898. This claim on the part of (.lie appellant was resisted by the appellees, who, among other tilings in their defensive pleadings, denied the right of the appellant to maintain the suit, because of a want of interest in the subject-matter. The following stipulation of counsel was considered by the court upon the hearing of the matter at issue: “First. That Alfred Abeel, the receiver in said cause, had rendered all said properly for taxation for the year 1898, as required by the laws of Texas, prior to the 1st day of June, 1898; that said receiver had not paid, and would not pay, unless directed so to do by the court, the said taxes, or any part thereof: and that the stale, county, and municipal taxes on said property for said year exceeded four thousand dollars. Second. That alter the payment hy him of the balance of his bid, and the'delivery to him of a deed convoying, all and singular, the said property to him, as shown by tlie report of Alfred Abeel filed In said cause on July 6, 1898, ihe said Wilbur F. Boyle conveyed the railroad and property appurtenant thereto so purchased hy him to the Houston & Texas Central Kailway Company, and conveying the lands purchased hy him, and not appurtenant to said railroad, to Thomas H. Hubbard; the said conveyances being In pursuance of the arrangement under which he purchased said property; said purchase being for account of said transferees, — that is, the purchase was made for the Pacific Improvement, Company, who was acting for said railway company in making the purchase.”</p>

<p>1. Railroads — Negligence—Personal Injury to Employe — Proximate Cause —Evidence—Question for Jury.</p> <p>Plaintiff’s intestate, who was employed as switchman in defendant’s yard, having occasion to couple two cars, on one of which the drawbar was higher than on the other, making it difficult to couple the same with a straight link, went in between the cars, and, having completed the coupling, attempted to step out from between the cars onto the planking in the highway crossing, but the planks were so uneven that his foot caught or slipped thereon, and he was thrown under the ears. As ho slipped, decedent grasped the grab iron, and endeavored to jump out from, under the car, and was about to accomplish this, when his Coot slipped into a hole between the ends of two ties, and he was run over by the cars and killed. Held, that the court properly left it to the jury to determine whether the condition of the plank at the crossing was the proximate cause of the injury.</p> <p>2. Same — Contributory Negligence — Coupling Moving Cars — Instructions.</p> <p>There being evidence that the deceased had succeeded in making the coupling, and would have stepped out, from the moving train but for the presence of the upturned plank, upon, which he stumbled and partially fell, and there being no proof tending to show that deceased knew of, or had reason to anticipate, the defect in the crossing, the court properly left it to the jury to determine whether the intestate was guilty of negligence that contributed to the injury, under an instruction that, if deceased knew of the defect in the crossing, and that it was more dangerous to couple moving -cars under such circumstances, and had power to cause the cars to come to a stop before making the coupling, and, notwithstanding such knowledge, made the coupling while the cars were moving, he was guilty of contributory negligence, and his representatives could not recover.</p> <p>S. Same — Repair of Crossing — Notice of Defects.</p> <p>It appearing that the crossing where plaintiff’s intestate slipped had been out of repair for some time prior to the accident, the court properly left tlie question of defendant’s negligence in that regard to the jury, under an instruction that it was the duty of defendant to keep the crossing in a. reasonably safe condition for the use of its employes, and that, if it had been out of repair for several days before the accident, and defendant’s attention had been called to it, and it failed to repair it, the company would be guilty of negligence.</p> <p>4. Same — City Ordinance — Defense.</p> <p>Defendant having put In evidence a city ordinance prohibiting it from using the crossing where plaintiff’s intestate was injured for the storage of cars, and from permitting loaded and unloaded ears to stand thereon, the court properly instructed the jury that defendant could not plead its obligation thereunder as a defense to an action for an injury to one of its employes, caused by its failure to keep the crossing in repair.</p> <p>B. Trial — Instruction as to Verdict</p> <p>A charge to the jury that, if they find on the issues therein in favor of the plaintiff, the court would “accept a reasonable and fair verdict as a proper settlement of the controversy,” while possibly prejudicial to the plaintiff, is not open to objection by defendant as taking from the jury •• ■ ■ their power to pass upon the facts in the ease under the instructions of the court.</p>

<p>In Error to 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 Eastern District of Texas,</p>

<p>I. Statute of Frauds — Memorandum—Names of Purchaser and Seller.</p> <p>A memorandum of sale by C. & Co., acting as selling agents of M. S. Co., to X H. S. & Son, sufficiently describes the purchaser and seller, under 3 Burns’ Rev. St. Ina. 1894, § 0635, providing that no contract for the sale of any goods over $50 in value shall he valid unless some note or memorandum is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.</p> <p>■2. Same — Description of Property— Definiteness.</p> <p>Where a memorandum of sale stated that the size of steel billets to be delivered should he 4"x5” or 5"x5", the seller had the option to deliver either size, and hence a memorandum was not objectionable for indefiniteness.</p>

<p>At Law. On motion to remand to state court.</p>

<p>1. Trial — Correction of Verdict.</p> <p>The -only method of obtaining the correction or modification of a verdict for an error in law, where no exception was taken at the time of its return, is by motion to set it aside or for a new trial, which, under rule SO of the circuit court for South Carolina, must be made within two days after the verdict is rendered, unless the time is extended by the court.</p> <p>2. Pleading — Amendment after Verdict.</p> <p>Under Code Civ. Proc. S. C. § 194, adopted as a rule of the circuit court in that state, which authorizes the .court, before or after judgment, in furtherance of justice, to amend any pleading, where a verdict in an action on municipal bonds includes installments of principal and interest maturing after the commencement of the action, and for which judgment was not asked in the ‘complaint, and the time for correction of such verdict has passed, the court will direct the amendment of the complaint to conform to the verdict.</p>

Upon Ernest Sharland’s application, two policies on his life, each for the sum of $5,000, payable in favor of his wife, the plaintiff in error, were issued by the Washington Life- Insurance Company, each policy being dated November 12, 1896. This action is' brought to recover the amoiint of said policies.

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p>

<p>Bankruptcy — Partnership and Individual Debts — Preferences.</p> <p>A creditor of a firm, holding their promissory note for money loaned, surrendered- the same, and accepted in lieu thereof the individual note of a member of the firm for the same amount; the assumption of the debt by that partner being part of the consideration for the purchase of an interest in the firm for her son-in-law. The latter note was twice renewed, and was finally reduced to a judgment against the maker. Within four months thereafter the partnership and its members became bankrupt. Belxt, that the debt was that of the individual partner, not of the firm, notwithstanding the fact that the interest on the new note had always been paid by the firm, and that, since the firm creditors could not come upon the individual assets of that partner in competition with her individual creditors, the former had no standing to object, to the judgment as a preference under the bankruptcy act, or to restrain the creditor from its enforcement. :</p>

<p>In Bankruptcy. On review of decision of referee in bankruptcy disallowing claim of Nathan Kosenberg.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On certificate of referee in bankruptcy.</p>

<p>In Bankruptcy. On claim tiled by Peter Khepero for $99.98, as entitled to priority in payment as wages due under section (M-b of the bankrupt act, which was allowed by the referee as an indebtedness, but disallowed for priority, and the question thereupon certified for the opinion of the district judge.</p>

<p>1. Bankruptcy — Exemptions—Concealment op Assets.</p> <p>Where the exemption law of the state (Code Ga. § 2S30) declares that a debtor shall forfeit his right to the exemption allowed, if he is guilty of willful fraud in concealing from his creditors any part of the property of which he is possessed at the time he seeks the benefit of the exemption, a bankrupt who does not make a full and fair disclosure of all the property owned by him at the time of the filing of his petition in bankruptcy is not entitled to have any exemption set apart to him by his trustee in bankruptcy.</p> <p>2. Same — Review op Refekee’s Decision — Findings of Pacts.</p> <p>On review of a decision of a referee in bankruptcy, the district court will not reverse the findings of facts made by the referee, unless the same are manifestly erroneous.</p>

<p>1. Bankruptcy — Costs—Expenses of Examination.</p> <p>Where the assets of an estate in bankruptcy are no more than sufficient to pay certain labor claims, proved and allowed as preferred debts, and an examination of the bankrupt is undertaken in the hope of discovering concealed asse/ts, at the suggestion of the attorney for the trustee (who previously represented the creditors by whom the trustee was chosen), hut against the objection of the labor claimants, and without resulting benefit to the estate, the expenses of such examination, including the hire of a stenographer, should not be paid out of the funds of the estate, but must be borne by the creditors who procured it</p> <p>2. Same — Fee of Trustee's Attorney,</p> <p>The claim of the trustee’s attorney for a fee for professional services rendered in connection with such examination, no benefit to the estate having yet resulted, will not be allowed out of the general funds of the estate. His services must be regarded as virtually rendered in behalf of those creditors who were his clients, and on the credit of what they might succeed in realizing.</p>

<p>1. Bankruptcy — Assets—License.</p> <p>A license to occupy a stall in a city market is property of the licensee, which will pass to liis trustee in bankruptcy; and the court of bankruptcy has power to order the bankrupt to transfer such license to his trustee, and to make such application to the licensing authorities for the reissue of the license to the trustee or his vendee as is customarily required by those authorities.</p> <p>3. Same — Jurisdiction—Parties.</p> <p>On the ti us lee’s application Cor an order requiring the transfer of such license to him, it being contended that the license was a mere personal privilege, which the bankrupt was exercising in connection with the business carried on by his wife at such stall, she was brought into the case by petition and rule to show cause. She made no objection before the referee to the jurisdiction of the court, or the mode in which she was made a party, and did not claim the license by transfer from tier husband, but contested the application on the ground that the license was not such property as would vest in the trustee and that the latter was chargeable with laches. Held, that she could not be heard to object to the jurisdiction of the court on petition to review a decision of the referee adverse to 'her claims.</p>

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p>

In Bankruptcy. Submitted on question of the right of tlie trustee to certain letters patent issued to the bankrupt, and to two policies of insurance issued by the Northwestern Life Association.

<p>1. Bankruptcy — Application for Discharge — Reference to Referee.</p> <p>Au application for a discharge in bankruptcy, with such briefs and pleas as may be made in opposition thereto, must be heard and determined by the judge of the court of bankruptcy. The decision of the question whether or not a discharge shall be granted cannot be delegated to a referee. But the application for discharge may be referred to the referee to ascertain and report the facts.</p> <p>2. Same — Appeal.</p> <p>A bankrupt’s application for discharge having been referred to a referee to report thereon, a creditor appeared before the referee, and objected to tlie power of the latter to determine and pass upon the application. The objection was overruled, a.nd the referee reported a recommendation that the discharge should be granted. The creditor renewed his said objection in the court of bankruptcy, but the same was dismissed, but with leave to the creditor to ask for a recommitment of the case to the referee, in order to enable him to present objections to the discharge of the bankrupt. Thereafter, no further proceedings having been taken or objections filed by the creditor, the discharge was granted, and the creditor appealed. It did not appear that he had any legal ground for objecting to the discharge.' Held, that no prejudice had resulted to the appellant from the course of proceedings below, and his appeal was without merit.</p>

<p>Bankruptcy — Proor and Allowance ok Claims — Trial by Jury.</p> <p>A creditor presenting a claim for proof and allowance against the estate of a bankrupt, which is contested by Ihe trustee, is not entitled to demand a trial by jury. Proceedings in bankruptcy being of equitable cognizance, the seventh amendment to the constitution of the United States does not apply thereto, and no act of congress at present in force authorizes trial by jury in such cases.</p>

<p>1. Bankruptcy — Insanity of Kespondent.</p> <p>A court of bankruptcy will not take jurisdiction of a petition in involuntary bankruptcy against a person wbo, prior to tbe filing of such petition, had been formally and duly adjudged insane by a state court of competent jurisdiction, and for whose person and estate a guardian had, been appointed by such court.</p> <p>2. Same — Acts of Bankruptcy.</p> <p>A transfer of property by a person who' is so insane as to be wholly incapable of managing his business affairs cannot be held to be an act of bankruptcy on which a petition in involuntary bankruptcy may be maintained by his creditors against the objection of his guardian.</p>

<p>In Bankruptcy. On motion to confirm report of referee recommending the bankrupt’s discharge and upon exceptions thereto.</p>

<p>In Bankruptcy.</p>

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

<p>B an kb r ptc y — Lthns—1Taxes.</p> <p>Wliere real estate of a bankrupt, mortgaged for more than its value, and also subject to’ the. lien of taxes assessed thereon, (the tax lion being made paramount to that of the mortgage by the laws of the slate), is sold to the mortgagee, and his claim against the bankrupt's estate for the deficiency proved and allowed, Ihe court will not order the taxes to be paid out of the fluids of the estate, since such payment would operate to the benefit of the mortgagee, in prejudice of the rights of general creditors, and since the taxes are, in any event, secured.</p>

<p>International Extradition — Delay in Removal of Prisoner — Discharge.</p> <p>Under Rev. St. U. S. § 5273, providing that, if a person committed for extradition is not delivered up and conveyed out of the United States within two calendar months after commitment, it shall be lawful for any judge of the United States to order him discharged out of custody, unless sufficient cause be shown why such discharge, should not be ordered, one who has been arrested as a fugitive from justice from a foreign country, and detained for more than two. months in jail without trial, Is entitled to be discharged, though at the time of the application an officer from the country asking extradition is on his way to- remove the prisoner, where, with reasonable diligence, the officer might have been present before file application was made, and no sufficient cause is shown why be has been delayed.</p>

<p>1. Trade-Names — Name of Corporation — Suit by Foreign Corporation.</p> <p>A foreign corporation, doing business in a state only by license, has no standing in a court of equity to question the right of a corporation of the state to do business therein undo.r the name by which it was chartered, on the ground that such name is similar to its own, and that it has an exclusive right to its use.</p> <p>2. Same — Geographical Terms — “Continental. ”</p> <p>The Continental Insurance Company, a corporation of New York, has no exclusive right to the use of the word “Continental” in the name of an insurance company, and is not entitled to an injunction restraining another company from tile use of such name, where there is no attempt to deceive (lie public as to the identity of the two companies, and no such deception in fact is shown.</p>

<p>1. Trade-Names — Unfair Competition — “Rahtjen’s Composition."</p> <p>A composition paint for use on the hulls of vessels was originally made and sold in Germany, prior to 1805, by Rahtjen & Sons, and acquired a high reputation, under the name of “Ralitjen’s Composition.” In 1869 it was introduced into this country, and has since that time been sold here continuously by the authorized agents of the original manufacturers or their English licensees, under the trade-name of “Rahtjen’s Composition.” In 3873 the paint was patented in England, hut the patent lapsed in 1880 for nonpayment of dues. In 1883 defendant, commenced the manufacture of the same paint in England, using the name of “Rahtjon’s Composition,” and since 3890 has sold its products in the United States.. Held, that the expiration of the English patent did not affect the right of the original makers to protection in this country in the, exclusive use of the name, which had, since its introduction here, constituted the trade-name of their product.</p> <p>3. Same — Suit for Injunction — Laches.</p> <p>A delay of eight years before commencing suit to enjoin infringement of rights in a trade-name will not bar relief, where the defendant’s competition during that time was inconsiderable.</p> <p>Wallace, Circuit Judge, dissenting. .</p>

<p>Copyright — Suit for Infringement.</p> <p>Complainant and defendants, each contemplating the publication of a directory of the same city, entered into a contract by which they agreed to share in the work of canvassing, compilation, and typesetting; complainant to first use the type after it was set, and then deliver it to defendants, who were authorized to use it in printing their directory in the same form, with certain restrictions. Held, that the fact that defendants, inadvertently or otherwise, failed to observe such restrictions in all eases, thereby violating the contract, afforded no ground for a suit in a federal court by complainant for infringement of copyright; he having copyrighted his directory befpre defendant’s was issued, but after it was printed.</p>

<p>Suit in equity for an accounting and the recovery of royalties under a license to manufacture under certain patents.</p>

<p>1. Patents — Infringement—Rasp-Cotting Machines.</p> <p>The Stokes patents, Nos. 376,400 and 397,254, for improvements in rasp-cutting machines, are neither for primary inventions, and the claims must be limited to the specific combinations described. As so construed, held not infringed.</p> <p>2. Same.</p> <p>The Stokes patent, No. 397,254, for improvements in rasp-cutting machines, held not infringed.</p>

This is an appeal from a decree of the circuit court, Southern district of New York, holding that letters patent 314,204, of March 17, 1885, to W. O. Swett, for a staple fastener for wooden vessels, were valid, and infringed by defendant, and awarding an injunction and accounting. 96 Fed. 344, 99 Fed. 500.

■ Appeal from the Circuit Court of the United States for the District of Indiana. The bill filed in the Circuit Court for the District of Indiana was to restrain the appellees from infringing Letters Patent No. 223,847, issued January 27, * 1880, to Joseph F. Gent, for Prepared Cereals; the application being filed September 1, 1879. The appellant is the assignee of Joseph F. Gent.

<p>1. Patents — Invention.</p> <p>The mere bringing together of elements selected from old machines, to •perform the same functions which they severally performed in the machines from which they were taken, and producing the same result, is not invention.</p> <p>8. Same — Construction of Claims.</p> <p>A patentee cannot broaden the claims of his patent to cover ground he yielded to meet objections of the patent office, and which was one of the terms on which he obtained the grant,</p> <p>8. Same — Infringement—Printing Machines.</p> <p>The Ividder patent, No. 201,521, for a printing machine, cannot be construed as embodying a pioneer invention; and his double-cylinder construction, in which the two type-beds were shown in a vertical position, and facing each other, cannot be held to cover a press having the type-beds horizontal, one above the other, and both facing upward, as described in the Cox pacent, No. 478,503.</p> <p>4. Same.</p> <p>The Stonemetz patent, No. 376,053, for a web printing machine, describes a machine which is in no sense a primary invention, in view of the prior art, but at most a bringing together of old elements, with a slight variation in respect to some of them, in which variation rests whatever of novelty there is in the invention; and, as so limited, the patent is not ¿infringed by a press made in accordance with the Cox patent, No. 478,503.</p> <p>5. Appeal — Taxation of Costs.</p> <p>In order to lay the foundation for the review by the circuit court of appeals of an order of the circuit court affirming on appeal a taxation of costs by the clerk (if an appeal from such an order will lie), the specific items to which objection is made in the taxation by the clerk should be distinctly pointed out, and the reasons for the objections stated and filed, so as to be shown by the record.</p>

<p>Shipping — Contract for Cargo Space — Connecting Lines.</p> <p>An engagement of cargo space on a steamship line for a shipment of cotton, made by a company operating a connecting line, constitutes a con- . tract which binds the latter to furnish the cargo or respond in damages, • although it was in fact made on behalf of a shipper intending to make a through shipment over both lines, where such fact was not disclosed.</p>

<p>In Admiralty. Suit to enforce a maritime lien for repairs.</p>

<p>1. Charter Party — Stranding—Negligence op Owner — General Average.</p> <p>A ship in good condition, and in every way fit for the proposed voyage, started from Pensacola with a cargo of timber. She drew 23 feet, 6 inches less than her full laden draft. When she reached the bar 9 miles below Pensacola the water was 24 feet deep. The channel was narrow and tortuous, — shaped like the letter “S.” A cross current struck her. She was near the bottom, did not follow the helm, and grounded. Similar accidents often happened at the same place, and were not preventable. Held, that the stranding was not caused by negligence of owner or ttnseaworthiness of ship, so as to relieve the owner of the cargo from liability, under a general average adjustment, for proportion of expenses incurred in getting the vessel afloat.</p> <p>2. Same — Reasonableness op Expenses.</p> <p>A vessel was stranded in an exposed position at 7 p. m., and the captain engaged two tugs, which unsuccessfully pulled upon the ship until midnight; and the next morning he made a contract, dependent upon success, with a tugboat syndicate to get the vessel oil for $3,000. Five tugboats then pulled ineffectually at intervals till midnight. The next morning the captain engaged lighters, and the deck load was taken off, and the same day the vessel was pulled from the bar. She was reloaded, and proceeded on her voyage. Held, that the employment of tugs and lighters was necessary, and that the expenses incurred by the captain were not unreasonable, so as to relieve the owner of the cargo from liability, under a general average adjustment, for its proportion of the expenses.</p>

<p>Courts — Jurisdiction—Action by Citizen of Cuba against a Domestic Corporation.</p> <p>Congress having declared by resolution that the people of the Island of Cuba “are and of right ought to be freo and independent,” and the status of the island in this regard not having been changed by the treaty with Spain of December 10, 1898, a citizen of Cuba is a citizen of a foreign state, within the act of congress of 1887 giving the circuit court of the United States jurisdiction of controversies “between citizens of a state and foreign states, citizens or subjects.”</p>

On Motion to Require Witness to Answer Questions. This is an action at law for the infringement of a patent. Pursuant to section 870 et seq. of the Code of Civil Procedure of the state of New York, plaintiff procured an order directing the examination of the defendant’s officers before trial, and the production at the examination of such books and papers as related to the issues of the action.

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

The appellee, the Southern Home Building & Loan Association, filed its bill in the circuit court on the 14th day of October, 1898, against the appellants, B. D. Turner and his wife, Emily R. Turner, and S. O. Paine, a feme sole, to recover an' indebtedness which was secured by a deed of trust executed by the appellants and C. F. Paine, and for foreclosure of the trust deed.

<p>In Equity. 'Suits for the cancellation of patents to lands.</p>

<p>On Motion to Punish for Contempt.</p>

<p>1. Equity Jurisdiction — Adequate Remedy at Law — Suit to Settle Part nbrship.</p> <p>Where a suit in equity has been made necessary to settle the affairs of a partnership, the court will retain jurisdiction therein to administer complete relief between the partners, although as to some of the matters involved adequate relief might have been afforded by an action at law.</p> <p>2. Same.</p> <p>Where it is competent for a court of equity to grant the relief sought, and it has jurisdiction of the subject-matter of the suit, the objection that there is an adequate remedy at law to defeat the jurisdiction must be taken at the earliest opportunity, and before the defendant enters a full defense.</p> <p>8. Equity — Laches.</p> <p>A suit in equity will not be stayed for laches before the time fixed by the analogous statute of limitations at law has run, unless unusual conditions or circumstances are shown by defendant, which make it. inequitable to permit the suit to be maintained after the lapse of a briefer time.</p> <p>4. Partnership — Duty of Partners to Firm — Fraudulent Conduct of Partners.</p> <p>Complainants and defendants were partners in a firm which obtained a contract for the construction of 50 miles of a' railroad. By agreement between them one of defendants was to take personal charge of the work, receiving a salary therefor from the firm, and was to endeavor to complete it with such expedition and in such manner as to enable the firm, if possible, to secure a further contract upon the same road. Defendants received some assurances from the company that a second contract would he given them, hut concealed such fact from complainants, and, acting In concert, wrote complainants dissolving the partnership, after which they together secured a second contract for the construction of 70 miles of road additional, in which they refused to permit complainants to share. HelS, that their action was a breach of the duty imposed on them by the law to act in the utmost good faith towards tlioir partners, and that they would be charged with relation to the second contract as trustees of the firm, or, conceding- their action in dissolving the partnership to have been effective, would he held to respond in damages to complainants, such damages to be measured by the profits realized on such contract.</p> <p>5. Equitable Assignment — Nonnegotiaele Noth.</p> <p>A nonuegotiahle note given by a partner to a third party, payable when final settlement shall be made on a contract between the firm of which he is a member and a construction company for work, does not operate as an equitable assignment of any part of the money due the firm on such contract, and cannot he used by tlie construction company in part payment of such amount, since such use would preclude the maker from making any defense which he might have as against the payee.</p>

<p>1. Corporations — Dissolution—Jurisdiction of Court of Equity.</p> <p>While it is the general rule that, in the absence of statutory authority, a court of equity is without jurisdiction to decree the dissolution of a private corporation which is a solvent and going- concern, and to that end sequestrate its property, and appoint a receiver therefor, yet such court may always grant equitable relief against such a corporation whenever a sufficient case for such relief is shown, upon the ordinary principles of equity jurisprudence; and such a case authorizing dissolution and the appointment of a receiver is made where it is shown that the affairs of the corporation are not satisfactory, that it is in the midst of, or threatened with, disaster, or when further prosecution of its business will lead to loss and insolvency, and a large majority of its stockholders desire its dissolution.</p> <p>2. Same — Threatened Hostile Action by Stockholder — Appointment of Receiver.</p> <p>Complainants were the owners of more than 99 per cent, of the $1,000,-000 of capital stock of the Blackwell’s Durham Tobacco Company, a corporation engaged in the manufacture and sale of tobacco, the value of the property of which consisted largely in its good, will and in the brand it owned and used upon its product. It was alleged and admitted that one of the defendants, who was a politician of prominence in the state, and had recently purchased a single share of stock in the corporation, publicly announced and published his intention to secure the passage of a bill at the next session of the legislature forfeiting ihe charter of the corporation, and providing for the winding up of its affairs by trustees therein named, and, failing to secure the passage of such bill, to- make the question a political issue in the state. It was further alleged that a fair offer had been made for the- property and good will of the company, which complainants desired to accept, but that such defendant refused to consent to the sale, or to sell his own stock at any price. Heldi, that upon the facts admitted it was apparent that the threatened action of the defendant, whether successful or not, would practically destroy the business of the company, and greatly depreciate the value of its property, and that under such circumstances the court was authorized to appoint a receiver, with a view to its dissolution, and the sale of its property for the protection of all the stockholders.</p>

<p>1. Street Railroads — Grant of Franchises — Effect as Contract.</p> <p>Tiie grant by a city to a street-railroail company of a i'rancliise to construct and operate its road on certain streets, when accepted and acted upon by the company, constitutes a contract, between the city and the company, which the city cannot infringe or impair; and the company thereby obtains such a property right in its tracks, when constructed, and in its franchise to operate the same, that the city cannot authorize their use by another company unless such power is reserved in the grant. In the absence of such reservation, or beyond its terms, such right can only be acquired by another company under the power of eminent domain conferred upon ir, by the state.</p> <p>2. Same — Right of City to Attach Conditions to Grant.</p> <p>Under the provision of the constitution of Georgia, which requires the consult of the corporate authorities of an incorporated town or city to the construction of a, street railroad therein, such authorities may annex conditions to their consent; and a company which accepts a grant containing a reservation to the city of the power to- condemn portions of its tracks for the joint use of other companies when deemed necessary, upon payment of just compensation, cannot repudiate such condition on the ground that the city has no statutory power to make condemnations for such purposes.</p> <p>3. Same — Reservation in Grant — Construction.</p> <p>The city council of Atlanta, in a franchise granted to- a consolidated street-railroad company, reserved to the city “the right to condemn such portions of said lines, not exceeding five blocks, as may be necessary for the allowing of other stieet-car companies to- enter the central portion of the city.” Held, that such reservation extended only to those portions of the company’s lines within what might fairly be considered the central portion of the city, and did not authorize the condemnation of portions of its track outside that limit, although for the purpose of enabling a new company to ultimately enter the central portion of the city.</p> <p>4. Same — Exercise of Power Reserved by City.</p> <p>Under suck grant the city council has power to- determine when the necessity exists for exercising the right reserved, subject only to the condition that its judgment must be based on reasonable grounds.</p> <p>5. Same.</p> <p>The company, under the contract, made by its acceptance of the grant containing such reservation, cannot object to the exercise of the power reserved in any reasonable and proper manner; and the city may, on determining the necessity for condemning portions of the company’s tracks for the use of another company, properly authorize the latter to institute proceedings in its own name to make the condemnation in accordance with the procedure prescribed in such cases by the laws of the state.</p> <p>8.. Same.</p> <p>' Under such reservation, reasonably construed, the city had the right to make and enforce such regulations as to the movement of cars or use of tracks by the comxjany as were reasonably necessary to make the purpose of the reservation effective, by enabling the portion of the track condemned to be jointly used by the two companies.</p> <p>7. Same.</p> <p>The exercise of the power of condemnation under such reservation, as to a short portion of track is not reasonably justified, where each company requires but a single track, and the street is of sufficient width to accommodate two tracks without interference with other travel along it or with each other. ;</p> <p>8. Same. i</p> <p>A determination by the city council of the necessity of condemnation under such reservation for the purpose, therein expressed, of enabling the second company to enter the central portion of the city, where ineffectual because the portion of track to which it relates is outside of the limits contemplated by the -contract, cannot be construed as an adjudication of the necessity of condemnation by the second company under a power given it by its charter, to be., exercised under certain circumstances and upon different grounds, or as a consent by the city to the condemnation on such grounds.</p>

<p>1. Mortgages — Absolute Conveyance as Security — Bights oe Parties.</p> <p>A creditor holding the title to real estate, subject, to a mortgage, as security, who buys the property when sold under the mortgage, holds the title acquired subject to the original trust, and, in case he sells the property, is accouniable to the debtor for the proceeds, less the amount expended in redeeming from the mortgage.</p> <p>2. Same — Construction or Contract.</p> <p>Whore an instrument of defeasance executed by a creditor, to whom the debtor liad conveyed property as general security for his indebtedness, provided that, as security for a specified amount of such indebtedness, tiie creditor should accept a mortgage upon other property, which was given, and subsequently foreclosed by the creditor, the effect of such agreement was to take the amount specified from the general indebtedness secured by the property conveyed, which, on an accounting, could not, he charged with any deficiency remaining due on the mortgage debt after foreclosure.</p> <p>3. Same — Unauthorized Sale by Grantee.</p> <p>A creditor, to whom property is conveyed as security under an agreement authorizing its sale only at a price to be agreed upon between the parties or fixed by an umpire', who sells the property without; observing such agreement, is accountable to (he debtor for the actual value of the property at the time of settlement, if greater than the price received.</p>

Action at law by tbe receiver of a national bank to recover an assessment from defendant as a stockholder. A jury trial was waived, and tbe case submitted to tbe court on the pleadings and a stipulation of facts. Findings of Fact.

<p>This is an action at law by the receiver of a national bank to recover an assessment from defendant as a stockholder.</p>

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

<p>New Total — Conflict of Evidence — Motion to Set Aside Verdtct.</p> <p>Wiiere, in an action by a passenger against a railway company for damages for being detained and searched on a train for the theft of a poeketbook, the evidence as to whether plaintiff voluntarily remained on the train for the exoneration of himself and defendant Is so evenly balanced as to be a fair one for the jury, and its finding does not seem to have been inilueneed by any improper motive, the verdict will not be set aside on motion.</p>

The petition beginning this action was filed hy R. D. Bowen against E. J. Hart, Jr., as the executor of E. J. Hart, Sr., and it is alleged: “That on or about the 16th day of November, 1888, and both prior and subsequent thereto, for valuable consideration, E. J. Hart, Sr., since deceased, employed your petitioner to clear up the title to all lands in Texas belonging to or claimed by said Hart, and obligated himself, after all entanglements were removed, to deliver to your…

This suit of trespass to try title was originally instituted in the state district court by the defendant in error, House of Mercy of New York, a charitable corporation organized under the laws of… Held: the sum of $75,000. The opinion of said court at length is referred to in 3 Bush, 365 — 101, and to which reference is here made, and to be used by either party hereto.

<p>1. Master and Servant — Injury to Employe — Master’s Duty to Furnish Safe Place to Work.</p> <p>Plaintiff, being employed as a longshoreman in unloading one of defendant’s ships in port, was directed to go below deck by the steerage way, which led through a dark passage, and while going through such passage fell through a trapdoor that had been left open, and was injured; -the steerage being outside the usual place of. employment for longshoremen, and only used because the ladder usually used was out of repair. Held, that it was the duty of defendant to furnish plaintiff a safe place to work, and the passage referred to did not meet that requiiement</p> <p>3. Same — Fellow Servants.</p> <p>A longshoreman employed in unloading a ship, and the servants aboai'dship, having charge of the ship’s supplies, are not fellow servants, within the rule precluding recovery for a personal injury sustained through the negligence of a fellow servant.</p>

<p>National Banks — Assessments against Stockholders — Liability of Pledgee.</p> <p>It is only in clear cases that a pledgee, on the ground of estoppel, can be subjected to liability for an assessment on national bank stock, instead of the owner, upon whom the legal obligation rests; and, where stock stood upon the books of a bank in the name of a person as cashier of another national bank, the designation suggested a qualified or representative holding, which put. all persons on inquiry, and tlie bank of which tlie holder was cashier is not estopped to show that it held the stock as collateral only, — at least, in tlie absence of evidence that the insolvent bank or its creditors in fact acted in reliance on its supposed ownership.</p>

<p>On Answer in Abatement and Motion to Dismiss.</p>

Petition by the Xew England Kailroad Company for a writ of mandamus to the United States circuit court, and motion for a supersedeas by the ISTew England Kailroad Company, defendant in an action brought against it by Kuth E. Hyde, by her next friend, in which judgment has been entered.

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

<p>In Bankruptcy.</p> <p>The Franklin Syndicate, Incorporated, and William F. Miller having been adjudged bankrupt, and a receiver appointed by the court to take charge of their property pending the first meeting of their creditors and the selection and qualification of a trustee, one of the creditors presented a petition for the examination of the bankrupts; whereupon the following order was made by the court: ' „</p> <p>THOMAS, District Judge. Upon reading and filing the annexed petition of Bernard O’Kane, a creditor of the aforesaid bankrupts, the proof of claim hereto annexed, and on all the papers and proceedings herein, and on motion of Belfer & Flash, his attorneys, it is ordered that the examination of the bankrupts, and of all material and necessary witnesses herein, and the taking of their testimony, as prayed for in the petition, be, and the same hereby is, referred to Augustus J. Koehler, Esq., the referee in bankruptcy herein, to take proof under the acts of congress relating to bankruptcy,, and that said examination be directed to the facts and circumstances concerning the acts, conduct, and property of said bankrupts; also concerning the cause of bankruptcy, the conducting of the bankrupts’ business, the disposition of the bankrupts’ properts'-, and the bankrupts’ dealings with creditors; and let subpcenas issue directing the bankrupts, and all other persons whose testimony may be material and necessary herein, to submit to examination before the aforesaid referee, pursuant to the rules and practice of this court, and for such other and further relief as may be just herein.</p> <p>Thereafter, in pursuance of the above order, the bankrupt William F. Miller was brought before the referee for examination, and, after counsel for the receiver had been allowed to intervene in the proceeding, counsel for the bankrupt interposed an objection to any proceeding being had or taken under the order of court. This objection was based upon the ground that there was no proof that the creditor who sought the examination had procured the allowance of his claim in bankruptcy; that, if such claim had been allowed, its allowance was illegal, and not in pursuance of the bankruptcy law; that such claim could not be allowed until a first meeting of creditors was held; that the bankrupt had a right to object to the claim,' and contest its validity, before it could be allowed, of which right he could not be foreclosed; that there could be no examination of the bankrupt until there had been a first meeting of creditors; that, under section 58 of the bankruptcy law, there could be no examination of the bankrupt without notice to all the creditors of at least 10 clays; that none of the requirements provided for by the bankruptcy law and the rules had been complied with; and that the order directing the examination of the bankrupt was wholly void, and without power, and that the referee had no jurisdiction to proceed to examine the bankrupt. The referee overruled tlxo objection to the validity of the order, on the ground that he had no power or jurisdiction to modify, set aside, or vacate an order made by the judge of the court. Counsel for the bankrupt, and counsel representing various parties in interest, then moved for a continuance of the proceedings until a meeting of creditors should have been held, and renewed their objection to the examination of the bankrupt on the ground that the statutory notice to creditors had not been given. The referee reserved his decision on this question, and adjourned the proceedings to a future day. Exceptions to the ruling of the referee having been noted, he eeriiiied the record of the proceedings to the court 1‘or review, together with his decision on the question reserved, wherein he said:</p> <p>“An objection of a nature which warrants due consideration is made by the attorney for the bankrupt, and by Mr. Goldsmith, of counsel for certain creditors, and the receiver, and other attorneys, representing different creditors, ‘that no examination can be had, for the reason that the notice required by Bankr. Act, § 58a, subd. 1, was not given.’ I do not deem the objections so made by the attorney for the bankrupt, as to the failure of such notice required by section 58a, subd. 1, to be available to him; but as this objection also emanates from Mr. Goldsmith, representing a large number of creditors, as well as representing the petitioning creditors oil the application to have said Miller adjudicated a bankrupt, and also Mr. Burr, and other attorneys representing different creditors, as well as by the receiver, and affects the statutory rights of all the creditors in this proceeding, it seems to me that this objection should be considered, in view of the rights and privileges of all the creditors concerned and interested in the bankrupt’s estate and property. It is my opinion, upon a careful examination of all the proceedings before me, and of the petition and order of February 16, 1900, which directs me to ‘lake proof under the acts of congress relaiing to bankruptcy, pursuant to the rules and practice of this court,,’ that this objection to the examination of the bankrupt, for failure to give the notice» required by section 58a, subd. 1, should be sustained, and that, before proceeding with such examination, at least 10 days’ notice bo given by mail to the creditors herein.”</p>

On petition to superintend and revise, in matter of law, proceedings of the district court of the United States for the Western district of North Carolina in the matter of W. EL Gilbert, trading as Winston Hardware Company and as Gilbert Hardware Company, bankrupt, in bankruptcy.

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p>

<p>Bankruptcy— Opposition to Discharge — Concealment of Assets.</p> <p>Where creditors opposing a bankrupt’s application for discharge show his possession of substantial assets a year before his failure, which are not listed in his schedule nor turned over to his trustee, and which, after making all proper allowance for business losses and for expenses, remain largely unaccounted for, the burden of proof devolves upon the bankrupt to account for such disappearance of assets or give a reasonable explanation of his inability to do so, and, in default of either, it will be inferred that he has withheld and concealed property from his trustee, and his discharge will be refused.</p>

<p>1. Bankruptcy — Priority op Ci,aims — -Costs and Expenses.</p> <p>The costs and expenses of administration of ail estate in bankruptcy must he paid out of the estate before there is any distribution to creditors; and although there are specific liens on the estate, sufficient in the aggregate to absorb the entire assds, their payment must be postponed to the payment; of the costs and expenses.</p> <p>2. Same — Wages op Labor.</p> <p>Tinder Bankr. Act 1898, § 64b, par. 4, giving priority of payment in full out of bankrupts’ estates to “wages due to workmen, clerks, or servants,” earned within three months before the commencement of proceedings, and not exceeding 8300 to each claimant, such claims for wages are entitled to he allowed and paid before the funds of the estate can be applied to the discharge of liens against the bankrupt’s estate.</p> <p>3. Same — Fee op Attorney op Voluntary Bankrupt.</p> <p>The amount to he allowed as a fee to the attorney of a voluntary bankrupt rests largely in the discretion of the referee in bankruptcy having charge of the case; and his allowance will not be disturbed by the judge, in the absence of evidence to show that it was unjust, excessive, or exorbitant, especially where creditors, being given 30 days in which to file evidence that the amount allowed was too great, have failed to do so.</p> <p>4. Same — Reperke’s Expenses.</p> <p>Exceptions to the referee’s charges against the estate in bankruptcy for his expenses therein will not he heard by the court, when the referee’s account of such expenses has been duly kept and returned to the court, under oath, with vouchers, as required by General Order No. 26 (32 O. C. A. xxvii., 89 Fed. xi.), and approved by the court, and especially when distribution of the estate has already been made before such exceptions are presented.</p> <p>5. Same — Hire of Referee’s Clerk.</p> <p>A referee in bankruptcy may employ a clerk to assist him in the discharge of his duties, and may charge the hire of such clerk as a part of the costs of administration in the several estates in bankruptcy coming before him.</p>

<p>In Bankruptcy. This is a petition in involuntary bankruptcy against the Elk Park Hiaing & Milling Company, a corporation organized under the laws of the state of Colorado for the purpose of operating mining property in that state. The petitioning creditors allege that the debts set forth were contracted for mining supplies furnished to the respondent, and for and on account of labor and board of men employed in and about the mining property of the company. ,</p>

<p>Customs Duties- — Appraisal—Protest.</p> <p>A protest by imporiers, wliioli fails to show whether the objection is to the valuation or the classification, is not sufficiently definite.</p>

- Actions'against defendant, as collector of internal revenue, to ■;recover back special taxes exacted from plaintiffs as rectifiers of ■spirits. ■■

<p>1. Internal Revenue — Tax on Wholesale Liquor Dealers — Place ok Making Sales.</p> <p>Where a wholesale liquor firm, having an office in New York, where it pays the internal revenue tax required of such dealers by Rev. St. § 8244, accepts orders at such office, and directs the delivery of the good§ thereon from a public warehouse in New Orleans, in which they are stored, such sales are made in New York, and not in New Orleans.' and do not render the firm subject to a second tax as a dealer at. New Orleans.</p> <p>2. Same — Construction—Statute.</p> <p>There is no reason requiring a statute imposing special internal revenue taxes to be construed liberally in favor of the government, but it should, be construed fairly and judicially, with reference to both parties.</p>

<p>L Grand Jury — Irregularity in Organization — Waiver of Objection.</p> <p>Objections to a grand jury, based on the ground merely of irregularity in its organization, from which fact defendant has suffered no prejudice, are not viewed with favor, and will not be sustained where only raised by a motion to quash, filed more than two months after the indictment is returned, although the defendant was placed under bond to await the action of such grand jury prior to the term at which it was drawn and impaneled.</p> <p>2. Criminal Law — Evidence—Proving Other Offenses.</p> <p>On the trial of a joint indictment charging an employs of a national bank with having unlawfully abstracted money from the bank, and the drawer of checks upon which the money was paid out with having aided and abetted in such abstraction, evidence to show that, while the second defendant had apparently a balance to his credit, as shown by the books, his account had in fact been overdrawn for years, is relevant and admissible, although it also tends to establish other offenses, prosecution for which is barred by limitation.</p> <p>3. Same — Defendant as Witness — Trtal of Defendants Jointly.</p> <p>Under Act March 1G, 1878 (20 Stat. 30), providing that in the trial of persons charged with criminal offenses in the courts of the United States “the person so charged shall, at his own request, but not otherwise, be a competent witness,” one of two defendants jointly indicted and tried may, at his own request, be examined as a witness by the government.</p>

<p>1. Criminal Law — Indictment—Illegal Sale ov Oleomargarine — Construction of Statute.</p> <p>Under 1 .Supp. Eev. St. p. 505, e. 840, § 6, requiring retail dealers in oleomargarine to pack same in “suitable wooden or paper packages,” marked or branded as the commissioner of internal revenue shall prescribe, and imposing the penalty of fine and imprisonment upon “every person” who knowingly sells, delivers, or packs oleomargarine in any other form than in “new wooden or paper packages” as therein proscribed, an indictment is good which charges a retail dealer with selling, delivering, and packing oleomargarine in packages which are not “new and suitable” wooden or paper packages.</p> <p>2. Same.</p> <p>The sale or delivery of oleomargarine in packages that are not new, being an indictable offense, under 1 Supp. Rev. St. p. 505, c. 810, § 6, and tlie word “suitable” used in the statute, in respect to the kind of packages in which sales must lie made, being indefinite, such word may be disregarded as surplusage in an indictment charging defendant with selling and delivering oleomargarine in packages not “new and suitable.”</p> <p>3. Same.</p> <p>Under 1 Supp. Rev. St. p. 505, e. 840, § 6, requiring oleomargarine to be packed in packages “marked and branded as tbe commissioner of internal revenue shall prescribe,” and imposing a penalty for packing- same “in any manner contrary to law,” an indictment is good which charges defendant with packing oleomargarine “in packages not marked in accordance with, the regulations of the commissioner,” -without regard to tbe kind of package used.</p> <p>4. Constitution An Law — Police Regulations in Revenue Law — Tax on Oleomargarine.</p> <p>1 Supp. Rev. St. p. 505, c. 840, imposing a tax on manufacturers and dealers in oleomargarine, and regulating- tbe sale of such article, having for its primary object the raising of revenue, and not protection to purchasers, is not unconstitutional, as being an infringement upon tbe police powers of the states.</p>

<p>Criminal Daw — Unlawful Occupancy of Public Lands — Indictment.</p> <p>An indictment charging defendant with unlawfully and knowingly maintaining a certain inclosure of public lands, without alleging that the inclosure was made without claim or color of title to any of the land inclosed, “made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States.” in the language of the act of February 25, 1885 (23 Stat. 321),, is fatally defective.</p>

<p>Unfair Competition — “Oxford” Bibles.</p> <p>The name “Oxford” on Bibles has so long been used to designate the Billies prepared and published by the University of Oxford, England, as to have become identified with such particular publications as denoting their origin, and (he use of such name by another publisher, having no connection with the place or name, can have no purpose except to deceive purchasers, and constitutes unfair competition.</p>

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

Cross Appeals from tbe Circuit Court of the United States for the District of Connecticut. This cause comes here upon cross appeals from a decree of-the circuit court, district of Connecticut. 97 Fed. 627.

<p>Patents — Infringement—Fireproof Ceilings.</p> <p>The Orr patent,' No. 456,202, for a fireproof ceiling, consisting of metallic lathing embedded in a plastic material, construed, and held not infringed.</p>

<p>Patents — Infringement—Defenses.</p> <p>A license given by the owner of a patent to import and sell in this country the fabric of the patent on payment of a royalty of two cents per' yard thereon, contained a covenant by the licensee not to handle or serve as commission agent for any goods, of such description made in this country by any person, firm, or corporation not licensed under the patent, “unless he pays the royalty thereon himself, it being understood, however, that but, one royalty shall be paid on such goods or any fabric coming under this license, whether paid by manufacturer or seller.” Held, that such provision was for the benefit of the licensee alone by permitting him to handle the fabric made in this country without payment of royalty, when, but only when, the manufacturer’s royalty had been paid thereon, and that an unlicensed manufacturer, having no connection with the contract, could not avail himself of such provision as a defense against a suit for infringement on the ground that his product was sold by the licensee as his agent</p>

<p>Patents — Invention—Design for Eyeglass Case.</p> <p>The Koenen design patent, No. 29,485, for a design for an eyeglass case, is void for lack of patentability of the design shown, which discloses no new or original features.</p>

<p>Admiralty Jurisdiction — Suit between Foreigners — Effect of Assignment of Claim.</p> <p>Wliere a court of admiralty, in tlie exercise of its discretion, has refused to entertain jurisdiction of a suit between foreigners for the breach of a contract of carriage made in Canada, and no part of which was to be performed within the United States, it appearing that the controversy could more properly be determined by the courts of Canada, by the laws of which the contract was governed, it is not required to entertain a second suit on the same cause of action by an assignee of the former libelant, who is a citizen and resident of the district where the suit is brought, when the assignment was merely colorable, and made for the purpose of enabling the suit to be brought in such court.1</p>

In Admiralty. On distribuí ion of fund recovered as damages for collision, as between the owners and the insurer of the injured vessel.

<p>1. Collision — Steam and Sail Vessels Meeting — Duty of Tug with Tow.</p> <p>It is the duty of a tug with a tow, on meeting a sailing vessel, to take all necessary precautions to keep both tug and tow. out of her way, and where, by reason of its length, the tow is unwieldy, the care required is correspondingly greater.</p> <p>2. Same — Duty of Sailing Vessel.</p> <p>A sailing vessel, on meeting a tug with a tow, is bound to keep her course, that the tug may not be misled in taking measures to avoid collision.</p> <p>3. Same — Fault—Facts Considered.</p> <p>A schooner came in collision with the second of three barges in tow of a tug on a single line, the whole extending a length of 3,300 feet. The vessels met on nearly parallel courses, and came within sight of each other when two miles apart. The schooner was sailing closehauled, and the tug passed to the leeward of her at a distance of about 300 feet. The schooner held her course, but, owing to her leeway, passed the first barge at a distance of not more than 75 feet, and came in collision with the second. Held, that the schooner was not in fault for holding her course, but that the tug and the barge were both in fault for the- collision, — the former for not changing her course so as to pass with her tow to the windward of the schooner, which she could readily have done; and the latter because, when the schooner passed so close to the first barge, which was 160 fathoms in front, she must have known, if she kept a proper lookout, that the tug had placed her in a position where collision was inevitable, if she kejpt her course, and should have cut her hawser, and by using her helm sheered out of danger.</p> <p>4. Same — Weight of Evidence.</p> <p>Testimony from a steamer, clearly in fault for a collision with a sailing vessel, that the latter was guilty of contributing fault by changing her course, will be viewed with suspicion; and when the evidence from the sailing vessel is to the contrary, and accords with the probabilities, it will be accepted in preference.</p>

<p>1. Foreign Corporations — Jurisdiction op Court op Equity to Dissolve— Appointment op Receiver.</p> <p>A court of equity in the jurisdiction where a foreign corporation has a situs for the transaction of its business, and where its property is situated, is without jurisdiction, in the absence of a statute conferring it, to appoint a receiver for such corporation, with a view to winding up its affairs and distributing its assets, at suit of a resident minority stockholder, who complains alone of the internal management of its affairs, whereby the value of his stock has been diminished and is threatened with further prospective injury, where the corporation is solvent, and the directors and majority stockholders whose actions are complained of are nonresidents.</p> <p>2. Same — -State Statute.</p> <p>Such jurisdiction is not conferred by the Missouri statute of April 21, 1891 (Laws 1891, p. 75), which, after prescribing the conditions on which foreign corporations may do business within the state, and requiring them to maintain an office where legal service may be made upon them, declares that “such corporation shall be subject to all the liabilities, restrictions and duties which are or may be imposed upo-n corporations of like character, organized under the general laws of this state, and shall have no other or greater powers.” The object of such provision is to subject such foreign corporations to the same liability to actions agitinsr them as -domestic corporations, and to the same restrictions and duties respecting their operation and conduct, but does not confer upon courts of equity williin the state visitorial jurisdiction, over tlieir internal affairs, or the power to wind op their business and distribute their property.</p> <p>8. Same.</p> <p>■Rev. St. Mo. 1889, §§ 2790-2792, which give the courts of the state jurisdiction, o-n petition by an officer or stockholder of a corporation, to require an accounting by its directors as to their official conduct; to remove them for gross misconduct, and require tlie election of others in their places; and, incidentally, to appoint a receiver to take charge of the business of the corporation, — do not confer authority to wind up a solvent corporation and distribute its property.</p>

<p>Principal and Agent — Agency Created by Course of Dealing — Bights of Third Persons Dealing with Agent.</p> <p>During some six years, complainants, who resided in New Jersey, made loans of trust funds in Chicago through one A., who took, and forwarded to them applications, notes, mortgages, and abstracts of title, and upon whom they relied to examine titles, make valuations, and to disburse the loans, paying off prior liens therefrom when necessary. He also collected interest.on such loans, and in some cases 'the principal, remitting the same to complainants. In the six years, 26 loans, aggregating over $100,000, were so made. During such time defendant applied to A. for a loan for the purpose of paying off an existing incumbrance on his property. He furnished an abstract, and at A.'s request executed a note and trust deed to A., which the latter forwarded to complainants; first indorsing the note without recourse, as was the custom between them. Complainants accepted the loan, and remitted the amount to A., who converted it to his own use; stating to defendant, from time to time, that the money had not been received. After a year, A., at defendant’s request, executed a release of .the trust deed, which defendant recorded, and procured a loan from other parties, with which he paid off his prior mortgage. For two years A. continued to remit to complainants the interest on the note, representing it as having been collected from defendant. Defendant had no direct dealings with complainants, and had no knowledge for whom A. was acting, or that the note and mortgage, which A. claimed to have mislaid, had ever gone out of his possession. EelfR that, as between the parties, A. was the agent of complainants, who were bound by his acts, and that they could not enforce the mortgage, for which defendant received no consideration.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Tennessee.</p> <p>This bill was filed in the chancery court of Shelby county, Tenn. The complainants are all citizens of Massachusetts. The defendants and their citizenship are as follows: (1) The Hill Shoe Company, a corporation of the state of Tennessee; C. W. Edmonds, William R. Randolph, and David T. Porter, citizens of Tennessee. (2) Mary T. Hill, a citizen of the state of New York. (3) E. Brigham & Co. and Potter, White & Bailey, partnerships, whose members are citizens of Massachusetts; the Davis Shoe Company, a corporation of Massachusetts. Upon the petition of Mrs. Mary T. Hill, one of the defendants, the suit was removed to the circuit court of the United States, upon the sole ground that there was a separable controversy between the complainants and the petitioner, a citizen of the state of New York, which could be fully determined, as between the said Mary T. Hill and the said complainants, without the presence of any of the other parties to the said 'suit. Is the suit removable upon the petition of Mrs. Hill? Does the fact that some of the defendants joined with her were citizens of Massachusetts, and that others are citizens of Tennessee, prevent a ’•emoval by her? The answer to this must depend upon the existence of a separable controversy, within the meaning of the removal statute. A motion to remand to the state court was denied; the learned trial judge being of opinion that the suit embraced a number of distinct controversies, and that, so far as such controversies affected Mrs. Hill, they could be tried out without 'the presence of any other defendant whose citizenship was identical with that of complainants. The complainants are creditors of the Hill Shoe Company, and sue in behalf of themselves and all other creditors. That company is a Tennessee corporation, and was organized in October, 1889, for the purpose of taking over the assets and business of a mercantile firm known as Hill & Sons. In May, 1891, it made a deed of general assignment to one A. Q-. Mitchell. Mitchell partially, administered the trust and died. The defendant C. W. Edmonds took possession of the remaining assets, claiming to have been appointed trustee under a proceeding in a state chancery court. The validity of this appointment is denied. Mitchell’s accounts had not been settled, and complainants averred that he was heavily indebted to the trust, and had been guilty of misappropriating the assets by the payment of invalid- obligations, known to be such by him. One object is to protect the trust assets by restraining Edmonds from acting as trustee, and to have them placed in the hands of a receiver for the purpose of administering the trust under the orders of a court of equity. The sureties upon the bond of Mitchell, and also his executor, were made defendants, and an account of his administration sought. Edmonds was also made a defendant, and an injunction restraining Mm from acting as trustee was prayed. In the interest of the proper creditors of the corporation, the hill is framed, also, for the purpose of excluding certain persons, claiming to bo creditors, and to be secured under the deed of assignment, and also by liens upon property of the corporation senior to the assignment, from participating in future dividends under the assignment, to cancel any liens or mortgages purporting to secure them, and to compel such fictitious creditors to refund dividends paid on their claims by Mitchell, the trustee.</p> <p>The persons claiming to be creditors, whose claims are challenged, and against whom relief is sought, are the defendants Mrs. Mary T. Hill, a citizen of New York; the Davis Shoe Company, a corporation of Massachusetts; F. Brigham & Co., and Potter, White & Bailey, two mercantile firms, whoso members are citizens of Massachusetts. The averments of the bill affecting these creditors who are made defendants, and upon which relief against them is sought, are complex, lengthy, and not altogether clear or consistent. That we may see whether the relief sought against Mrs. Mary T. Hill involves a distinct and separable controversy, which can be wholly disposed of without the presence of any of the other persons made defendants with her, it has been necessary to analyze the bill. Stated in narrative form, and as briefly as possible, its more important averments are substantially as follows: I. M. Hill, the deceased husband of Mrs. Mary T. Hill, was for many years a shoe merchant in Memphis, Tenn., and was a member of several firms who succeeded each other in the same business. At the time of his death he was the chief member of the firm of I. M. Hill & Sons; his partners being two of his sons, Louis P. and William V. Hill, neither of whom had any capital. His death occurred some time in 1888. By his will he devised his entire estate, real and personal, to his widow, Mrs. Mary T. Ilill, and made her sole executrix. His estate consisted of his interest in the business of 1. M. Hill & Sons, and certain real estate, his individual property. After his death, and before the organization of the Hill Shoe Company, the business of I. M. Hill & Sons was carried on by the surviving partners, L. P. and Wm. Y. Hill, under the firm name of Hill & Sons. Whether Hill & Sons constituted a hew firm, or merely continued the business for winding-up purposes, does not clearly appear from the bill. It is perhaps inferable that under some arrangeihent with Mrs. Hill they took the assets and assumed the liabilities of 1. M. Hill & Sons. That I. M. Hill & Sons had assets, consisting of the stock of merchandise and book accounts, aggregating several hundred thousand dollars, is averred. But it is also distinctly charged that the liabilities of the firm exceeded the values of the assets very greatly. It is also charged that the estate of I. 'M. Hill was hopelessly insolvent, by reason of the large indebtedness of the firm of I. M. Hill & Sons and of former firms of which he wás a member. In this state of affairs, the bill, in substance, charges that for the purpose of postponing the payment of the liabilities of I. M. Hill, and of securing to Mrs. Hill a settlement in money and property out of his estate, which in ordinary course of administration she could not secure, and for the purpose of carrying on the business with the assets of the former firm, the scheme of organizing a corporation was fallen upon. Accordingly the Hill Shoe Company was organized; the incorporators being Mrs. Mary T. Hill, three of her sons (two of them being the surviving partners of I. M. Ilill & Sons), and A. G. Mitchell. It is charged that neither her sons nor Mitchell had any capital, and that Mrs*. Hill contributed nothing except certain real estate devised to* ber under tbe will of I. M. Hill, and about which more will appear. These corporators constituted the board of directors, who entered into the engagements and obligations now to bo stated. To this corporation, by the consent of Mrs. Hill and the surviving partners of I. M. Hill & Sons, were transferred the assets, including book accounts, of I. M. Hill & Sons and of Ilill & Sons, if the latter constituted a new firm. To that cprporation Mrs. Hill conveyed 'the several parcels of real estate which passed to her under the will of I. M. Hill, by a deed which limited the effect of the grant to such title as she had received under the will. It is then, in substance, charged that, in consideration ;for these assets and real property, the Hill Shoe Company agreed to do certain things, namely: First, to issue paid-up capital stock to Mrs. Hill in an amount not definitely stated, but said to be enough :to make her a dominating stockholder; second, to issue to the three sons of I. M. Hill paid-up shares of stock in an amount not stated; third, to assume and pay all the indebtedness of the old firm of I. M. Hill & Sons; fourth, to assume and pay all the indebtedness of I. M. Hill, either individually, or as a member of any firm with which he had been connected; fifth, to indemnify Mrs. Hill, as executrix, against any liability as such; sixth, to pay to Mrs. Hill monthly, during her life, the sum of $400, in lieu of any dividends upon her stock in the Hill Shoe Company; seventh, to permit Mrs. Hill to use and occupy the Hill residence, being a part of the realty conveyed to it, under the plan and arrangement above set out, during her life, free from rent, taxes, and expenses of repair.</p> <p>The cpmplainants file with their bill an instrument, styled by tlie pleading a “mortgage,” which was executed by the Hill Shoe Company to Mrs. Hill. A part of the relief sought by the bill is the cancellation of this instrument. It bears even date with her deed to the corporation, and recites that deed, and describes the property conveyed thereby. It is there stated that for the purpose of carrying out the contracts and agreements between Hill & Sons and the Hill Shoe Company, which are referred to as having been made December 24, -1889, the Hill Shoe Company “does hereby promise and agree to and with the said Mrs. Mary T. Hill, and bind itself, as follows: (1) That it will at the end of each month, beginning with the present month of January, 1890, pay to the said Mary T. Hill, for and during her natural life, the sum of $400 in money for each month, which sum shall be taken and accepted by her in lieu of dividends on any stock she now holds or may hold in the Hill Shoe Company during such time. (2) The Hill Shoe Company hereby grants, bargains, sells, and conveys unto the said Mary T. Hill the right to occupy and use, and have the benefit of, the property at the northeast corner of Court and Third streets, Memphis, Tenn., fronting 74% feet on the east side of Third street, being one of the pieces of property heretofore conveyed by the said Mary T. Hill to the Hill Shoe Company, as hereinbefore stated, and the buildings and improvements thereon, and rights and appurtenances thereto belonging, for and during her natural life, as and for her homestead, free and discharged from any rent whatever, and free and discharged from all taxes and other charges and expenses, which taxes and other charges and expenses the Hill Shoe Company hereby binds and obligates itself to pay and discharge during the said time. (S) The Hill Shoe Company hereby assumes and agrees and obligates itself to pay any and all debts and liabilities whatsoever owing by the said Ira M. Hill, deceased, at the time of his death, or owing by the said Mary T. Hill, as executrix of his last will and testament, not already paid or in some, way discharged, and to indemnify and .save harmless the said Mrs. Mary T. Hill and the estate of the said Ira M. Hill, deceased, from any and against all such liabilities and debts. And for the purpose of securing the performance of each and all the stipulations and provisions of this contract, to wit, the payment of the $400.00 per month stipulated in the first paragraph above, and the occupation and use of the property at the northeast corner of Court and Third streets, and the payment of the taxes and other charges and other expenses provided in the second paragraph, and the payment of all the debts and liabilities owing by the said Ira M. Hill at the time of his death, or the said Mary T. Hill, as his executrix, not already paid or in some way discharged, the Hill Shoe Company hereby gives, grants, conveys, and a'grees to a lien and charge upon the said property so situated at the northeast corner of Court and Third streets, hereinbefore mentioned, and more particularly described in the deed made by the said Mary T. Hill to the Hill Shoe Company, before referred to, and that such property shall be charged and bound for the performance in every particular of this contract, and that should the Hill Shoe Company at any time fail to perform and fulfill, according to its true intent and meaning, each and all the stipulations thereof, then the said Mrs. Mary T. Hill may enforce such lien against the said property, and have the same sold, and the proceeds applied first fo pay her any sums due or that may become due by reason of the breach by the Hill Shoe Company of the contract 'aforesaid, or any of its provisions.” It is then charged that the said Hill Shoe Company proceeded to apply its assets in paying off large parts of thQ indebtedness of I. M. Hill & Sons, and that it gave its promissory notes in sef ilement of the claims of other such creditors. The two Massachusetts-firms and the Massachusetts corporation joined with Mrs. Hill as defendants are averred to have been large creditors of I. M. Hill & Sons, who obtained the notes of the Hill Shoe Company for their several claims, and who, it is averred, “acted for the Hill Shoe Company in securing other creditors of I. M. Hill and of I. M. Hill & Sons to take the obligations of said company for their debts.”</p> <p>Complainants attack the contract, by which the Hill Shoe Company assumed the de'bts of I. M. Hill and of I. M. Hill & Sons upon two or more grounds. They aver that the agreement was in excess of the power of a Tennessee corporation, and therefore void. They aver that the contract was based upon no valid consideration, and is therefore unenforceable. They also charge that the agreement by which it issued its paid-up stock (o Mrs. Hill and her sons, and obligated itself to pay her a fixed sum during life upon her stock, was in excess of the power of the corporation; that the corporation exceeded its power, in acquiring from her real estate not necessary for its business. Finally, they charge that the whole scheme by which the Hill Shoe Company entered into the obligations above set out was intended to hinder, delay, cheat, and defraud the creditors of 1lio Hill Shoe Company, both existing and future. It is charged that the obligations to the creditors of I. M. Hill & Sons and to Mrs. Hill were illegal, void, and nonenforeeable, as against the creditors of that corporation especially. The trustee, A. 6. Mitchell, is charged with having been an active parly in the execution of the original contract by which the Hill Shoe Company assumed obligations rendering it insolvent before it had commenced business, and with having knowledge of the void and fraudulent character and purpose of the whole scheme. It is charged that, as trustee, he had paid to such creditors of I. M. Hill & Sons and to Mrs. Hill large sums out of the trust estate in his. hands. The prayer of the bill, particularly based upon this portion of the bill, is that the Massachusetts defendants he excluded from participation in further dividends; that the Massachusetts defendants be required to account for all they have received, either “as dividends or otherwise,” and refund same; that the estate of A. G. Mitchell and the sureties on his bond be held to account for all moneys and property which came to his hands, and for all moneys misappropriated by payments on obligations of I. M. Hill or I. M. Hill & Sons, and for all payments to Mrs. Mary T. Hill on account of the void covenants in her behalf: that Mrs. Hill be compelled to account for and refund all sums paid to her under the covenants and obligations for her benefit, and to account for the reasonable value of the use and occupation of the Hill residence; that the appointment of the defendant Edmonds be held void and of no effect, and that he be restrained from further acting as trustee; that all the assets of the I-lill Shoe Company he placed in the hands of a receiver, and administered under the orders of the court.</p>

<p>1. Removal of Causes — Separable Controversy — Necessary or Formal Parties.</p> <p>Nonresident insurance companies, who had severally paid policies oil property of a lumber company destroyed by Are, although not to its full value, brought a suit in equity in a stale court against the lumber company, which was a domestic corporation, and a railroad company, which was a. corporation of another state, through whose negligence it was alleged the Are was eaosed, to enforce the right by subrogation to recover pro tanto against, the railroad company for the loss, the lumber company having refused to bring action therefor or to join with complainants. Held, that ■ the lumber company was an indispensable party to the determination and adjustment of the liability of the railroad company, and the latter could not remove the cause upon the ground that there was a separable controversy.</p> <p>2. Same — Remand.</p> <p>Where a suit has been improperly removed, the duty to remand it cannot be affected by a claim of defendant that no 'cause of action is stated, on the merits; that being a question for the state court.</p> <p>3. Same — Federal Question.</p> <p>To render a cause removable as one arising under the constitution, laws, or treaties of the United'States, that fact must appear by the plaintiff’s statement of his own claim; and, if it does not so appear, the w^nt cannot be supplied by any statement in the petition for removal or in any subsequent pleading.</p> <p>4s Same — Remand.</p> <p>The fact that, subsequent to the removal of a cause, the parties have pleaded, and have taken depositions, does not affect the duty of the federal court to remand on discovering that the removal was improperly made; it being a matter for the determination of the state court what shall be done with the pleadings filed and the testimony taken.</p>

<p>Appeal from the Circuit Gourt of the United States for the Eastern District of Virginia.</p> <p>This case comes up on appeal from a decree of the circuit court of the United States for the Eastern district of Virginia, in equity. 93 Fed. 71. The bill is filed by William B. Strang, Jr., against 1he Richmond, Petersburg & Cai'olina Railroad Company and others. The nature of the appeal renders it necessary to set out somewhat in detail ihe allegations of the pleadings. The bill sets out the corporate character of the defendant, a corporation under the laws of Virginia and of North Carolina, with authority to acquire, all the property and works of the Virginia & Carolina Railroad Company, a company organized for the purpose of locating, constructing, equipping, maintaining, and operating a railroad from Richmond to a point on the line between North Carolina and Virginia, in Mecklenburg county, and authorized to extend, construct, equip, and operate its road from any point on the Virginia line to such point on the Raleigh & Gaston Raiiroad as should be found meet and practicable. It then alleges: That for the purpose of paying for rights ,of way, station grounds, and all other necessary lands and real estate, and for constructing, acquiring, completing, and equipping ihe lines of railway aforesaid, or which it should thereafter be authorized by law to construct, own, and acquire, the said Richmond, Petersburg & Carolina Railroad Company executed a mortgage to the Mercantile Trust Company of Baltimore, dated September 11, 1897, to secure certain bonds and coupons, the total issue of bonds not to exceed $2,300,000; bonds to be payable in 1917; interest at o per cent, per annum. That said mortgage conveyed io the trust company, in trust as aforesaid, all its line of railway and property described as follows: “Commencing at a point at or near Hermitage road, on the Richmond, Fredericksburg & Potomac Railroad, near the city of Richmond, in the state of Virginia, which, is to proceed via Richmond and Petersburg to a point at or near Ridgeway, in the state of North Carolina, which said main line of railway is one hundred and three (103) or more miles in length; and all second or additional tracks which the railroad now owns-, or may hereafter construct or acquire; and all lands, tenements, and hereditamentsacquired or appropriated, or which may hereafter be acquired or be appropriated, for right of way, and all easements and appurtenances thereto belonging; and all railways and rights of way, depot grounds, tracks, bridges, viaducts, culverts, fences, and other structures, depots, station houses, engine houses, ear houses, freight houses, wood houses, warehouses, machine shops, work shops, erections, and fixtures, whether now held or hereafter acquired, for the use of or in connection with the said main line or branches; also all locomotives, tenders, cars, and other rolling stock and equipment; all rails, ties, chairs, splice and angle bars, and machinery, tools, implements, fuel, and materials of every description, whether now owned or hereafter acquired, used, or acquired for the construction, operation, repair, or replacement of said main line and branches; also all leases, leasable interests, contracts, agreements, corporate franchises, and charters which it has now or may acquire, including the franchises to be a corporation; also all franchises connected with or relating to said main line and branches, or the construction, maintenance, or use thereof, now held or hereafter acquired by grant from the legislature or otherwise, including all corporate franchises exercised or possessed at any time by the railroad company, together with the income, advantages, and appurtenances in any way appertaining to the above-mentioned railway premises; and also all the income, tolls, rents, issues, and profits of said main line and branches.” That thereafter, to wit, on October 18, 1898, the railroad company entered into an agreement with plaintiff whereby the said plaintiff agreed to construct, furnish, and build a complete roadbed between Ridgeway, N. C., a point on the Raleigh & Gaston Railroad, and Hermitage road, Virginia, on the line of the Richmond, Fredericksburg & Potomac Railroad, a distance of about 103 miles, together with the necessary depots, water stations, section houses, buildings, and terminals, in consideration of which the defendant agreed to pay the plaintiff in its aforesaid bonds secured by the said mortgage, to an amount provided for therein, or in cash representing the proceeds of said bonds, which should not be less than $1,800,000. That the Richmond, Peters-burg & Carolina Railroad Company also agreed that that part of its railroad' between the points aforesaid, then completed, as well as that part nearly completed, should be turned over to plaintiff, with the right to issuance of bonds therefor under the aforesaid mortgage; and that plaintiff agreed, out of said bonds or the proceeds thereof, to reimburse the said defendant railroad for all sums expended by it on construction, evidenced by its receipted vouchers therefor. That defendant railroad company- further agreed that plaintiff should have full control of the engineering of said- railroad and the construction thereof, and the right to purchase all lands necessary therefor, as well as material and supplies; and further agreed to furnish plaintiff, to assist him in completion of the undertaking, all the necessary plans, specifications, drawings, engineers’ reports, surveys,- and data then in possession of defendant company. That defendant further agreed that the cost of construction of the road, as well as the equipment thereof, and the terminal facilities required, should not exceed the sum to be produced by sale of the bonds, $1,800,000, less $100,000, to be paid to the Colonial Construction Company; but that the cash derived from the sale of the bonds, not less than the sum stated, would be sufficient to construct the road so far as the .same was then uncompleted, and leave a fair and reasonable profit to plaintiff in addition thereto. The bill then charges: That De Witt Smith, a defendant, as president of the company, had knowledge of this contract, and then had and now has vested in him titles to the various terminal properties in Virginia and North Carolina, and contracts therefor, as -well as for rights of way, all of which he holds in his own name, but in fact in trust for the railroad company, in which plaintiff has an interest and right under his contract with the railroad company. That various of the bonds secured by the deed to the Mercantile Trust Company are now in possession of the railroad company, and that said company has the right to demand certification of other bonds on completion of the work and on acquiring title to rights of way and terminals:. all of which bonds, or the proceeds thereof, are to become, upon the completion of the aforesaid work by plaintiff or the acquirement of title, the property of plaintiff. That upon making the agreement with defendant railroad company the plaintiff entered into possession of said line of railroad, and is now in possession thereof, and is now and has been engaged in the preliminary work of construction thereof. That the plaintiff has demanded the delivery of the plans and specifications in possession of defendant, but it has refused to deliver the same. That this refusal has damaged the plaintiff, and has prevented him from placing his contracts for necessary. bridges, ironwork, mason work, and other necessary contracts for completion of said railroad. That since the agreement was made, tho railroad company and Smith, without the consent of plaintiff, are endeavoring and are threatening to cancel the mortgage and the bonds secured thereby upon which plaintiff relies as his security for payment of the construction of the railroad, and which bonds have been pledged and set apart as a fund for the payment of the sums to become due to plaintiff for construction of the railroad. That plaintiff is now, and has always been, ready and willing to complete and perform said agreement, and has entered upon the performance thereof, and is now in possession of said property, engaged in work thereon. After praying subpoena, this is the prayer of the bill: “The plaintiff:, therefore, prays for a decree enjoining the defendant tlie Richmond, Petersburg & Carolina 'Railroad Company and the Mercantile Trust Company from canceling said mortgage or the bonds, or any of them, secured by the same; adjudging that the defendant De Witt Smith holds the title of all terminals and rights of way along the line of said railroad, as well as all contracts therefor, as trustee for said railroad, and that an injunction issue restraining him from parting therewith, and compelling-him to transfer the title thereto to the defendant the Richmond, Petersburg & Carolina Railroad Company, and that said defendant railroad be enjoined from interfering in any manner, pending the hearing and determination of this cause, with the possession of tlie plaintiff of said railroad; requiring the defendant railroad company to fulfill said contract on its part; and declaring the said bonds secured by the mortgage aforesaid as a fund for the payment of the construction of said railroad, and requiring the defendant to issue and deliver the said bonds, and the defendant trust company to certify the same as required by the terms and provisions of said mortgage. That an injunction issue, pending tlie hearing and determination of this cause, restraining and enjoining the defendant tlie Richmond, Petersburg & Carolina Railroad Company and the Mercantile Trust Company from canceling, satisfying, or in any manner interfering with the said bonds and deed of trust aforesaid; and that, the defendant Smith be enjoined from conveying or assigning any of said rights of way or terminals now .in his name or under his control, or for which he has contracts, and that the plaintiff may he declared to have a lien thereon; and that the plaintiff herein may have such other and further relief in the premises as to the court may seem just and equitable, including a receiver to hold, manage, and operate the property of this defendant railroad pending the final determination of this cause.” Analyzing this bill of complaint, and stripping it of the verbiage of the pleader, it charges the making of "a contract between the plaintiff and the defendant railroad company. The subject of the contract was the construction of a railroad between two points not fixed, in which construction were included the roadbed, sidings, stations, terminal stations, bridges, culverts, and equipment, with no specifications or details enabling one to ascertain what the contract was; and when the work was completed it was to be paid for in bonds, or cash representing the proceeds thereof, not less than Sl,á00,000. Then follows an averment of breach of this contract, and a prayer which is, in effect, for the specific performance of the contract. The hill does not state whether the contract was verbal or in writing, or whether it has been reduced to form. The bill was filed January 2(>, 1899. The railroad company, on March 4th of tho same year, entered a general demurrer thereto, and on the same day filed an answer,-denying in detail each allegation of the bill. On the same day — March 4th — the' circuit, court hearing the bill and accompanying affidavits, and upon .the demurrer and answer of the railroad company, an order was entered setting the cause for a hearing on March 14th thereafter, and in the meantime issuing the ordinary restraining order. On March 18, 1899, the complainant filed an amended bill, reiterating all the averments of the original bill, reciting the order of March 4th, and the pleading of the defendant company, and averring the insolvency of the defendant railroad company, praying the relief asked for in the original bill. De Witt Smith demurred to the original and amended bill on March 18th. On March 22d, the railroad company filed a general demurrer to the amended, bill. It, on the same day, filed an answer insisting that, on the plaintiff’s own showing, the court had no jurisdiction of this cause, relying upon its answer to the original bill, and denying in toto the allegation of its insolvency. On March 22d, upon hearing, the circuit court dismissed the bill,' so refusing the injunction. To the decree the plaintiff excepted and the cause is here upon the following assignments of error: -“First. The court erred in dismissing the bill filed by the complainant in this cause, and dissolving the temporary injunction which had been granted thereon. The bill does not ask for the specific performance of a contract, but, on the contrary, shows the complainant to have been, at the time of filing the same, in possession of the road of said defendant company, and in a position to perform his contract. The aid of the court, by injunction, is asked only to prevent the interference of the defendants in his said possession, and to preserve in statu quo the funds out of which he was to be paid. Second. The court erred in deciding that the contract for the construction of said railroad set out in the bill of complaint was either vague, obscure, or uncertain. Third. The court erred in deciding that the allegation of insolvency, fully set out in .the bill of complaint and supported by affidavits, by reason of which the remedy at law would have been totally, inadequate, was not sufficient ground for the intervention of a court of equity. Fourth. The court erred for other reasons and matters appearing upon the fa9e of the said decree and the opinion made a part thereof.” Of these the fourth is so general that it cannot be considered.</p>

<p>In Equity. Suit to determine rights of owners of adjoining mining claims.</p>

<p>1. Costs — Power to Impose.</p> <p>The ultimate power to impose costs must be found in a statute.</p> <p>2. Same — Rule of Court.</p> <p>Under'the general power granted by congress to the federal courts in respect of costs, those courts may provide by rule for the taxation as costs of the expense of printing the evidence in equity cases.</p> <p>8. Commissioners’ Taxable Pees.</p> <p>Commissioners are entitled to 20 cents a folio, and no other compensation, for taking and certifying depositions to file, and that expense is taxable as part of the costs.</p> <p>4. Commissioners’ .Nontaxable Pees.</p> <p>Commissioners are entitled to 10 cents a folio for each copy of a deposition furnished to a party on request, but that expense is not taxable as part of the costs.</p> <p>5. Division of Costs.</p> <p>Where the bill was dismissed as to one of the three patents in suit, and was sustained as to the other two patents, the complainant recovered two-thirds of its costs from the defendants, while the defendants recovered one-third of their costs from the complainant.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This is an action to recover damages for the negligent killing of one Charles Singleton, the intestate and son of the plaintiff in error. The defendant is a receiver appointed by the court in which the suit was brought by an intervening petition. The death of the decedent was proximateíy due to a rear-end collision between two trains operated by the servants of the receiver sued. Both trains left Somerset, Ky., bound north, the first, a freight, about one hour before the last, a construction train, consisting of an engine and caboose, the caboose being in front. The freight train broke down a few miles out of Somerset. The construction train, following after, ran into the rear of the stalled freight occupying the track. The deceased, who was either inside or upon the rear platform of the construction caboose, was crushed and killed. The failure of those operating the stalled train to place torpedoes at a proper distance in rear of the train was the plain and conceded cause of the collision, though there was also evidence that the train dispatcher at Somerset failed to notify the construction train that -the freight train had preceded it, bound in the same direction. The decedent was a youth between 13 and 14 years of age, residing at Somerset He was frequently about the yard of the railroad company, and often made himself useful by voluntary assistance to trainmen. The company's rule prohibited all persons from riding on the construction train, and this was well known to the deceased, who had been warned against trying to ride on said train by its conductor as well as by members of his own family. Upon the morning of his death he was seen about the railroad yard, and rendered some assistance in switching, and when the collision occurred his dead body was found badly crushed between the end of the tender and caboose. There was some conflict in the evidence as to whether his presence on the train when it left Somerset was known to any of the receiver’s employes. The intervening iietition, on motion of the intervener, was referred to a special master “to hear the evidence * * * and report his findings and conclusions of both law and fact to the court.” The master reported that, the collision was the result of the gross .negligence of the railroad, but that the decedent was wrongfully concealed on or about said construction train, and his presence thereon unknown to the servants operating same, and that the receiver was therefore not liable to the plaintiff in error for damages. Exceptions by the plaintiff in error wore overruled, and the petition dismissed.</p>

This action was brought in the state court of common pleas of Lucas county, Ohio, and removed, on application of plaintiff in error, into the circuit court of the United States for the Western division of the Northern district of Ohio.

<p>Foreign Corporations — Jurisdiction in Suit against — Service of Process.</p> <p>A resolution adopted by the directors of an insurance company of another state, on its being authorized to do business in Kentucky, in accordance with Act Ky. April 5, 1893 (Ky. St. § 631), providing that, before authority is granted to any foreign insurance company to do business in the state, it must flle with the commissioner a. resolution of its hoard of directors, consenting that service of process on any agent of the company in the state or on Die state commissioner of insurance, in any action brought or pending in this state, shall he valid service upon said company, though such resolution is not limited by its terms as to time, and has never been repealed, cannot be held to confer authority to make service on the insurance commissioner, by force of the statute, after the company has ceased to do business in the state, and has withdrawn ali its agents therefrom.</p>

<p>1. Pleading — Amendments—Discbetion op Count.</p> <p>Tlie allowance of an amendment to a declaration, changing an allegation as to the citizenship of the plaintiff to conform to the writ, is within the discretion of the court.</p> <p>2. Federal Counts — Venue—Waivek of Objections.</p> <p>The objection that an action is brought in a district in which neither the plaintiff nor defendant resides is not waived by a defendant by attending at the taking of depositions by the plaintiff before the issues are ma.de up, nor by failing to file a plea in abatement.</p> <p>3. Same — Kesidence of Plaintiff.</p> <p>Plaintiff, who had previously been a citizen and resident of West Virginia, removed with his family into Virginia, where he bought a house, in which he resided with his family, paid taxes, and voted for some three or four years, after which he determined to return to West Virginia, and rented a house there, but before his actual removal he commenced an action in the circuit court of the United States in West Virginia against a corporation of California. Held, on a plea by defendant to the jurisdiction, that, even conceding that plaintiff had not lost his domicile In West Virginia by his removal, he had lost his residence, which was only regained by his actual return to the state to reside, and that at the time of the commencement of the action he was not a resident of the state, so as to give the court jurisdiction under the judiciary act of 1888.</p>

<p>New Triad — Effect of Sfectad Finding.</p> <p>Tbe fact tliat a special finding by a jury is against the weight of evidence does not afford ground for setting- aside its general verdict, where it is not inconsistent therewith, and where there is ample evidence to sustain the general verdict, outside- of the question to which the special finding relates.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This action was brought to recover damages for the refusal on the part of the National Capsule Company to perform a contract executed on the 8th of August, 1892, between that company and the Hall Capsule Company. The suit was instituted in the state court, and removed, on defendant’s application, into the drcuit court of the United States for the Southern district of Ohio. The contract was, in substance, one for the sale by the Hall Capsule Company to the National Capsule Company of certain patent rights, machinery, and its business of manufacturing empty capsules. Among the stipulations in the contract was one providing for the institution and prosecution of a suit for the purpose of having adjudicated the validity of certain patents, and the question whether another company, called the Warren Company, was infringing those patents. A more particular statement of the terms of the contract is not material for tho purpose of the case as now presented to this court. The due performance of that contract on the part of the National Capsule Company was guarantied in writing by the defendant in error, McCutcheon, and Charles At. Stephens, and the present suit is against defendant in error alone on the written guaranty. The trial in the court below resulted in a verdict in plaintiff’s favor for $10,000, on which, after overruling the motion for a new trial, judgment was passed, and the case is brought here for review. There was no exception on the trial in 1lie court below to any ruling of the court in the admission or rejection of evidence. There was no motion at the close of (he evidence to direct a verdict in favor of the defendant, and the verdict was a general one in favor of the plaintiff. There is in the record a hill of exceptions covering nearly 300 pages of the printed record, and purporting- to contain all of the evidence offered on the trial of the case in the court below. Alueli of this evidence consisted of letters, identified in the hill of exceptions only by reference to them as Exhibits 1 to 57. inclusive, with reference to which the recital in the bill of exceptions is, “The letters are specified below, without being copied in the record, hut are made part of the same.” The charge of the court was lull and specific in relation to the issues in the case, extending over IB closely printed pages of the record. The charge closed in a conversation between the judge and counsel of both parties as to the meaning and effect of certain parts of tho charge already given to the jury. This concluding part of the charge, with’ the only exception taken to the charge, was in the following language: “The Court: No doubt, that is a sound rule of law, hut how do you apply it in the present case? Mr. Matthews: I don’t apply it at all, except on this theory, that the contract still remains in force, except that part of it which compels the buying and fixing of infices was changed. Tho jury may have supposed that that was the same single contract. The Court: The rule in regard to suretyship in that respect is undoubtedly this: A guarantor and surely are the same things in the eye of the law; and the release, where- the principal contract, to which the party becomes a mere surety, is varied in any substantial respect without the consent of the surety, that bars the surety from his obligation, because he is in a position to say, ‘The contract as it now stands is one which I did not guaranty.’ Mr. Granger: In that connection, we will ask the court to charge the jury, as a matter of law, that the contract, by its terms, fixes tho maximum prices; it is no change in that contract to charge a less price. The Court: Undoubtedly nol. That Is correct. We will not prolong this discussion. The court is clear that the taking at a less price than the maximum agreed upon in the contract was not a violation of the contract, or, rather, not a change of it which would release the guarantor. (To which charge of the court counsel for defendant then and there excepted.)” The fourth assignment of error is to this part; of the charge, setting it out as required by the rules of this court. There is an assignment of error on the denial of the motion for a new trial. There are some other general assignments, not based on any question, ruling, or exception in the court below, otherwise than on the motion for a new trial. The contract itself was not made part of the pleadings, but introduced as a part of the evidence, and during the progress of the trial the question whether the contract was Illegal arose, as may he inferred, from the court’s instructions to the jury upon that subject. The case is now presented for consideration on motion to dismiss, with which is united a motion to affirm.</p>

<p>Bankruptcy — Opposition to Discharge — Fame Oath.</p> <p>Where a bankrupt, on a hearing on his application for discharge, produces to the court a written account, called a “Statement of Expenditures,” which purports to show in detail the disposition made of .a sum. of money which he is charged with haying secreted, and testifies to its truth, but such statement is in fact false and inaccurate, if the inaccuracies are the result of an intentional and fraudulent manipulation of figures, for the purpose of making a showing favorable to the hapk-! rupt, and not the consequence of an honest mistake, he is guilty of making a “false oath and account in a proceeding in bankruptcy,” within' the meaning of Bankr. Act 1898, § 29b, subd. 2, and his discharge must be refused. '</p>

<p>1. Bankruptcy — Filing Fee — Partnership Petition.</p> <p>"Where a partnership applies for the benefit of the bankruptcy lawi and files a petition for the adjudication of the firm as such, and also' separate petitions for the adjudication of the several partners, each; petition, with the accompanying schedules, constitutes a separate a.nd distinct “case,” within the meaning of the provisions of the act relating to fees of officers; and a deposit of the statutory filing fee of $25 must be made, not only for the partnership, but also for each member" of the firm who seeks an adjudication. • !</p> <p>2. Same — Time ob- Dbipositing Fbie.</p> <p>A deposit of the statutory filing fee by a proposed voluntary bankrupt, not within the exception in favor of paupers, is a condition precedent to the filing of the petition; but if the petition is placed on file; and an adjudication made without payment of such fee, the objection may he raised on the bankrupt’s application for discharge, and action on such application will be stayed until the filing fee is paid. 1</p>

<p>1. Bankruptcy — Costs and Expenses — Fee of Creditor’s Attorney.</p> <p>Where one ol* the creditors of a bankrupt, by his attorney, objects to the allowance of a claim filed by another creditor, the trustee declining tó interfere, and upon a contest and trial secures its rejection, thereby saving a considerable sum for distribution among the creditors generally, the attorney for such contesting creditor may be allowed a fee for his professional services rendered, to be paid out of the estate.</p> <p>2. Same — Attorney for Trustee — Compensation.</p> <p>Creditors of a bankrupt, at their first meeting, when they elect a trustee, should also elect an attorney to perform such services for the trustee as he may require, if they believe the services of an attorney will be necessary for the preservation of the estate. Failing such action on the part of creditors, the referee may authorize the trustee to employ an attorney, if satisfied that such a course is imperatively necessary in the best interest of the estate; and an attorney so employed will be allowed a. fee, of such amount as will actually compensate him for services rendered, chargeable as part of the expense of administering the estate.</p>

<p>1. Bankruptcy — Application por Discharge — Grounds op Opposition.</p> <p>It is no ground of opposition to the discharge of a bankrupt that the debts due to the objecting creditors were contracted in fraud, or that they were induced to sell goods to the bankrupt, and give him credit, by his false representations as to his financial condition at the time, and as to his business relations with a third person.</p> <p>3. Same — Sufficiency of Specifications.</p> <p>Specifications in opposition to a bankrupt’s application for discharge which allege that he could not account for the proceeds of goods sold, and that, “a short while prior to filing his petition,” he sold goods and paid debts contracted several months prior thereto, are too indefinite in substance, and too uncertain in respect to time, to defeat the application.</p>

<p>Petition for Eeview of an Order of the District Court of the United States for the Northern Division of the Eastern District of Missouri, in Bankruptcy.</p> <p>This proceeding invokes a revision under subdivision “b” of section 24 of (he bankrupt act (30 Stat. 544, 553, c. 541) of the rulings upon questions of law of tile United States district court in the matter of George P. Rosser, bankrupt. On April 7, 1899, the creditors of Rosser petitioned to have him adjudged a bankrupt, and their prayer was granted on May 11, 1899. At the request of the trustee appointed in this proceeding the referee in bankruptcy required the bankrupt, Rosser, to submit to an examination under subdivision 9, § 7, and section 21, of the bankrupt act. At this examination his testimony and that of various other witnesses was taken, but no notice was given to him that this examination or the testimony of the witnesses at, this hearing would be used to obtain, or that any application would be made for, an order upon him to deliver or pay over §2,500, or any other sum, to the trustee as a part of the property of the bankrupt estate. On July 20, 1899, in the absence of any preceding notice to Rosser that such an order was contemplated, the referee ordered him to pay over to the trustee §2,500, which the referee found in said order that Rosser had received about March 17, 1899, and had failed and refused to account for or to schedule as a part of his estate. This order was served on Rosser on July 25, 1899, and on August 4, 1899, ho answered that he was unable to obey said order, because he liad no money with which to comply with it. On August 14, 1899, tiie trustee filed a petition in the district, court in which he set forth the proceedings that have been recited, alleged that the bankrupt had refused to obey the order of the referee, and prayed that he might he adjudged in contempt of court, and he punished for such contempt Notice of this petition and of the application for an adjudication upon it was duly given to the bankrupt, and he answered that lie was never notified of the intention of the trustee to ask the referee to make the order upon him to pay over the $2,500, that he was never given an opportunity to show cause why said order should not be made, that it was made without giving him an opportunity to be heard in the premises, that he had not the present ability to comply with the order, and lie-prayed that the proceedings against him he dismissed, and that lie be given an opportunity to take the testimony of witnesses for the purpose of showing that lie was unable to comply with the order of the referee. The court denied his application to dismiss the proceedings, and to have an opportunity to take the testimony of witnesses, but announced that it would give the bankrupt an opportunity to be, cross-examined before the court upon any of the matters- and things upon which he had been examined before the referee, and upon any other matters tending to show what had become of the $2,500 he had been ordered to surrender, or tending to show his inability to comply with the order of the referee. Thereupon the case was set down for hearing on August 26, 1899. On that day the bankrupt appeared, and filed an answer to the citation for contempt, in which he averred that he was unable to comply with the order of the referee or to pay over the $2,500, because he had not the money or any part of it in his possession or under his control, and was unable to procure the same. He further averred in his answer that he borrowed the said sum of money on March 17, 1899, and that he had disposed of the same prior to the institution of the proceedings to have him adjudged a bankrupt, and had not then, or at the time of filing his answer, any control or ownership of said sum of money, or any part thereof, and that he was unable to inform the court of the disposition he had made of the money, because the disclosure of the facts in relation thereto would tend to incriminate him. After this answer was filed the bankrupt declined to be cross-examined, and thereupon the court adjudged that he was in contempt of court for refusing to obey the order of the referee to pay over the said sum of $2,500, and committed him to the custody of the marshal, to be held in captivity in the city jail until he should pay to the trustee the said sum of $2,500, or be otherwise discharged by due process of law. The bankrupt petitions this court to set aside the order and judgment committing him to jail upon the ground that the order of the referee was void because he had received no notice of. the charge against him upon which it was founded, or of the intention of the trustee to ask for such an order, and had had no opportunity to show cause why it should not be made until after it was made, and because the district court erred in refusing to dismiss the proceedings against him for contempt for failure to comply with the referee’s order, and in refusing to permit him to produce testimony to show that he was unable to comply with it.</p>

<p>In Bankruptcy. On exceptions to report of referee in bankruptcy recommending the discharge of the bankrupt.</p>

<p>1. Bankruptcy — Partnership Exemptions — Retiring Partner.</p> <p>Where two members of a firm signed a writing reciting that a certain sum of money was due to the third partner, which was to he paid in installments as stipulated, and that the latter should “he and remain a partner in the business until the full amount is paid,” and that security should be given to him, held,, that the transaction was not a conditional sale by the third partner of his interest in the firm and its property, but, an agreement-to-retire from tbe firm on tbe payment of tbe money; and, tbe condition not having been performed at tbe time the firm became bankrupt, he was still a member of it, and entitled to his statutory exemption out of its personal property.</p> <p>,2. Same — Exemption Out of Partnership Assets.</p> <p>In North Carolina, in ease of the bankruptcy of a partnership, where there are firm assets but no individual estate, each partner is entitled to receive, out of the partnership assets, the exemption allowed by the law of the state, provided tbe,other partners consent thereto; and the filing of their voluntary petition in bankruptcy is prima facie evidence of such mutual consent.</p> <p>.3, Same — Allotment Under Process of State Court.</p> <p>Where judgment is recovered in a state court against an insolvent firm, execution issued, and a personal property exemption allotted by the sheriff to each member of the firm, and, within four months thereafter, the firm becomes bankrupt, all proceedings under the judgment, including such allotment by the sheriff, are annulled by the adjudication in bankruptcy; and the trustee in bankruptcy, in setting off the exemptions of the bankrupts, may either adopt the allotment made by the sheriff, or make a new allotment, if the former is not satisfactory.</p>

<p>On Petition to Eeview an Order of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p>

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p>

<p>On Motion for Preliminary Injunction.</p>

<p>1. Patents — Substitution op Material.</p> <p>It was not invention to substitute wood for iron, especially in view of • the well-known utility of paper or leather as equivalents for iron. The use of wood as an equivalent for iron in many arts of more or less analogy deprives its substitution in the art of making pulleys of all claims of discovery.</p> <p>2. Same — Combination.</p> <p>Separate split thimbles, being old and well known in the art as an element of combination with a separable wood pulley, cannot be sustained, unless the claim is limited to the peculiar structural devices of the pulley described and claimed in the patent.</p> <p>3. Same — Novelty.</p> <p>The feature of “rim contact” is an essential feature of the separable pulley in the Dodge and Philion patent, No. 260,462. Defendants’ pulley, which does not have the rim contact, but uses struts between the spoke-arms, and which keeps the rims from contact, does not infringe.</p> <p>4. Same — Construction op Claim.</p> <p>Where a claim calls for a specific element asa feature of the combination, it is not admissible to broaden the claim so as to include a different and older method of consi ruction.</p> <p>5. Same — Plurality.</p> <p>The claim for patent upon a separable pulley of certain specific construction, in combination with “a separable split thimble interposed between said shaft and pulley,” cannot be broadened to cover a plurality of bushings, which is a mere carrying- forward of the original idea.</p> <p>(Syllabus by the Court.)</p>

<p>1; Patents — Invention.</p> <p>The third claim of the McNeal patent, No. 351,064, involved nothing but the method of strengthening the parts of a wooden separable pulley by means of a stay-bolt extending from the arms of the spoke-bars to the pulley rim. The novelty is doubtful, in view of prior analogous uses in the arts.</p> <p>8.. Same — Construction.</p> <p>The claim is entitled to only the most narrow construction, and must be confined to the stay-bolt and its screw-nut. Defendants use a wooden pin with glue to lock the parts together, and do not infringe.</p> <p>8. Same — Novelty.</p> <p>•■ The'Philion patent, No. 368,490, which involves the making of a pulley rim by gluing together the abutting ends of a number of segments to form an individual rim, and, second, íd gluing together a number of these individual rims and subjecting them to pressure, involves no invention, in view of the Dodge and Philion patent, No. 260,462. It is a mere carrying forward of old ideas, and does not involve invention.</p> <p>4.. Same — Process. -</p> <p>The method of uniting segments together and rims together by means of glue does not seem to constitute a process, but involves only mechanical operation.</p> <p>E. Same — Novelty.</p> <p>The Dodge patent, No. 456,722, for an angular hub-block bored to fit. a shaft, and detachably connected with the spoke-arms of a separable wood pulley, does not involve Invention, in view of the prior Dodge patent, No. 260,402. The angular hub-block or bushing of the one patent is not different in function from the round thimble or bushing of the other patent. It is a change of form without producing new results.</p> <p>(Syllabus by the Court.)</p>

<p>1. Patents — Jurisdiction or Suit for Infringement — Nonresident Defendant.</p> <p>Under Act March 3, 1897 (29 Stat. 695), which gives a circuit court jurisdiction of a suit for infringement of a patent in any district in which the defendant, shall have committed acts of infringement and have a regular and established place of business, and authorizes service upon the agent conducting such business, where a manufacturing corporation of Ohio, which there manufactures articles alleged to infringe, consigns them to a : second corporation, doing business in New York, which is given the exclusive right to sell the same within a given territory, being charged therewith at a fixed price, but privileged to return any part of the same and .‘receive credit therefor, and the manufacturing corporation pays the cost ‘ of advertising, furnishes catalogues, etc., the latter is a participator in the sales of such articles for use in New York, and the office of the second corporation is its regular, established place of business, within the meaning of the statute.</p> <p>2.. Same — 'Validity—Electric Switches.</p> <p>' The Thomson patent, No. 401,085, for a shield of insulating material to ■ control the place of the arc in breaking a circuit by means of an electric switch, and which is an addition to the prior combination of a magnet , ■ with a circuit breaker for the purpose of dissipating the arc formed, discloses patentable novelty, and is valid; also, held infringed.</p>

<p>1. Contracts in Name of Agent — Enforcement against Principal.</p> <p>A contract may be enforced against one shown to have been the real principal therein, although it purports to be the individual contract of the agent by whom it was made.</p> <p>2 Shipping — Construction of Charter — Liability of Charterer for Loss of Vessel.</p> <p>A charterer, who bound himself by the contract to return the vessel at the expiration of the term of hiring in as good condition as at the beginning, “fair wear and tear from reasonable use only excepted,” and who also explicitly undertook to be, responsible for any loss or damage to any part of the vessel, her equipment and furniture, and to secure the owner in a specified sum against all losses and damages which might occur to her, is not relieved from the obligation to pay the owner her value as fixed in the contract on a failure to return her by the fact that she was lost without fault on his part, since such contingency might reasonably have been anticipated, and his liability in that event provided against had such been the intention of the parties.</p> <p>3. Same — Damages for Loss of Vessel — Stipulated Value.</p> <p>It is competent for the parties to a charter to fix the value of the vessel therein as a basis of damages in the event of her loss, and such valuation is .conclusive upon them in the absence of fraud or mutual mistake, especially where the vessel was one built as a pleasure yacht, and having no determinable market' value.</p> <p>4. Same — Construction of Charter.</p> <p>The charter of á yacht required the charterer to pay a stipulated sum as hire during the term of the charter, to return the vessel in good condition at the expiration of the term, to be responsible for any loss or damage to her or her equipment or furniture, and to give security in the sum of $75,000 for the performance of the contract. It also provided that “for tlie purpose of this charter the value of the yacht shall lie considered and taken at the sum of $75.000,” and that the liability of the charterer should in no case exceed the sum of $75,000. Ueld, that the provision fixing the value of the yacht was solely for the purpose of determining the damages in case of her loss or injury, and that on her total loss while in possession of the charterer the owner was entitled to recover the full sum of $75,000, without deduction on account ol' the hire paid by the charterer.</p>

<p>Appeal from tbe District Court of the United States for the Eastern District of Virginia.</p> <p>This case comes up on an appeal from a decree of the district court of the United States for the Eastern district of Virginia, in admiralty. The steamship Indrani, on January 18, 1898, was lying at a wharf at Newport News. She was taking in cargo. To this end she had employed two boss stevedores', each having his own gang, and each doing separate work. One gang was engaged to load the ship with a general cargo. They were at work in hold No. 2. The other gang was engaged in loading her with grain by means of an elevator on the wharf. To this end they put a chute down through hatch No. 3. The ship, having been engaged in the cattle trade, had erected upon her upper or main deck a permanent set of cattle fittings or pens, the roof of which extended forward from, and about on a level with, the lower bridge or floor of the chart room, and was about seven feet above the main deck. This roof is referred to in the record as the “hurricane deck.” In this hurricane deck hatches were cut directly over and corresponding with the hatches on the main deck, but, being required by the underwriters to be left open for the purpose of ventilation for the cattle, these hatches had no covers, even at sea. They were guarded, while in port, by a wire manrope about three feet above the deck, rove through stanchions let into holes cut in the deck at each corner of the hatch. The method of reaching the forward hurricane deck from the wharf was- by means of a ladder reaching from the wharf to the lower bridge, opposite the chart room; thence by an alley around the rear of the chart room; and then forward, along its port side, out onto the deck. At about 3 o’clock on that afternoon, the vessel being ready to receive cargo, the libelant, Essex Holts, as header of a gang of stevedores, was sent into the lower (No. 2) hold, and commenced to load flour. He continued at work in this hold until 6, when the gang knocked off and went ashore for supper, returning at about 7 o’clock to their work. On each of these occasions libelant passed by hatch No. 3. Shortly after 7 o’clock a gang of men in the employ of the grain stevedore came aboard, went to the No. 3 hatch, and, taking down the manrope on the starboard side, inserted the grain chute in the hatch ready to load the grain. The chute passed down through hatch No. 3 into the main hatch. For this purpose two- out of the seven subdivisions of the cover of the hatch' were removed. After putting I he chute down, these men went away, leaving tho manrope on the starboard side of the hatch down, with a chute in the hatch. The libelant, at work in No. 2 hold, between 9 and 10 o’clock p. m., needing dunnage, sent out a man in search of one Enright to get it. This man came back, saying that it was too dark, and he was afraid to go. He then went himself; but he did not go by way of the passage on the port side of the ship, where the way was clear. He went straight aft from No. 2 hatch, and fell into No. 3 hatch down to the bottom of the vessel, injuring himself seriously. lie did not see the chute which was in this hatchway until he had reached the bottom and looked up at it. The libelant is the only witness as to the accident, and how and when It occurred. He does not himself give an understandable account of where it was in the hurricane deck hatch that he stepped in. Ilis testimony leaves the place where he stepped in uncertain, and there is a difficulty in comprehending how, if he fell through tho forward part of the hurricane deck hatch, as he testifies he did, he could possibly have gone through the main deck hatch, which was partly covered, and through the under deck and the orlop deck hatches, and have been found where he lay, in the bottom of the ship. There is conflicbin the testimony upon the question of lights on the deck. There were electric lights on the wharf, and there were lights about the ship and in the chart room near No. 3 hatch. The libelant had been a member of a stevedore’s gang for 27 or 28 years. The ship was lying with her starboard to the wharf.</p> <p>The court below heard the witnesses and found as follows; (1) That the respondent ship was guilty of negligence in allowing its hatch No. 3, in which libelant fell and sustained the injury sued for, to he and remain open at night, without proper guard or protector on one side thereof, and also in not having the same, while in this condition, properly and sufficiently lighted, and that the injuries sustained by the libelant were the result of these conditions. (2) That although, as between the steamship and the stevedore contracting to load the ship at said hatch, tho latter may he primarily liable, still the libelant is none the less entitled to recover in this case against tho respondent steamship. (3) That, notwithstanding the negligence of respondent as above stated, the lihelant was not himself free from fault, In that he did not exercise', as high a degree of care as he might have done in moving about a ship in the dark, with which he was not acquainted, and for this reason he should only recover for one-half of the damages sustained by him. (4) That the sum of 81,500 is a proper award to the lihelant, that being such an amount as the court thinks, under all the circumstances, taking into consideration his own negligence as aforesaid, he is equitably, justly, and fairly entitled to receive; and a decree may he entered for this amount, with costs.</p> <p>An appeal was allowed, and the cause is here on assignments of error directed to all the findings of the court.</p>

Action by the owners of a cargo of the steamship Strathdon to recover contribution from the shipowners to damage to the cargo resulting from a Are on the vessel during the voyage. From a judgment of the district court for the Eastern district of New York (94 Fed. 206) in favor of defendants, the complainants appeal.

<p>In Admiralty. Libel for demurrage.</p>

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

<p>1. Partition — Parties—Intervention.</p> <p>A part owner of a tract of land who is not made a party to a suit for its partition, hut whor claims as a tenant in common with the parties, and from the same source of title, may properly be allowed to become a. party by Intervention, being in fact a necessary party to a decree for its partition.</p> <p>2. Same — Jurisdiction to Determine Interests oe Parties.</p> <p>Where the title of a complainant in a suit for partition is not denied, but only the quantum of his interest is disputed, the court has jurisdiction to determine the interests of the respective parties, and there is no occasion for ordering an issue at law, or for suspending the cause in equity until an action at law has been had, for the purpose of trying title.</p> <p>3. Same — Scope op Suit — Litigation op Adverse Titles.</p> <p>When a party is permitted to intervene in a suit for partition because he claims to hold an estate in common with the other parties to the suit, .he cannot in that suit set up a title adverse to the common title, but to assert such title he must proceed in an independent action at law.</p>

Samuel Thomas, as complainant, instituted a suit in equity in the court below, having for its chief purpose the foreclosure of a mortgage on the Cincin. nati, New Orleans & Texas Pacific Railway. Pending the litigation, the appellant S. M. Felton ivas appointed the receiver of the court in the cause, and was charged with the duty of continuing the operations of the railroad.

<p>In Equity. Submitted on pleadings and proofs.</p>

<p>This was a suit in equity by a holder of bonds of the defendant railroad company to set aside a release of the mortgage securing the same, made by the trustee in accordance with the terms of the mortgage.</p>

This is a suit originally brought in the superior court, of Cincinnati, and thence removed, upon the petition of the defendant, into the circuit court of the United States for the Southern district of Ohio, in the Western division thereof.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This is an appeal from an order which dismissed a bill of review upon demurrer. The bill was filed on April 20, 1898, and sought a modification of a decree of the court below' rendered on December 22, 1897. The material facts it set forth were these: On July 3, 1894, 3. M. Phelps and A. O. Phelps made their promissory note for $5,927.70 on account of a debt which they owed to the appellants. Afterwards A. O. Phelps made his individual note for this indebtedness, and induced the appellants, by false representations, to accept that note in lieu of the joint note. On June 3, 1890, the appellants obtained a judgment against A. O. Phelps upon this note for $0,881.25, and caused an execution to be issued thereon, which was returned nulla bona. Meanwhile A. O. Phelps, for the purpose of defrauding the appellants out of their debt, made to the appellee Adolph Sloan, as trustee, a deed of trust of his lands to secure an alleged ■ indebtedness of $10,279.38 to the appellee the Lawrence County Bank, and alleged debts of $1,000 to each of the appellees F. G. Williams, Mary A. Lester, and 3. M. Cook; and the bank, for the purpose of defrauding the' appellants, of preventing them from collecting their debt, and of covering up the land, extended the timé of payment of its. claim- of $10,279.38 for five years. Thereupon the appellants brought suit in the court below to reinstate the joint note of A. O. Phelps and ,T. AT. Phelps in place of the separate note of A. O. Phelps, and to set aside the trust deed; and on December 22, 1897, a decree was rendered in that suit to the effect that the joint note should be substituted for the separate note, and. that J. M. Phelps should pay it. The evidence in that suit indicated that the deed of trust to secure the Lawrence County Bank was made to hinder and delay the collection of the appellants’'debt, but the court declared that as J. AL Phelps was amply solvent, and the decree against him would be sufficient to enable the aiipeüants to recover the debt, it would not carry the adjudication further than was necessary to attain the ends of justice, and for this reason it denied any further relief. The appellants prayed an appeal worn this decree, hut the appellees paid off the decree, so that they could not prosecute their appeal to a hearing. At the time of the execution of the trust deed, A. C. Phelps owed another debt to the appellants, upon which they recovered judgment on December 26, 1896, for ¡fí)8,641.41. On June 18, 1897, $40,708.00 was paid on this judgment, and the balance has not been paid. The appellants allege that they could not include this latter judgment in tlieir suit without making their bill multifarious, and. that the decree refusing to set aside the deed of trust in that suit is a conclusive adjudication against them, and bars a new suit for that purpose upon their second judgment; and for this reason they pray that the decree of December 22, 1897, be so modified as to adjudge the trust deed to- Adolph Sloan to have been fraudulent in so far as it undertook to secure the payment of the debt to the Lawrence County Bank; that the land described in that deed he sold, and the proceeds thereof, so far as the interest of the bank is concerned, be applied to the payment of the second debt to the appellants, or, if this relief cannot be granted, that the decree be so modified as to dismiss the suit in which it, was rendered, without prejudice to the rights of the appellants to proceed against the bank and Sloan.</p>

<p>1. Appeal — Supersedeas.</p> <p>By virtue of section 11 of the act creating the circuit courts of appeals (Sapp. Rev. St. p. 905), Rev.-St. § 1007, is made applicable to appeals to and writs of error issued, by such courts, and, unless an appeal is perfected, or a writ of error sued out, and served within 60 days, Sundays ex- . eluded, after the rendition of the. decree or judgment complained of, it is not within the power of a judge of the circuit court of appeals to allow a supersedeas.</p> <p>2. Garnishment in Attachment Shit — Effect of Judgment for One Defendant.</p> <p>, The, rendition of judgment in favor ot one of several defendants in an attachment, suit does not operate to terminate proceedings against a garnishee, who, by his answer, denied, indebtedness to any except such defendant, where the plaintiff claims ‘■his indebtedness to other defendants, against whom judgment was rendered, and has taken the proper steps to join issue upon the garnishee’s answer.</p> <p>8. Appeal — Review of Judgment Discharging Garnishee — Kansas Statute.</p> <p>Gen. St. Kan. 1889, p. 1521, § 567, which provides that a writ of error to review an order discharging or modifying an attachment or a temporary injunction shall be Hied within a time to be fixed by the Court, not exceeding 30 days from the time such order was made, otherwise the order shall become operative, and be carried into effect, lias reference only tc interlocutory orders, and does not affect the time within which a writ ol' error may be filed to review a final judgment which has the effect of releasing a garnishee, which is governed by the general provisions for the review of judgments.</p> <p>4 Same — Rules Governing in Federal Courts — State Statutes.</p> <p>Section 11 of the act creating the circuit courts of appeals, which permits a writ of error to be sued out for the review of a judgment at law at any time within six months, and Rev. St. § 1007, authorizing the allowance of a supersedeas within 60 days, govern as to the time within which a writ of error must be issued or a supersedeas obtained in that court, regardless of the provisions of state statutes.</p>

<p>Iii 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 Eastern District of Pennsylvania.</p>

This case is before this court for decision upon the following facts and circumstances: The action is founded upon 500 coupons clipped from 100 bonds which were issued by the city of Pierre, S. D., on October 1, 1891, to refund its then outstanding indebtedness. One hundred of the coupons in suit matured October 1, 1895, and an equal number of the remainder on April 1, 1896, October 1, 1896, April 1, 1897, and October 1, 1897, respectively.

This case was before this court on writ of error at a former term. Insurance Co. v. Berlin, 33 C. C. A. 274, 90 Fed. 779. The statement of the case as there made may for convenience be repeated here, correcting a single error as to the date when the first premium note became due, which was May 15, 1895, instead of February 15.

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

This is an action in assumpsit instituted December 5, 1898. for tlie breach of a contract dated February 3, 1891, by which the defendant company agreed with the plaintiff company to receive from it during the year 1891, and pay for, a large quantity of salt, the plaintiff’s cause of action having accrued- on January 1, 1892. Tlie defendant pleaded limitations.

This suit arose in this way: On June 8, 1803, the appellee Atterson W. Rucker had a judgment against the appellant, Jerome B. Wheeler, for $801,-670.87, and an appeal from that judgment was pending in the supreme court of the state of Colorado.

In Bankruptcy. On motion for the dissolution of an injunction and for the delivery of property of the bankrupt to petitioner.

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p>

In Bankruptcy. On an application by attorneys for the bankrupt for allowance of a bill of fees for services rendered on behalf of the bankrupt in the course of the proceedings, amounting to $1,635, as itemized for retainer and per diem charge’s. The referee certifies that the bankrupt has disobeyed the order of the court requiring payment of certain funds withheld from the trustee, has absconded, and stands adjudged in contempt.

<p>In Bankruptcy. On review of decision of referee in bankruptcy.</p> <p>Within four months prior to the filing of the petition in bankruptcy in this case, one Brady recovered a judgment against the bankrupt, on a claim for wages earned by him as a clerk in the bankrupt’s store, amounting to $108.33, and a claim for money loaned, and for costs. In the bankruptcy proceedings, Brady proved his debt -against the bankrupt for the wages so earned as an unsecured debt, not relying upon the judgment, and surrendered to the trus'ee in bankruptcy certain property which he had caused to be attached under the judgment. On a re-examination of the claim, the trustee in bankruptcy opposed the allowance of the claim as a debt entitled to priority of payment under the provisions of the bankruptcy act.</p>

On Petition for Review of a Decision of the District. 'Court of the United States for the District of Kentucky, in Bankruptcy. The petitioner is a creditor of the Schaefer Brewing Company, a corporation of the state of Kentucky, which was declared a bankrupt upon the petition of creditors in the district court of the United States for the district of Kentucky.

<p>1. Bankruptcy — Provable Claims — Rent.</p> <p>Where a tenant of realty, under a lease for a term of years, becomes 'bankrupt, the landlord is entitled to prove a claim against bis estate only for rent due at the time of the filing of the petition in bankruptcy, not for rent which would have accrued during the remainder of the term'. Such unacerued rent is not a fixed liability absolutely owing at the time of the bankruptcy, but only an unmatured obligation to pay in the future a consideration for the future enjoyment and occupancy of the premises.</p> <p>2. Same — Unliquidated Claim for Doss of Rent.</p> <p>Where a tenant, under a lease forbidding assignment without the landlord’s consent, made a general assignment for the benefit of his creditors, and afterwards became bankrupt, and the landlord assumed control of the property, and leased it to the trastee in 'bankruptcy, receiving compensation out of the estate for the time it was occupied by the latter, and then resumed possession, and moved for the liquidation of his claim against the bankrupt for damages for breach of the contract of lease, in order that it might be thereafter proved against the estate, held, that such claim was not provable in bankruptcy, and the motion should be denied.</p> <p>3. Same — Cost op Restoring Alterations.</p> <p>A lease of realty provided that the tenant might make alterations in the premises, he agreeing to restore the property, at the expiration of the lease, to its former condition. Before the end of the term the tenant became bankrupt, and the landlord resumed possession of the premises, and leased them to the trustee in bankruptcy, afterwards seeking to prove, a claim against the estate in bankruptcy for the estimated cost of restoring the property. Reld, that (he claim was not provable, as the clause in the lease contemplated the expiration of the lease by its own terms, not by re-entry by the landlord.</p>

<p>Customs Duties — Appraisal—Allow arce for Damage.</p> <p>Under Customs Administrative Act 1890, § 23, providing that “no allowance for damage to goods, wares and merchandise imported into the United States shall hereafter be made in tbe estimation and liquidation of duties thereon,” hut that the importer may abandon to the United States all or any portion of the goods included in any invoice, not less than 10 per cent, of the total value or quantity of the invoice, and be relieved from the payment of duties on the portion so abandoned, an importation of pineapples in bulk included in a single invoice must be considered as a whole, and the importer is entitled to no allowance on account of damage to or deterioration of the same, hut must pay duty on the entire invoice, unless a portion equal to 10 per cent, thereof is abandoned.</p>

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

The defendant in error, William Hampton, was indicted in the district court of the United States for the Western district of North Carolina, in proper form, for perjury in making a false oath before… Held: and the motion was sustained; and the judgment arrested. The United States, through its attorney, prayed a writ of error, and has brought the case here.

This is a bill in equity to restrain the infringement of patent No. 440,230, granted February 10, 1891, 1o W. F. Hoyt for an improvement in grain-drills. Tlxe court below held the patent valid, and that the defendant had infringed Ihe first 'three claims, but (hat the, evidence failed to show the sale of any drills embodying the elements of claims 4 and 5. The sixth claim of the patent was not involved.

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

These causes come here upon appeals from decrees of the district court, Southern district of New York. There are four libels and cross libels, arising out of the same transaction.

<p>Contracts — Persons Bound.</p> <p>A part owner of mining claims, whose interest was not of record, but who assented to the bonding of the same by the record owner, has no standing in equity to repudiate a conveyance of his interest by bis co-owner in accordance with the terms of the bond, on the ground of a private agreement between them that such conveyance would not be made unless the purchaser also took certain other claims bonded separately; nor is it material that the purchaser had knowledge of complainant’s interest, the latter being bound by the terms of the bond to which he assented.</p>

<p>In Equity. ' On demurrer to bill.</p>

Action by John Chiatovich against L. J. Hanchett and another to recover for an alleged libelous publication. From a judgment in favor of plaintiff, defendants bring error.

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

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

<p>Counties — Railroad Bonds — Recital—Estoppel.</p> <p>Where’ county bonds issued in aid of a railroad recited that they were issued in accordance with a certain act to enable counties, townships, and cities to aid in the construction of railroads, and in pursuance and in accordance with the rote oí a majority oí the qualified electors of the county at a special election, regularly called and held therein on a certain day, the county was estopped from claiming that the bonds were void because the proposition which received the favorable vote of the electors was to issue bonds due in 30 years, but payable on call in 10 years, while the bonds actually issued bore interest for 30 years, and were not payable, on call or otherwise, until the expiration of that period.</p>

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

On October 26, 1883, John Munson, the appellee, recovered a judgment in the circuit court of the United States for the district of Colorado against the Henriett Mining & Smelting Company, Limited, of London, England, on account of personal injuries sustained by him through the negligence of the company while working in its mines.

This case was tried and determined below on demurrer to the complaint, which was adjudged insufficient to sustain a judgment.

Colorado. On October 2S, 1898, the Colorado Fuel & Iron Company, a corporation of the state of Colorado, exhibited its bill of complaint in the circuit court of the United States for the district of Colorado against the Southern Pacific Company, a corporation of the state of Kentucky, and against numerous other railroad companies which, did business in connection with it, for the purpose of preventing said railroad companies from putting in force freight rates on merchandise…

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

Tu Error to the Circuit Court of the United States for the District of Minnesota.

<p>Bankruptcy — Appeal—Time of Taking Appeal.</p> <p>Where the appellant, within 10 days after a decree of the district court adjudging him a bankrupt, prayed an appeal therefrom, which was allowed by the judge, and filed an appeal bond, but the prayer for the appeal, and its allowance, and the citation and service thereon were not filed in the district court until after the expiration of the 10 days, held, that the appeal was not “taken” within the time limited by Bankr. Act 1898, § 25a, and must be dismissed.</p>

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

<p>Bankruptcy — Petitioning Creditors — Wife of Bankrupt.</p> <p>Where the law of the state permits the creation of enforceable debts as between husband and wife, a married woman who is an actual creditor of her husband in good faith, having a claim against him which would be provable in bankruptcy, may join in a petition in involuntary bankruptcy against him, or, if such claim amounts to $500 or over, and all his creditors are less than 12 in number, she may maintain such petition alone; but her alleged debt will be carefully scrutinized, to prevent fraud upon other creditors.</p>

<p>In Bankruptcy. On exceptions to ruling of referee on claims of Yan Patten & Marks, creditors.</p>

<p>1. Bankruptcy — Bee op Creditor’s Attorney — Lien.</p> <p>Where a creditor claims priority of payment out of the estate of a bankrupt on the ground of his having a lien on property of the bankrupt, and is opposed, by the trustee and by other creditors, the attorney for such claimant, who successfully prosecutes the claim in the court, of bankruptcy, and secures its allowance, is entitled to a lien for his services on the fund thus secured for his client; and the court of bankruptcy has jurisdiction to determine the right to such lien, fix its amount, and enforce it in the distribution of the property.</p> <p>2. Same — Triad by Jury.</p> <p>In a proceeding in a court of bankruptcy to determine the amount to be allowed as a fee to the attorney of a creditor out of such creditor’s distributive share of the estate, a trial by jury may be allowed in the discretion of the court, but cannot bo claimed as a matter of right, proceedings in bankruptcy being equitable in character.</p> <p>8. Same — Unauthorized Distribution by Trustee.</p> <p>Where a trustee in bankruptcy has paid to a lien creditor of the bankrupt his distributive share of the estate, but without any warrant or order of the referee or the court so to do, and the court afterwards-determines that such creditor’s attorney is entitled to a lien on the fund for his services in securing its allowance, the money must be regarded as still in the hands of the trustee, and he will- be required to satisfy the claim of the attorney.</p> <p>4. Same — Amount of Fee.</p> <p>Where an attorney representing a lien creditor of a bankrupt received from his client a retainer of $250, and .successfully prosecuted the client’s, claim in the court of bankruptcy, expending not more than 35 days of professional labor upon it, and receiving payment from another for a material part of his work, and the amount finally established as due to the creditor and allowed out of the estate was $7,300, and the referee in bankruptcy decided that the attorney was entitled to receive out of this sum a fee of $2,500, held, that the allowance was excessive, and should be reduced to $1,500.</p>

<p>In Bankruptcy. On petition for adjudication in involuntary bankruptcy.</p>

In .Bankruptcy, This is a case of involuntary bankruptcy. For a period of over two years prior to November 8, 1899, the bankrupt carried on business in the city of Spokane as a retail dealer in hoots and shoos, and until February, 1899, he appears to have conducted his business honestly and successfully, so that he was able at that time to issue a statement of the condition of Ms business as a basis for credit, which gave him good standing as. a merchant, and thereafter he…

James Haynes, William Johnson, William F. Gilliland, and Wilson Kountz, the plaintiffs in error, and one Nicholas Q. Patterson, since deceased, were in-dieted by the grand jury of the district court of the Third judicial district of the territory of New Mexico for violation of the provisions of section 5508, Rev. St. U. S., and section 3 of chapter 149 of the act of February 25, 1885 (23 Stat. 321). There were two indictments against the parties, each containing three counts.

The writ of error in this case is brought to review a judgment in a criminal case whereby Frank M. McBride, the plaintiff in error, was sentenced by the district court of the United States for the, district of Utah to imprisonment for the term of four years in the Utah state prison for the crime oil embezzlement.

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

This is a suit to restrain infringement of two patents relating to systems of electrical distribution granted to Tilomas A. Edison. The complainants are two corporations, one of which is the owner of the patents, and the other a licensee under the first for the city of Grand Rapids, Mich. The defendants are two corporations, — the Peninsular Light, Power & Heat Company and the Lowell Water & Light Company.

<p>1. Patents — Infringement—Computing Soales.</p> <p>The Pitrat patent, No. 885,005, for improvements in weighing and price scales, claim 12, construed, and held not infringed.</p> <p>2. Same. ■</p> <p>The Culmer patent, No. 486,663, for improvements in computing scales, claim 1, held not infriiiged. !</p>

<p>1. Shippings — Construction of Charter — Lay Days.</p> <p>A charter party, as modified by further agreements between the parties, ■construed with reference to the number of lay days allowed for loading and .discharging cargo. 1</p> <p>2. Same — Demurrage—Delay Due to Negligence of Charterer.</p> <p>Where charterers neglected to advise their agents at the port of destination of their agreement to attend to the entering of the ship at the custom house upon her arrival, by reason of which such agents refuséd to act, and a delay of three days was caused in having the ship entered, the owners were entitled to include such days in the lay days allowed by the charter for discharging.</p>

The libel in this case was filed for the purpose of recovering damages ensuing upon a collision which took place in the early morning of the 20th, of September, 1888, between the libelant’s schooner, the Owaseo, and the claimant’s steamship, the Minneapolis, just below the mouth of the Detroit river, where it opens into the lake. The Owaseo had, during the night before, been brought down in a tow, of which she was the rearward vessel, by a tug.

<p>1. Collision — Moving and Moored Vessel.</p> <p>A moving vessel must be held, liable for the damages caused by colli- • sion with one moored, unless she overcomes the presumption of fault arising from the fact of such collision; and she cannot be exonerated although it appears that the negligence on her part was slight, and that the collision was more the result of accident than such fault.</p> <p>2. Same — Steamer Overlapping Dock.</p> <p>Where, by the prevailing custom, and as a matter of necessity, a steamer moored overlaps her own dock, she cannot be charged with fault on that account contributing to a collision.</p> <p>8. Same — Damages Recoverable — Demurrage.</p> <p>Demurrage is not recoverable in a suit for collision where the vessel, when injured, was at her dock, undergoing repairs, and her place had been taken by another, belonging to the same owners, and it does not ap- ,. pgar that their business was in fact interrupted.</p>

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

<p>Receivers — Advances—Priorities.</p> <p>Where some of the creditors of a corporation in the hands of a receiver advance money for the purpose of compromising a demand against the company and take the notes of the company for the money so advanced without an order -of court authorizing the borrowing of money for such purpose, and without any undertaking on the part of the receiver that they shall be preferred creditors to the extent of the amount advanced, they are not entitled by reason of such advance to any priority of payment out of the assets.</p> <p>(Syllabus by the Court.)</p>

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

Tim appellant, W. li. Mack, sought by this suit to obtain a decree for the cancellation of’a. deed of conveyance of real estate executed jointly by'himself and C. A. Spencer on February 28, 1895, to the Consolidated WaterPower Company, one of the appellees.

<p>1. Tax Lien — Foreclosure—Estate Passing by Sale.</p> <p>While a tax lien attaches to the land itself, without regard to individual ownership, a part only of such land, or an interest therein less than the entire estate, may pass, by legal intendment, under a foreclosure of such lien; and under the statute of Indiana (3 Burns’ Rev. St. 1894, § 8640) which authorizes the foreclosure of an invalid tax deed by a suit to which all persons having interests in the land of record shall be made parties, and provides that the equity of redemption of all the defendants shall be foreclosed by the decree therein, where the owner of a life estate was made a defendant in such a suit, but the remainder-man was not, and the land was sold under the decree therein for the full amount of such decree, the purchaser acquired, and acquired only, the life estate, and the lien upon the interest of the remainder-man was discharged, although both the decree and the deed, executed thereunder purported to deal with .the entire estate.</p> <p>2. ■ Same — Right of Redemption — Indiana Statute.</p> <p>Under 3 Burns’ Rev. St. Ind. 1894, § 8640, providing for the foreclosure of tax deeds found invalid in suits brought by the holders to quiet title, and that “the proceedings in such cases shall be conducted in the same manner, as near as may be, in conformity with the practice in the case óf foreclosure of mortgages,” the statutes of the state giving the right of redemption within one year from all sales “on execution or decretal order” apply to sales made under decrees In such suits, and the right of the purchaser to a deed does not mature until one year after ihe sale.</p>

<p>1. Removal of Causes — Action Involving Construction of Surveys of Land under Acts of Congress.</p> <p>Where, by the averments of plaintiff’s petition in an action begun in a state court to quiet the title to certain real estate, it appears that plaintiff acquired title under an act of congress, and that the real question in controversy is the proper construction of surveys of land made under the authority of acts of congress, and that the amount in controversy exceeds the sum of $2,000, exclusive of interest and costs, a federal question is shown to be involved, within the meaning of the act providing for the removal of causes to the federal courts.</p> <p>2. Same — Time for Application — Right of New Defendants.</p> <p>After the expiration of the time for the original defendant to plead, in an action to quiet title in the state court, plaintiff amended his petition, making other parties defendants, and alleging that they claimed some right, title, or interest in the land in controversy adverse to the plaintiff, but not averring that such interest was acquired under the original defendant. Held, that since the case involved a federal question, which would have entitled the original defendant to remove the case to the federal courts, the parties made defendants by the amendment were not precluded from obtaining a removal because the time had elapsed within which the original.defendant could apply therefor.</p>

<p>1. Action against United States — Answer.</p> <p>In a suit against tbe United States under the act of March 3, 1887 (24 Stat. 505), a failure to file answer and notice within the period prescribed by section 6 of that act is not a jurisdictional defect, but only an irregularity which may be waived.</p> <p>2. Contracts — Construction.</p> <p>Where the United States charters a steam-tug for attendance on other vessels, not possessing the power of self-propulsion, engaged in government work at Cross Ledge Light in Delaware Bay, in order to remove them to a place of safety in case of stress of weather or accident, not furnishing the crew or pilot of such steam-tug, competent knowledge is required on the part of those having the tug in charge of the waters of that portion of the bay including the depth of water and channels between Cross Ledge Light and Morris River which is the most convenient and accessible haven of refuge, and the United States in engaging the services of the steam-tug had a right to assume that her master or pilot possessed such knowledge or at least that she was provided with a suitable chart of the bay from which such knowledge might be derived.</p> <p>3. Same — Sufficiency of Appbiances.</p> <p>The owner of a barge, not self-propelling, in contracting with the United States for the chartering or hiring of such barge by the latter, undertook that she should be “in first-class condition, fully equipped, with all the necessary anchors, lines, chains, pumps, etc.,” and that she should be “in charge of a competent man to be selected and paid” by the owner; the contract also providing for an inspection of the vessel by the United States • before it should enter the service of the latter. Held, on the facts, that the provision for inspection was a stipulation on the part of the United States reserving to it the right to decline to permit the vessel to enter its service should the United States be dissatisfied with her condition, find was not intended to nor did it directly or indirectly operate to relieve the owner of his obligation that the vessel should be in proper condition, with sufficient equipment and in charge of a competent, man.</p> <p>(Syllabus by the Court.)</p>

<p>On Motion by Defendant for Direction of a "Verdict.</p>

<p>1. Monopolies — Action for Damages under Anti-Trust Aot — Limitation.</p> <p>An action under Anti-Trust, Act (Act July 2; 1890; 20 Stat. 210) § 7, providing that “any person who shall he injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit court of the United States, * * * and shall recover three fold the damages by him sustained,” is not an action for a penalty or forfeiture, within Rev. St. § 1047, prescribing a limitation of five years for a “suit or prosecupón for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States,” hut one for the enforcement of a civil remedy for a private injury, compensatory in its purpose and effect, the recovery permitted in excess of damages actually sustained being in the nature of exemplary damages, which does not change the nature of the action, and such action is governed as to limitation by the statutes of the state in which it is brought. .</p> <p>2. Same — Tennessee Statute.</p> <p>An action brought under such section, in which the right of recovery is based on an alleged exorbitant charge made by defendant to plaintiffs for manufactured articles purchased, by reason of a combination or trust entered into- by defendant with others for the purpose of monopolizing trade in violation of the act, is for an injury to personal property, and comes within Shannon’s Code Tenn. § 4470, which prescribes a limitation of three years for “actions for injuries to personal or real property,” being, in effect, the same as an action on the case for the recovery of the money which plaintiffs were illegally compelled to pay in excess of the fair market value of the articles purchased.</p>

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

<p>Oil motion for new trial filed by plaintiff.</p>

<p>Appeal — Time of Taking — How Perfected.</p> <p>An ¿ppeal is not taken until the order allowing the same and the bond are filed in the court in which the decree or order appealed from is entered, and this must be done within the time allowed by statute for taking the appeal.</p>

<p>At Law. Action to recover stockholder’s additional liability oi $60,200 under the constitution and laws of Kansas.</p> <p>Facts.</p> <p>The plaintiff is a citizen of Kansas and sues as receiver of the Interstate Toan & Trust Company, a corporation organized under (he laws of that state .July 22, 1885. The defendant is a citizen of New York, and was and is the owner of 602 shares of the capital stock of said loan and trust company of the total par value of $60,200. On the 31st of December, 1897, one E. B. Crissey recovered a judgment against the said company for $6,792.20 and on the 5th of June, 1899, another judgment was recovered by the same plaintiff for $5,289.50. In 1896 one Hannah G. Streeter recovered a judgment against the company upon «'hich upwards of $2,000 is still due. Upon each of the three judgments an execution was duly levied and returned unsatisfied. In addition to these judgments there is a claim against the said company of $500 and interest, not reduced to judgment. On the 9th of June, 1898, the plaintiff was duly appointed receiver of the said company and subsequently by order of the court was directed to invoke the provisions of sections 14 and 15 of the Kansas statute, published January 11, 1899. These sections are as follows:</p> <p>“Sec. 14. That section 32, chapter 23, of the General Statutes of 1868, be and (be same is hereby amended to read as follow: See. 32. If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot ho found any property upon which to levy such execution, such corporation shall be deemed to be insolvent, and upon application to the court from which said execution was issued, or to the judge thereof, a receiver shall be appointed, to Hose up the affairs of said corporation. Such receiver shall immediately institute proceedings against all stockholders to collect unpaid subscriptions to the stock of such corporation, together with the additional liability of such stockholders equal to the par value of the stock held by each. AÍ1 collections made by the receiver shall be held for the benefit of all creditors. and shall he disbursed in .such manner and at such times as the court may direct. Should the collections made by the receiver exceed the amount necessary to pay all claims against such corporation, together with all costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, as the court may direct; and in the event any stockholder has not paid the amount due from him the stockholders making payment shall be entitled to an assignment of any judgment or judgments obtained by the receiver against such stockholder, and may enforce the same to the extent of his proportion of claims paid by them.</p> <p>“See. 15. That section 46, chapter 23, of the General Statutes of 186S, be and the same is hereby amended to read as follows: See. 46. The stockholders of every corporation, except railroad corporations or corporations for religious or charitable purposes, shall be liable to the creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of insolvency, and to be collected by a receiver for the benefit of all creditors."</p> <p>The act of January 11th repealed sections 6, 9, 24, 32, 41, 44 and 46 of the Kansas General Statutes of 1868. Sections 32 and 44, so repealed, provided as follows:</p> <p>“Sec. 32. If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment”</p> <p>“Sec. 44. If any corporation, created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; and if judgment be rendered, and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution, for the recovery of the portion of such debt for'which they were liable, and the execution upon the judgment shall direct the collection to be made from property of each stockholder, respectively; and if any number of stockholders (defendants in the case) shall not have property enough to satisfy his or their portion of the execution, then the amount of deficiency shall be divided equally among all the remaining stockholders, and collections made accordingly, deducting from the amount a sum in proportion to the amount of stock owrfed by the plaintiff at the time the company dissolved.”</p> <p>The provisions of the constitution of Kansas applicable to this controversy are as follows:</p> <p>Article 12, § 1. “The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.”</p> <p>Article 12, § 2. “Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder; and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.”</p> <p>Section 10, art. 1, of the constitution of the United States provides that: “No state * * * shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.”</p> <p>The principal defenses relied upon are:</p> <p>First. That the act of January 11, 1899, in so far as it attempts to alter or impair rights existing and settled at the date of its passage, is in contravention of the constitution of the United States and, to that extent, void. Second. That the cause of action is barred by the statute of limitations. Third. That a receiver appointed by the courts of Kansas cannot sue in tins jurisdiction. *</p>

<p>Iii Error to Hie Circuit Court of the United States for the Eastern District of Texas.</p>

<p>1. Receivers — Compensation—Objections to Reports.</p> <p>An order of court was made, that a railroad receiver should be. paid a monthly salary as long as he continued to act, or until the further order of the court. On the sale of the railroad a sum was allowed the receiver, and accepted, in full compensation for his services to that time; but certain other property of the defendant was expressly retained for further administration by the court, and remained in charge of the receiver, who continued to act, making- quarterly reports showing the payment to himself of such monthly compensation. The most of such reports were approved by the master without objection. As to one or more, objections were filed, which were heard by the master and overruled; and his reports filed in court were allowed to stand confirmed, under the equity rules, for lack of exception thereto. Held, that parties interested, who had taken no steps for the removal of the receiver, or to bring the matter in any, maimer to the attention of the court, could not thereat ier attack the compensation retained by him in accordance with the order under which he was acting.</p> <p>2. Appeal — Review—Findings oe Master.</p> <p>The findings of a special master, approved or adopted by tlie court, are subject to review on appeal, where they embody only conclusions of law or deductions from undisputed facts.</p>

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

v Action for money loaned by Lizzie E. Williams against the American National Bank of Arkansas City, Kan., and John Watts, receiver of said bank. From a judgment in favor of plaintiff, defendants bring error.

The Repauno Chemical Company instituted this action against the Victor Hardware Company on August 2, 1897, 'and caused a writ of attachment to be issued and levied on a stock of merchandise, and certain accounts were also garnished as the property of the defendant, the Victor Hardware Company.

<p>In Error to the Circuit Court of the United States for the District of West Virginia.</p> <p>This is a writ of error to the judgment of the circuit court of the United States for the district of West Virginia, at Charleston. The action, is trespass on the case by the plaintiff in error to recover of the defendants in error damages growing out of the following occurrences; The plaintiff in error hired a horse from the defendant in error Ellis, a liveryman, at Ft Spring, W. Va., to ride horseback to Lewisburg, and in that vicinity, at an agreed price of S>1 per day, with an understanding that Davis might purchase the horse at the price of $100, if it suited him, and, in the event of purchase, he was not to be charged for the hire of the horse during the trip; and Davis obligated himself, at least impliedly, to take good care of the animal, and return it to the owner at the expiration of Ihe term ol' hiring. During the trip the horse’s back became sore to such an extent that Davis would not use it; and ho hired a conven anee, and drove a portion of the way, leading the disabled animal. The horse was returned on Saturday, the (>th of July, 1885, the trip having taken six days, and was left at Ft. Spring with a brother of Ellis, who was informed that the plaintiff in error had to catch a train hurriedly 1o Alderson, his headquarters, and that he would return that evening going to Ronceverte, and that if Ellis would be at. the depot the amount of the hire would be handed him. That eveningibefore Davis left Alderson, and as he was dressing to catch the train on his return trip to Ronceverte, Ellis, the defendant in error, appeared at Alderson, and called to see him in reference to the horse, and demanded that Davis iake the horse under the conditional agreement for sale hereinbefore referred to, because, as he claimed, the horse had been seriously injured, and was not returned to him in good condition, as contemplated in the contract of hire. He refused to accept anything on account of hire, and insisted on Davis paying for the animal, which Ihe latter refused to do, as the horse did not suit him, as he claimed; and he, moreover, insisted that he had taken the host care of the horse possible, and that the sore hack was caused by the excessively hot weather, and the fact that the horse had been fed on grass, was extra fat, and unaccustomed to saddle use. Being unable to come to an agreement, Ellis and Davis separated, and the latter left on the train for Ronceverte. That night, between 10 and 11 o’clock, Ellis and the defendant in error Chew appeared at Ronceverte with a civil warrant issued by the defendant in error Johnson, and executed the same on the plaintiff in error,, requiring him to appear before said Johnson at Ft. Spring, on the 11th day of‘July, 1895, to answer the complaint of the defendant In error Ellis for the sum of $100, for tlie recovery of money due by account; and said Cliew demanded that Davis acknowledge service of the summons, which upon his failure and refusal to do he was arrested, and for a while held in custody; and after protesting against Chew’s authority to make an arrest on a mere civil warrant, and refusing to submit to his authority, Chew presented another warrant, being a criminal warrant, charging Davis with cruelty to animals, sworn out. hy Ellis before ihe defendant in error Johnson, and plaintiff in error was taken in custody under this warrant, the defendant in error Ellis and one Yawter, called on by constable Chew, assisting in taking physical hold of Davis, according to Davis’ statement which was corroborated by others. Chew insisted that, by order of Johnson, he was to be arrested and brought before him at Ft. Spring, unless service of the civil process was acknowledged. After being-held in custody under these circumstances, and counseling with friends, and when about to be taken by Chew and Ellis in a buggy to Ft. Spring, the point was made that a justice at Ronceverte could take the bail; aud while Davis was being carried under arrest, about 1 o’clock Sunday morning, to the resi.donee of a justice of the peace at Ronceverte, he consented to acknowledge service of the civil warrant, to avoid further annoyance, and to secure release from arrest. This being done, he was discharged, and returned to his hotel. Two days later, while at Lewisburg, he was again arrested by Chew under the warrant charging cruelty to animals, and, after being held in custody some time, was taken before a justice of the peace, and allowed to give bail for his appearance before Justice Johnson at Ft. Spring. Upon a hearing before the justice, judgment was given for the plaintiff for $100 and costs in the civil case, and the criminal warrant was dismissed, the defendant agreeing to pay the costs, but under protest, as he insists. The declaration contains three counts, to the first two of which a demurrer was sustained, and upon trial of the.ease under the third count the court instructed the jury to return a verdict for the defendants, being of the opinion that under that count it was necessary, in order for the plaintiff to recover, that he should prove a conspiracy, which he had failed to do.</p>

The appeal in this ease was taken by John P. Smith, receiver of the City National Bank of Ft. Worih, Tex., from an order made by the district judge allowing, in the Eugene Roche bankruptcy proceeding pending before him, an attorney’s fee of $575 to the Mortgage & Debenture Company, Limited, of London, England.

<p>I. Bankruptcy — Acts of Bankruptcy by Corporation — General Assignment.</p> <p>Where the officers of a corporation, acting under authority of a resolution of the hoard of directors, and in pursuance of a vote taken at a meeting of the stockholders, though against the objection of a minority of the stockholders, make a general assignment of all its property to trustees for distribution among its creditors, • it is an act of bankruptcy on which a petition in involuntary bankruptcy against the corporation may be maintained.</p> <p>3. Same — Involuntary Petition — Reference.</p> <p>Where answers are filed to a petition in involuntary bankruptcy, it is proper for the court to refer the case to a referee in bankruptcy to take and return the evidence and report upon the questions presented; and it is no ground of objection to such a course that the only questions arising in the case are questions of law, the action of the referee being always subject to the control of the court.</p>

<p>1. Bankruptcy — Vacatin'» Adjudication — Who May Apply.</p> <p>A petition to set aside an adjudication of bankruptcy duly made by the district court in an involuntary proceeding, being in the nature of a bill to review and vacate a judgment, can be maintained only by the bankrupt, or by a creditor of the bankrupt owning a provable debt or claim against him.</p> <p>O. Same.</p> <p>Where a person holding the naked legal title to land, which was actually the property of the bankrupt corporation, made an agreement, as accommodation indorser or surety for another, to pledge or mortgage the property as security for the debt of his principal, this does not give the creditor a lien upon the property of the bankrupt, nor any claim or demand provable against it, in such sense as to entitle him to maintain a petition to set aside the adjudication of bankruptcy.</p> <p>3. Same — Want op Jurisdiction.</p> <p>AVhere a petition is filed to set aside an adjudication of bankruptcy, on the ground of want of jurisdiction in the court to make it, although the petitioner may he a stranger to the proceedings, and therefore not entitled to be heard as of* right, it is in the discretion of the court to allow him to be heard as amicus curise; want of jurisdiction being a question which the court should consider whenever and however raised.</p> <p>4. Same — Presumption op Jurisdiction.</p> <p>A district court of the United States, as a court of bankruptcy, is a court of record, and, although its jurisdiction is limited, it is not an inferior court in such a sense that all facts essential to its jurisdiction must affirmatively appear on the face of its record in order to sustain its judgments.</p> <p>5. Same — Oollvceral Attack.</p> <p>A decree of the district court, sitting in bankruptcy, reciting that “upon due consideration had” the respondent corporation “is adjudged a bankrupt, within the true intent and meaning of the acts of congress relating to bankruptcy,” cannot be impeached collaterally, as for a want of jurisdiction. merely because the petition omitted to allege that the corporation belonged to one of the classes made subject to be adjudicated bankrupt in involuntary proceedings.</p> <p>6. Same — Waiver op Process and Time to Pi,bad.</p> <p>Where a petition in involuntary bankruptcy was filed against a corporation, and on the same day the defendant waived process, entered its appearance, and admitted the allegations of the petition.to he true, and an adjudication of bankruptcy was made forthwith, such adjudication will not he set aside by the court of bankruptcy as void for want of jurisdiction, on the application of a stranger, when neither the bankrupt nor any of its creditors object to the decree.</p> <p>7. Same— Authority of Officer of Corporation.</p> <p>Where tlie answer filed hy a corporation to a petition in involuntary bankruptcy against it, in which it waives process, admits the allegations oí the petition, and declares its willingness to he adjudged bankrupt, is signed in the name of the corporation by its president, an objection that no proper corporate action is shown investing that officer with authority to act for the corporation in that behalf is waived by the acquiescence of the bankrupt and its creditors in the adjudication, and, as against strangers, is concluded by the adjudication.</p>

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

This is an appeal from a judgment of the district court of the United Stales for the district of Kentucky, sitting in bankruptcy, upon a petition for review of certain orders of the referee respecting the allowance of claims. Scanlan & Co., a Kentucky corporation engaged in the manufacture of glass at Louisville, was adjudicated a bankrupt upon the petition of its creditors, and thereupon the matter was referred to John B. Baskin, one of the referees in the said court.

<p>1. Bankruptcy — Specifications in Opposition to Discharge — Amendment.</p> <p>Although general order No. 32 (32 O. O. A. xxxi., 89 Fed. xiii.) in bankruptcy provides that specifications in opposition to a bankrupt’s application for discharge must be filed within 10 days after the day on which the creditors are required to show cause, it is in the power of the court of bankruptcy, in the exercise of a sound judicial discretion, to permit the filing of amended specifications after the expiration of that time.</p> <p>2. Same — Discharge—“Contemplation pF Bankruptcy.”</p> <p>'Where a debtor arranges to sell out his entire stock of merchandise, with the intent and for the purpose of paying certain of his creditors, out of the proceeds, in preference to the others, he contemplates bankruptcy, within the meaning of Bankr. Act 1S98, § lib, providing that a bankrupt shall forfeit his right to a discharge if he has, “in contemplation of bankruptcy,” failed to keep proper books of account.</p> <p>3. Same — Keeping Books.</p> <p>A bankrupt sold his stock of goods in bulk, for about half its cost, and under circumstances indicating haste and secrecy, and received part of the price in the form of two checks, which were at onco turned over to two of his creditors; the sale having been made to enable him to satisfy those creditors. No entry of the transaction appeared on his books, which were further so defective and irregularly kept that it was impossible to determine from them his true financial condition. A large deficit between his assets and liabilities remained wholly unaccounted for. Held, that his application for discharge should be denied, on the • ground that his failure to keep proper books of account was “with fraudulent intent to conceal his true financial condition and in contemplation , of bankruptcy,” within the meaning of Bankr. Act 1S98, § 14b.</p> <p>4. Same — Concealment of Property.</p> <p>Where a comparison of the bankrupt’s assets and liabilities at the time he engaged in business, some eight months before he became bankrupt, with the assets and liabilities scheduled in the bankruptcy proceedings, shows the disappearance of a large amount of property, which is not accounted for on his books, and of which he fails entirely to give any satisfactory explanation, it must be held that he has concealed from .his trustee property belonging to his estate in bankruptcy, and his application for discharge must be refused on that ground.</p>

<p>t. Chinese Exclusion Act — Right op Seamen to Land — Treaty op 1894— Habeas Corpus.</p> <p>The treaty oí 1894 with the empire oí China and acts of congress of 1888, 1894, excluding “Chinese laborers” from coming into the United States, are not applicable to a Chinese seaman, who ships as steward aboard a vessel bound for a port in tbe United States, and who lands with the intention and desire to reship as soon as possible.</p> <p>2. Same — Bond to Reship.</p> <p>A Chinese seaman who lands at a port of the United States for the purpose of reshipping as soon as shipment can be obtained, must give bond to the collector of the port to ship within 30 days, and to produce to the collector a certificate of the shipping commissioner to that effect.</p>

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

<p>1. Patents — Infringement.</p> <p>The question of infringement involves considerations of practical utility and of substantial identity, and therefore must be quantitative as well as qualitative; and infringement should not be found from the mere fact that the terms of a claim of complainant’s patent are applicable to the defendant’s device.</p> <p>2. Same — Construction of Claims.</p> <p>Where the utility of a patented machine resides in a complete cycle of operations, and the patentee subdivides the whole process into parts, making certain mechanical operations, which do not stand alone in practical use, stand alone in claims, these claims must be construed with caution, where infringement of part only is charged, as it is by no means certain that the claims would have been allowed with any substantial omissions.</p> <p>3. Same — Infringement---Maohine for Sewing Shoes.</p> <p>The French & Meyer patent, No. 412,704, for a shoe-sewing machine, .construed, and held not infringed as to claims 1, 2, and 5.</p> <p>4. Same.</p> <p>The Fowler & Warren patent, No. 564,986, for a shoe-sewing machine, construed, and held not infringed.</p>

<p>In Admiralty. Suit by seamen to collect wages.</p>

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

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana.</p> <p>The libelants claim $2,936.50 for freight, due for the carriage of two cargoes of superphosphate by their steamships Merrimac and Montezuma from Liverpool to New Orleans, the rate of freight being eight shillings per ton. The libel alleges that hills of lading for the two cargoes were issued and delivered to the shippers, copies of the same being annexed to and made part of the libel. The bill of lading marked “Exhibit A” is stated to be “in bulk,” 750 tons, 19 cwt., and 1 qr., and the bill is indorsed, “Weight and quantity unknown.” The freight is stated to he eight shillings per ton. In the bill of lading marked “Exhibit B,” that issued per steamship Merrimac, the cargo was declared to be “in bulk,” 750 tons, 6 cwt., and 2 qrs. This, however, was to be reduced by 145 tons “short shipped,” to he forwarded by the steamship Montezuma, the other steamer, and was included in bill of lading “A,” that issued per steamship Montezuma; and this bill of lading is indorsed “Weight unknown,” and the freight is stated at eight shillings per ton. In the freight hill, being Exhibit C2, attached to the libel, the quantity of phosphate upon which the payment , of freight was demanded is declared the same as that set out in the two bills of lading-. The respondent’s answer admitted the shipments by thétwo steamships named, and set up that, according to the bills of lading in the possession of respondent, the cargoes were 750 tons, 6 cwt., and 2 qrs. by the Merrimac, of which 145 tons were not shipped by that steamer, but were retained to be forwarded subsequently by the Montezuma; that, after deducting this amount from the originally intended cargo of the Merrimac, there was still, besides, short, lacking, and deficient 39 329/224:0 tons of the quantity received by libelants for transportation;, that the value of this short quantity of superphosphate was $483.46; that the cargo actually brought and delivered by the Montezuma., was 4i™3/22io tons less than that actually received for carriage; that of this shortage part was of the quality known as 12 per cent., and the remainder was 14 per cent., there being 40 708/2240 tons of the former, and 1 ton of the latter,- — the former being of the value of $408.39, and the latter $12.39; that the total value of the shortage in both cargoes was $940.20. The answer further says that, prior to the arrival of either vessel at, New Orleans, respondent paid the bills of exchange drawn for the price of said phosphate by its vendors, which bills of exchange were presented with the bills of lading issued by libelants, setting out, the receipt by them for carriage of the entire quantity of phosphate, — that is, 750 tons, 6 cwt., and 2 qrs. by the Merrimac, and 650 tons, 19 cwt., and 1 qr. by the Montezuma, — while, as a matter of 'fact, there was delivered to respondent only this quantity, less go r»3V224o t0Ils> which was of the value of $904.20, and that the amount due libelants was only the freight on the- phosphate they actually delivered, less the value of the amount of phosphate they received for delivery, but failed to deliver; that this amounted to $1,977.46, which respondent admitted to be due and deposited in the registry of the court; that it was entitled to deduct from the $2,936.50, freight upon the whole cargo, as shown by the bills of lading, the sum of $959.04, the value of the phosphate which was not delivered; and the respondent, by way of cross libel, claimed the right to deduct this difference, as proposed by the answer. By a supplemental answer, respondent claimed that libelants’ claim should be further reduced by the sum of $52.53, the freight on the portion of the cargo, which it claimed was not delivered, and reduced its tender to $1,874.93, which amount was -paid into the registry, and withdrawn by the libelants without prejudice to either party.</p> <p>There is little, conflict in the evidence, and it establishes that the shippers of the superphosphate delivered the goods to the ships on their own weights and measurements, and that the same was received and stowed without any inspection or weighing on the part of the ships; that the shippers made out and presented for signature bills of lading, reciting the amount in bulk, with alleged weights; that as presented the bills of lading were indorsed in the one case, “Weight and quantity unknown,” and in the other, “Weight, unknown,” and as thus indorsed were signed and delivered by the agents of the ships; the consignee paid drafts drawn by the shippers for the full amount of superphosphate as formally recited in the bills of lading, the bills indorsed “Weight unknown” accompanying- the drafts; that all the goods delivered by the shippers and received by the ships were safely carried and fully delivered, without appreciable loss; that in the delivery to the consignee in the port of New Orleans the goods were not all weighed; but the weight of the whole was averaged under the joint inspection of an agent of the consignee and one of the officers of the ship; that the method followed in ascertaining the weight was that 10 out of every 100 wheelbarrow loads were weighed, and on these weights-the whole, when delivered, was estimated; and that, as ascertained by the above method, there was an actual shortage of some 80 tons in the delivery of both cargoes.</p> <p>The district court rendered a decree in favor of the libelants for the full amount claimed, in the following terms: “It is ordered, adjudged, and decreed that the libelants, Elder, Dempster & Co., do have and recover of and from the respondent, the Planters’ Fertilizer Manufacturing Company, the sum of two thousand nine hundred and thirty¡-six BO/ioo dollars ($2,936.50), with five per cent, interest on the sum of one thousand four hundred and sixty-seven cs/100 dollars {$1,467.63} from December 6, 1894, until paid, and like interest on the sum of one thousand four hundred and sixty-eight 87/ioo dollars ($1,-468.87) from December 22, 1894, until paid, and all costs of suit, subject to a credit of one thousand eight hundred and seventy-four ss/ioo dollars (§1,874.93) paid April 14, 1896.”</p>

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

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

<p>Appeal from the Circuit C-art of the United States for the Northern District of New York. This is an appeal from an order granting a preliminary injunction.</p>

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

<p>Appeal from the District 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 Nebraska.</p>

<p>At Law. On motion for new trial.</p>

<p>Motion for Preliminary Injunction.</p>