Volume 102 — Federal Reporter

<p>On Motion to Dismiss for Want of Jurisdiction.</p> <p>Plaintiff sued defendant railroad company in thej district court of Page county, Iowa, to recover certain alleged overcharges amounting to $2,390. Defendant removed the case to the federal court, on the ground of diverse citizenship, the amount in controversy being over $2,000. When the' transcript from the state court was filed, defendant moved to require plaintiff to file a bond for costs, the motion was sustained, and plaintiff gave a bond. Defendant then moved to strike the petition for want of jurisdiction for the reason that the state court, from which the case came, had no jurisdiction of the subject-matter; it being a suit in the state court under the provisions of the interstate commerce act.</p>

<p>1. Courts — Jurisdiction-—Contractor’s Bond — Action in Name of United • States.</p> <p>Under the act of congress of August 13, 1894 (28 Stat. 278), requiring contractors for the construction of public buildings to give bond for the prompt payment of those furnishing labor or materials, and authorizing any person who has supplied labor or material for the prosecution of such work to bring an action on said bond in the name of the United States, such action may be brought in the name of the United States, for the use of the laborer or material man, in any proper state court.</p> <p>2. Same — Amount in Controversy.</p> <p>Under the judiciary act of March 3, 1887, § 1 (24 Stat. 552, c. 373), as corrected by act ,of August 13, 1888 (25 Stat. 433, c. 866), giving the circuit courts of the United States jurisdiction “of any controversy in which the United States are petitioners or plaintiffs,” a circuit court has not jurisdiction of an action brought in the name of the United States, under authority-of act of congress of August 13, 1894 (28 Stat. 27S), to recover upon a contractor’s bond for labor or material furnished in the construction of a public building, where the amount in controversy is less than $2,000.</p>

<p>Jurisdiction of Federal Courts — Patent and Copyright Cases — Place of Bringing Suit.</p> <p>The provisions of the judiciary acts of 1S87 and 1888, that no civil suit shall be brought in the federal courts against any person in any other district than that of which he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states suit shall be brought only in the district of the residence of either the plaintiff or the defendant, are not applicable to suits within the special jurisdiction given the circuit courts of the United States in patent and copyright cases, and such suits may be brought In any district where . the defendant can be served with process.</p>

<p>1. Courts — Conflict of Jurisdiction — Injunction—Interference with Proceedings in State Court — Constitutional Law.</p> <p>An action having been- brought lor the recovery of a back assessment, and the taxpayer having appeared therein, he commenced an action in a federal court to enjoin the treasurer from proceeding in said action in the state court, on the ground that the statutes under which he acted were in conflict with the fourteenth amendment to the United States constitution, providing that “no state shall deprive any person of life, liberty, or property without due process of law.” Helé, that the bill must be dismissed, since the exercise of such power is expressly forbidden by Rev. St. U. S. § 729, providing that the writ of injunction shall not he granted by any court of the United States, to stay proceedings in any court of a state.</p> <p>2. Same — Civil Rights Act.</p> <p>Rev. St. U. S. § 720, prohibiting the issue of injunctions by the federal courts to stay proceedings in a state court, is not so far modified or repealed by section 1979, providing that every person who, under color of any statute of any state, causes any citizen of the United States to be subjected to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law or suit in equity for redress, as to permit a federal court to entertain a bill to restrain a county treasurer from proceeding in an action in a state court for the recovery of a judgment for a back assessment upon the personal property of complainant, although in the proceeding in which such prima facie case was made the requirement of due process of law was not observed, contrary to the fourteenth amendment to the United States constitution. •</p> <p>8. Same — Questions Arising under United States Constitution — Remedy.</p> <p>Where the defense to an action in a state court involves the construction and application of the fourteenth amendment to the United States constitution, but defendant cannot remove the suit to the circuit court of the United States, because the federal question does not appear upon the face of plaintiff’s statement of his claim, and the right set up under the constitution is denied to him by the highest court of the state to which the controversy can be carried, defendant’s remedy is to sue out a writ of error from the suprenie court of the United States, and thus obtain a review of the federal question involved.</p>

Action at law against defendant, as collector of internal revenue, to recover a rebate paid under protest on a sale of revenue stamps. On demurrer to petition. Sustained.

In Equity. This was a petition by Victor C. Vette filed against the receiver of the defendant railway company to recover for a personal injury. On demurrer to answer.

Action by William T. Phillips, administrator of Willis Arlena Pugh, deceased, against the Union Central Life Insurance Company. From a decree.for plaintiff, defendant'appeals.

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

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

<p>1. Public Lands — Construction of Grant — Identification of Lands Granted.</p> <p>A grant by congress to a state, to aid in the construction of a wagon road, of “alternate sections of the public lands, designated by odd numbers, three sections per mile, to be selected within six miles of said road,” being of only one-half the odd-numbered sections within the designated limits, does not attach to any particular lands until the selections have been made, and approved by the land department, and until that time the lands granted are not taxable by the state.</p> <p>2. Same — Contingent Interest of Grantee before Selection — Bight to Sale for Taxes.</p> <p>Where a grant of lands has been made by congress, to be selected within certain limits from a larger quantity, until such selection has been made the grantee has such a contingent interest in all the lands subject to selection that it may maintain a suit in equity to enjoin an unauthorized sale thereof for taxes.</p>

On tlie 1st of March. 1808, the defendant in error (hereafter called “plaintiff”) commenced an action in the United Slates circuit court for the Western división of the Eastern district of Arkansas against the plaintiffs in error (hereafter called “defendants”) for an undivided one-half interest In the lands in controversy, situate in Desha county, Ark., alleging that said Thomas J. Martin died seised, of the undivided one-3ialf interest in said land as tenant in common and…

<p>On Motion for New Trial.</p>

At Law. In pursuance of a stipulation in writing waiving a jury, this cause was tried by the court without the intervention of a jury on the 28th and 29th days of .Tune, 1899; and now, August 12, 1899, upon due consideration, the court finds the facts to be as follows: ⅝ (1) By an instrument dated April 20, 1887, the defendant was appointed and constituted the agent of the plaintiff company, with authority to receive proposals for insurance against loss and damage by fire in…

<p>1, Principal and Agent — Liability of Principal for Torts of Agent.</p> <p>A principal, authorized to countersign and issue policies of an insurance company, cannot he held responsible for the. act of his agent in forging his signature to a policy, and delivering the same without his consent, ratification, or knowledge, unless upon some ground of estoppel.</p> <p>2. Same — Estoppel of Principal to Repudiate Act of Agent — Apparent Scope of Agency.</p> <p>Defendant, who was an insurance agent, and as such intrusted by plaintiff, an insurance company, with policies which he was authorized to countersign and issue, employed a clerk in his office who was authorized by him “to solicit insurance, to collect premiums, and to deliver policies.” Such clerk forged defendant’s signature to a policy of plaintiff, delivered the same, and collected the premiums thereon, but did not report the fact to defendant, who had no knowledge of it until after the insured property had been destroyed by fire, and the issuance of the policy- was not reported to plaintiff. So far as appeared, defendant had no prior cause to distrust the integrity of the clerk. Held, that defendant had not clothed the clerk with any apparent authority by which he could be bound by the act of the clerk in signing the policy, or in delivering a forged policy, and that he had been guilty of no act of negligence which estopped him to repudiate the acts of the clerk as his agent, and that such acts were not binding, therefore, either upon him or upon the company.</p>

At Law. Action on a check drawn by defendant. On motion of defendant for a new trial and for judgment non obstante veredicto.

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

<p>1. Railroads — Negligence—Personal In.tury — Exemplary Damages.</p> <p>Under Code Ala. 3898, § 27, derived from an act entitled “An act to prevent homicides,” and providing that, in an action by a personal representative for negligently causing the death of his intestate, plaintiff may recover “such damages as the .Jury may assess,” the damages recoverable by plaintiff in an action against a railroad company for causing- the death of a passenger on one of its trains, by the falling of a bridge, are punitive and exemplary.</p> <p>2. Courts — Construction op Statutes — Rule op State Court Binding.</p> <p>Code Ala. 1896, •§ 27, providing that, in actions for negligently causing the death of another, plaintiff may recover “such damages as the jury may assess,” having been construed by the supreme court of Alabama as awarding exemplary damages, and been declared by that court to be constitutional, its decisions are binding upon the federal courts.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>Action on Foreign Judgment — Pleading—Sufficiency op Complaint — Affidavit of Defense.</p> <p>A declaration in assumpsit on a foreign judgment, which sets out soma of the orders only of the foreign court, instead of a copy of the full record, is not sufficient to entitle plaintiff to judgment in default of an affidavit of defense.</p>

<p>1. Nonsuit — Motion to Set Aside — Mistake of Plaintiff.</p> <p>Where, in an action to enforce a liability under a foreign statute, plaintiff rests bis case upon a particular statute, to wbicb tbe attention of tbe court is called, and tbe cause is tried upon tbe theory of defendant’s liability thereunder, and results in a nonsuit, plaintiff is not entitled to have the nonsuit set aside for tbe reason that there is another statute of the foreign state, which, if it had been brought to the attention of the court in due season, would have avoided such judgment.</p> <p>2. Banks — Stockholder’s Individual Liability — Receivers—Pleading—Variance.</p> <p>Where, in an action by a receiver to enforce a stockholder's liability under a foreign statute, the declaration alleges that under such statute shareholders are individually and severally liable “to the creditors” of the corporation, the receiver cannot recover, though the statute makes such liability an asset of the corporation, because of the material variance between the pleading and proof. ,</p> <p>3. Same — Right of Action — Assessment Ordered by Court of Foreign Jurisdiction.</p> <p>The individual liability of the shareholders of a bank to the creditors of the corporation, being conditioned by the statute of Iowa upon the bank having become insolvent, and upon the insufficiency of its assets to pay its debts, and being limited to the stockholder’s share of the deficiency only, the receiver of a bank, appointed under the general powers of a court in Iowa, cannot maintain an action in a foreign jurisdiction against a shareholder, for the amount of an assessment upon stocl^ directed to he made by the court in Iowa, in a proceeding to which the shareholder was not a party, and to which he did not appear, and to which he could not have been required to appear, because of his being beyond the jurisdiction of the court.</p> <p>4. Receivers — Powers—Cannot Maintain Action in Foreign Jurisdiction.</p> <p>The receiver of a corporation appointed by a court of competent jurisdiction in one of the states cannot maintain an action in another state for the recovery of a demand due the estate of which he is receiver.</p> <p>5. Same — Comity.</p> <p>.Even if tlie rule which permits the receiver of a corporation to sue in a foreign jurisdiction, as an act of comity, lie recognized by the federal courts, it will not be extended to a demand for a stockholder’s liability, under an assessment ordered by the court in which the receiver was appointed, in proceedings to which iho stockholder was not a party.</p> <p>6. Fokkign Judgment — Evidence—Nonsuit.</p> <p>Where, in an action against a shareholder for the amount of an assessment upon the stock of a corporation made pursuant to an order of court in the matter of the receivership of such corporation in a foreign jurisdiction, a complete copy of the proceedings in the case wherein such order was made is not produced upon the trial, plaintiff will be nonsuited.</p>

<p>In Error to the Circuit Court of the United States for the District of North Dakota.</p> <p>In February, 1895, Olea O. Haug, the plaintiff in error, brought an action in the district court of Traill county, N. D., against the Great Northern Railway Company, the 'defendant in error, to recover damages for the death of her husband, Jacob C. Haug, which it was alleged was occasioned by the wrongful acts and negligence of the defendant. This action was removed by the defendant into the circuit court of the United States for the district of North Dakota on the ground of diverse citizenship of the parties. In that court the defendant filed a general demurrer to the complaint, which was sustained. The plaintiff thereupon filed an amended complaint, and an amendment to the amended complaint, whereupon the defendant filed the following motion:</p> <p>“Motion to Dismiss and for Judgment.</p> <p>“Now comes the defendant, the Great Northern Railway Company, by its attorney, and moves the court above entitled to dismiss the plaintiff’s amended complaint, and for judgment in favor of the defendant and against the plaintiff in accordance with the previous order of this court sustaining defendant’s demurrer to plaintiff’s original complaint. This motion is made upon said order of the court, and upon the plaintiff’s amended complaint filed by leave of the court, and is predicated upon the following grounds, to wit: (1) That said amended' complaint contains no allegation of jurisdictional facts, and does not show affirmatively that this court has jurisdiction to try and determine the same; (2) that said amended complaint does not state facts sufficient to constitute a cause of action. Wherefore defendant prays judgment accordingly.”</p> <p>This motion coming on for hearing on the 91h (lay of .Tune, 1806, the court entered the following judgment tliweon:</p> <p>“This cause coming on to he heard on motion of the plaintiff for leave to amend his complaint herein, and no objection being made thereto, it is ordered that said motion bo, and the same is hereby, granted; and' the motion of the defendant ¡hat this cause he dismissed for the reason that the amended complaint, as now amended, fails to state facts sufficient to constitute a cause of action, coming on at this time to be heard (W. E. Dodge, Esq., appearing in sui>port of said motion, and B. K. Ingwaldson, Esq., opposed thereto), after hearing the arguments of the respective counsel, and being advised in the premises, it is ordered that said motion to dismiss be, and the same hereby is, granted. Whereupon it is ordered and adjudged 1liat this action he, and same hereby is, dismissed, and that the defendant have and recover of the plaintiff its costs herein, taxed and allowed at the sum of ⅞>-, and that 1he defendant have execution therefor. Wm. Loehren, .fudge.” 1</p> <p>No further proceedings were ever had in that case, and the judgment therein rendered remains in full force and effect.</p> <p>In January, 18í>7, Olea O. Haug, the plaintiff in error, brought the present action in the district court of Traill comity, N. D., against the Great Northern Railway Company, for identically the same cause of action counted on in the previous action. The defendant demurred to the complaint. The demurrer was sustained. The plaintiff appealed from (lie judgment sustaining the demurrer to the supreme court of, the. state, which reversed the judgment on the demurrer, and directed the trial court to overrule the same. Haug v. Railway Go., 77 Ñ. W. 97, 42 E. R. A. (¡61. Upon the return of the record into the trial court, the plaintiff filed an amended complaint, the same in substance and. legal effect as the previous complaint. This cause was thereupon removed into the circuit court, of the United States for (he district of North Dakota upon the petition of the defendant. The defendant filed its answer in (hat, court to the complaint and amended complaint, setting' up in bar of (lie action the judgment of the circuit court of the United Slates on the demurrer and motion to dismiss in the first suit brought by the plaintiff, and which is above set out. The plaintiff filed a reply admitting the institution and prosecution of the action pleaded In bar in the answer, and that it was disposed of as shown by the record quoted, but averred that such record did not operate as a bar to the present suit, for two reasons: Eirst, that the United States circuit court did not have jurisdiction of the case; and, second, that its judgment was “only an order, and not a final judgment, under the laws of the state of North Dakota.” The defendant thereupon moved for judgment upon the pleadings, which motion was sustained, and final judgment rendered for the defendant, whereupon (lie plaintiff sued out 1his writ of error.</p>

By stipulation in writing the parties waived a jury, and tried this action before the court on the following agreed statement of facts: “It is agreed between the parties hereto that the facts herein are as follows: “(1) Upon March 3, 1887, Warren Watson was appointed clerk of the United States circuit court for the Western division of the Western district of Missouri, and acted as such from that date until his death, which occurred on the 21th day of March, .1.892.

The First Methodist Episcopal Church of Leavenworth, Kan., .is a religious corporation incorporated by special act of the legislature of the territory of Kansas, February 21, I860, under the name of the First Methodist Episcopal Church, Leavenworth City,.

The Granite State Provident Association and O. B. Crum, • Uio plaintiff in error, entered into the following contract: •‘This agreement, made in duplicate this 17th day of February, 1892, between the Granite State Provident, Association of Manchester, New Hampshire, and O. B. Crum, of Denver, Colorado, witnosseth: First.

The Missouri, Kansas & Texas Railway Company owns and operates a line of railroad extending from the state of Missouri, through Kansas and the Indian Territory, into the state of Texas. The railway company had a train dispatcher at McAlester, in the Indian Territory, for the purpose of ordering and directing the movement of its trains on the division of its road between McAlester and Muskogee, in the Indian Territory.

<p>1. Appeal — Necessary Parties — Parties Having No Substantial Interest.</p> <p>A railroad company which is hopelessly insolvent, and practically defunct, and all of whose property, rights, and franchises have been transferred to a purchaser at foreclosure sale, is not a necessary party to an appeal by such purchaser from a decree distributing the proceeds of the sale.</p> <p>2. Same — Bepresentation by Beceiver.</p> <p>Holders of receiver’s certificates, among whom the proceeds of a railroad sold under foreclosure have been distributed, are sufficiently represented by the receiver on an appeal by another creditor from the decree making such distribution, and compliance by the appellant with an order requiring citation on the appeal to. be served on all the distribu-tees who hád counsel of record, or to whom the receiver was indebted in any considerable sum, is sufficient to sustain the appeal</p> <p>S. Samis — -Pebsons not Parties to Record.</p> <p>Persons who may be interested in a decree, but who are not parties to the suit, are not necessary parties to an appeal from such decree.</p>

<p>l Bankruptcy — Opposition to Discharge — Keeping Books of Account.</p> <p>To sustain specifications in opposition to a bankrupt’s application for discharge, on the ground of his failure to keep proper books of account, it is not sufficient to show that the true state of his affairs could not be ascertained from the hooks as kept, but the evidence must fairly prove that his mode of keeping them was with a fraudulent intent to conceal his financial condition, and in contemplation of bankruptcy.</p> <p>2. Same — Mutilation of Books.</p> <p>The fact that a bankrupt’s ledger is presented in a mutilated condition, certain of its pages having been torn out, is not sufficient ground for refusing his discharge, when the evidence does not prove that ihe mutilation was done hy the bankrupt himself, or with Ms knowledge, and where there is testimony to show that the entries on the missing pages are to he found repeated in other parts of the ledgei.</p>

<p>1. Bankruptcy — Preferences—Payment of Money.</p> <p>Payment of a debt in money is a transfer of property, within the meaning of Bankr. Act 1898, § 60a, providing that a debtor shall be deemed to have given a preference if, being insolvent, he has made a transfer of any of his property, and the effect of the enforcement of such transfer will be to enable one of his creditors to obtain *a greater percentage of his debt than other creditors of the same class,</p> <p>i. Same — Proof and Allowance of Claims — Preferred Creditors.</p> <p>Under section 57g, providing that the claims of creditors of a bankrupt who have received preferences shall not be allowed unless they surrender their preferences, a creditor who has actually received a preference, by a partial payment of his debt, within four months before the bankruptcy of the debtor, and at a time when the latter was insolvent, cannot have his claim allowed against the estate of the bankrupt without surrendering to the trustee the money so received, notwithstanding the fact that, when he received the payment, he had no knowledge or cause to believe that the debtor was insolvent or that a preference was intended.</p>

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

<p>BANKRUPTCY — OPPOSITION' TO DISCHARGE — CONCBAIiMKNT OF ASSETS.</p> <p>Where a comparison of the bankrupt's assets and liabilities, as scheduled in the bankruptcy proceedings, with an itemized statement of his affairs made a few months before, and admitted to be correct, showed a large shrinkage or disappearance of assets, of which lie failed entirely to give any satisfactory explanation, and Ms .books of account, shown to have been in his possession at the time of his failure, were not produced, except a ledger, out of which many leaves had been tom, the evidence tending to show that the mutilation liad been done by the bankrupt himself, he!(7. that the evidence justilied a finding that he had concealed property from his trustee, and intentionally suppressed his books, and that Ms application for discharge should he denied on that ground.</p> <p>(Syllabus by the Court.)</p>

<p>In Bankruptcy.</p>

<p>INTERNAL REVENUE — TAX ON WHOLESALE LIQUOR DEALERS — PLACE OR MAKING Avlbs.</p> <p>A wholesale and retail liquor dealer who pays special tax as such at his place of business cannot be subjected to the payment of a second tax in another district because lie there maintains an office in his own name, in charge of an agent who is authorized to, and does, take orders for liquors, where such orders are forwarded to his principal for acceptance, and, if accepted, the liquors are shipped thereon by the principal direct to the purchaser; the agent having no authority to bind his principal by sales, and no liquors in his possession. In such ease the sales are made at the place of business of the principal.</p>

<p>Wae Revenue Act — Stamp Taxes — Notaky’s Bond — Exemption.</p> <p>War Revenue Act June 13, 1898, declares that bonds for indemnifying any person, etc., as surety for the payment of money or the execution of official duties, and all other bonds, except such as are required in legal proceedings, shall pay a tax of 50 cents; and section 17 provides that it is the intent of the act to exempt from the stamp taxes state, county, town, and other municipal corporations in the exercise only of functions strictly belonging to them in their ordinary governmental, taxing, or municipal capacity. Meld, that a notary public appointed by a state is a state officer employed in the exercise of functions belonging to it in its governmental capacity, and hence the bond required of such notary as part of his qualification for office is not subject to the revenue tax.</p>

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

<p>On reargument.</p>

<p>On Petition for a Writ of Habeas Corpus.</p>

This is a bill in equity to restrain unlawful competition in trade, and the appeal is from a decree denying to the complainant a preliminary… Held: First. That “bromo,” in chemical compounds, was well known as indicating the presence of bromine as its principal element, and that “its use by complainant was obviously intended to imply that bromine was a leading constituent in the compound which it made and sold, and the prefix ‘bromo’ was evidently used for the purpose of…

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

<p>Trade-Names — Unfair Competition — Preliminary Injunction.</p> <p>Where the rights of parties to the use of certain trade-names and labels have been adjudicated, and the defendants thereafter submitted to counsel for complainants a proposed new form of label, which was by them approved as unobjectionable, another court will not grant a preliminary injunction against the use of such label by defendants on the application of the complainant.1</p>

<p>In Equity. Suit to enjoin infringement of trade-marks.</p>

These appeals are from a final decree, in the suit of the Miehle Printing-Press & Manufacturing Company against the Campbell Printing-Press & Manufacturing Company for infringement of the first claim of patent No. 317,663, and the first, second, and fourth claims of patent No. 322,309, issued on May 12 and July 14, 1885, to Robert Miehle. The first patent was declared valid, and further infringement enjoined.

<p>Patents — Anticipation and TnfRinoemknt — Lifting Jacks.</p> <p>The Barrett patents, Nos. 455,993-, 455,994, and 455.995, for improvements in lifting jacks, considered with reference to anticipation of the yielding tripping plate, upon which such patents rest, by the Card device, shown in patents Nos. 110,296 and 123,010, and held not anticipated, and valid and infringed.</p>

In Admiralty. Libel for personal injuries. The libelant was one of a stevedore’s gang employed by the shipper to load the bark Nikolai II. The stevedores went aboard in the afternoon of the day before the loading was to begin. The vessel lay some distance off shore, and, as was customary in such case, the stevedores remained aboard both night and day during the period of loading.

This is an appeal from a decree in admiralty in favor of the libelant for ihe sum of §1,000, with interest and costs. Held: on final heaving, that, after the ship had entered upon the performance of .he charter party by loading cargo, the charterer had a lien in rem for the breach of any stipulations of this contract, and that in the emergency the master acted rightfully for the common interest in the employment of Messrs.

In Admiralty. This was a consolidated suit arising out of the abandonment at sea, after a storm, of the Norwegian bark Eliza Lines, and the subsequent bringing of such vessel, with her cargo, into the port of Boston, as a derelict, by the original libelants.

<p>1. Partnership — Dissolution— Settlement — Equity—Accord and SATISFACTION — OPENING SETTLEMENT.</p> <p>On tlao dissolution oí a partnership between a young man and one mature in years, a settlement between tliem would not be inquired into •in equity at the instance oí the former, where it appeared that he was possessed of more than average business ability, and that the elder member, though a shrewd business man, resorted to no deception, and there was no mistake of fact, and a positive instrument of accord and satisfaction was executed by them.</p> <p>3. Same — D lsagkkements — Acquiescence—Waiveii.</p> <p>In a dispute between partners H. claimed that he was entitled to the interest on capital contributed by him, and to the proceeds of a patent used by The firm, which was his individual property. S. claimed that the same should be equally divided. H. thereupon said to S., “If you think so, I will let it go.” Until dissolution such interest and profits were entered on the firm books in equal credits to both, in which II. acquiesced. Meld, that the conduct of H. amounted to a waiver of liis claim, and to a new agreement, and, after full settlement between them, equity would not interfere in favor of IT., though by the terms of the original partnership agreement II. might have been entitled to such interest and profits.</p>

<p>1. Appeal — Review—Order Denying Temporary Injunction.</p> <p>Tlie granting of a temporary injunction rests in the sound judicial discretion of the chancellor, and his action in refusing such interlocutory relief will not he reversed on appeal unless there is a strong probability that the complainant on final hearing will show himself entitled to the relief prayed for, or unless it; appears that the complainant will sustain great loss and damage, or be put to unnecessary trouble and expense, if the existing status is not maintained.</p> <p>2. Temporary Injunction — Grounds - Restraining Action op State Boaiui.</p> <p>Where a state board of transportation had made an order requiring a railroad company to appear before it and show cause why a reduction in certain freight rates should not be made, and a temporary injunction was sought by a supplemental bill to restrain the board from entering upon such hearing, which relief was based on the ground that tiie board had no power to order a reduction in rates, it was held that an order denying a temporary injunction was properly entered — First, because the relief sought by the supplemental bill was based upon grounds which were so far doubtful that it would have been unwise to grant a temporary injunction; and, second, because it was doubtful whether the relief sought by the supplemental bill could be obtained otherwise than by an original bill.</p>

The bill in this case was filed by the appellee, a corporation organized under the laws of Pennsylvania, as trustee for the holders of 80 first mortgage bonds, of $500 each, issued by the Dawson… Held: and resulted in a YQto favorable to the proposition; and in December following another ordinance was passed, declaring the result of the election.

<p>Appeal from the Circuit Court of the United States for the District of South Carolina.</p> <p>This case was begun April 27, 1897, in the United States circuit court for the district of South Carolina, by a bill in equity filed by D. F. Jack, a citizen of Georgia, against James T. Williams and H. G. Beattie, citizens of South Carolina. The bill asked for the sale and partition of certain property formerly owned by the Carolina, Knoxville & Western Railway Company. From the bill and other pleadings it appears that the Carolina, Knoxville & Western Railway Company was chartered by South Carolina in 1887 to construct and operate a railroad of considerable length from Hamburg, in South Carolina, to Knoxville, Tenn. The construction was begun in 1888, and some work was done at various points along the line, but the company became bankrupt and unable to continue the construction, so that only a section of 12 miles was completed, extending northward from Greenville in South Carolina. It appears that a mortgage to secure a very large amount of bonds had been executed by the company in 1888, and, default having-been made, a bill to foreclose had been filed in the same United States circuit court for the district of South Carolina, and the said defendant H. C. Beattie had been appointed receiver; that receiver’s certificates were thereupon issued to complete the road three miles further, to Marietta, S. C.; that the receiver then operated the 15 miles of road until a foreclosure shle, on July 23, 1896. It appeared that the operation by the receiver resulted in the road barely paying its running expenses, without any compensation to the receiver, and without paying anything upon the receiver’s certificates or the bonded debt. After many efforts under the foreclosure decree to sell the mortgaged property, it was finally sold to the defendant James T. Williams for $15,000, who complied with the terms of sale, and obtained possession and title to the property on August 3, 1896. The bill alleges that the purchase, although nominally made by James T. Williams, was really made for the compláinant, Jack, together with said Williams and said Beattie, and the purchase money was supplied by all three, under an agreement that the property should be conveyed to Williams for the benefit of all three. The bill alleges that it had been found impossible to operate the road except at a loss; that the condition of the roadbed and bridges was such that it would cost $10,000 to make it safe to yse it; that the citizens along the line of the railroad had been appealed to in-vain for assistance to operate it; and that when it was operated the citizens along the line did not use it. The bill further recites that an act of the legisla ture of South Carolina had then recently been passed, approved March 5, 1897, requiring all owners of railroads to reorganize under section 1(510 of the Revised Statutes of South Carolina within. 00 days, under a penalty of $50 a day and a forfeiture of tlieir franchises and privileges for neglecting to do so; that it would be impossible for the complainant and his co-owners to comply with said act, as it would be attempting a thing almost impossible and certain of failure. The bill then prayed an order appointing a receiver, and a decree for sale and partition. Tire defendants, by answer, admitted the allegations of the bill, and submitted to a decree.</p> <p>The court below thereupon appointed a receiver, who had an inspection of rlie property made by a skilled railroad supervisor, who reported that Utero were 22 trestles, and that all but 2 of thorn needed extensive repairs; that there were over 12,000 new cross-ties required: and that in over 20 places the roadbed for considerable distances was covered with dirt 2 feet deep; and that it would cost, over $10,000 to put the road in proper condition (o run for one year. Thereupon the; court (Judge Simonton). on May 18, 1897, filed its opinion and decree, adjudging that the complainant was entitled to the relief prayed in the bill, and directed the receiver to remove all the iron rails, and to sell them, together with all the rolling stock, and, after paying the costs, and such compensation as might be agreed to by the parties, and, after setting- aside the $2,000 for a purpose hereinafter explained, directed the receiver to pay the remainder of the proceeds to the parties according to their respective interests as they should appear by a written agreement to be signed by them and filed with the clerk. The court (Judge Simonton) held that as the state of South Carolina might charter a new corporation, and confer upon it a franchise similar to that which the Carolina, Knoxville & Western Railway Company had possessed to construct and operate a railroad over the same route, and might authorize the new corporation to take such of the railroad property of the old corporation as might be necessary for its use, upon paying proper compensation therefor, some provision should be made in its decree for that contingency. And tiie court held that, as the now1 corporation would be required to pay the present owners the value of the rails and oilier property taken, the only damage it could suffer by iheir removal would be the cost of replacing them, and that $2,000 would be sufficient to cover that cost, and directed the receiver to reserve and deposit that sum in some savings institution of: the state, in order that it might be paid to such new corporation if chartered within a period ol‘ two years. The receiver, nearly two years afterwards, on March 7, 1899. filed a report in which he reported to the court that he had not. yet complied with the decree of May 18, 1897, directing him to remove the iron from the roadbed, but had delayed at the urgent request of the parties in interest., who.had been making every effort to avoid the necessity of dismantling the road, but that all their’ efforts had failed. lie thereupon asked authority to contract with a proper person, upon the terms stated in his pel ilion, ,to remove all the iron from the roadbed and all other movable property, and deliver it at the Southern Railroad freight depot in the city of Greenville. The court entered an order giving the authority.</p> <p>On March 27, 1899, two petitions by new parties were filed in the cause. The first was by the state of South Carolina, ox relatione T. f!. Cunningham and others. It set out that the relators were citizens of South Carolina, residing in the county through which the railroad passed, who, having established themselves in business while the railroad, was in operation, depended upon it for transportation, and would be seriously injured if the railroad was discontinued and abandoned, and the people of that section of the country would suffer hardship and incalculable loss. They stated that neither the state of South Carolina nor the relators knew anything of the proceedings in this cause until on March 17, 1890, when the receiver by his agents began to take up the rails; that the relators were advised that the said railroad, so far as completed, was a public highway, authorized by the legislature of South Carolina: and that neither the parties fo the cause nor the receiver had power to take up the rails and dismantle the railroad without the authority and consent of the legislature of South Carolina. The petitioners asked that they he allowed to intervene, and have their rights and the rights of the state adjudicated; that the parties to the cause he required to answer their petition; that the parties to the canse and the receiver he enjoined from removing- the rails or dismantling the railroad; and that the parties to the cause be required to replace the rails already removed. Thereupon the court set the matter of the petition for hearing, and ordered that in the meantime the parties to the cause and the receiver he restrained from further proceeding- to remove the rails, provided the relators should give a bond in the penalty of $5,000 to answer any damages by reason of the restraining order. At this time the rails on about one mile of the road had been taken up. The bond required to make the restraining order effective was not given, and the receiver continued to take up the rails, and on April 21, 1899, reported to the court that he had sold and delivered all the property which he had been authorized to sell by the decree of May 18, 189?, to the Charleston' & Western Carolina Kailway Company, for $28,000, the purchaser to pay 'the cost of removing the rails. That he had deposited as directed the $2,000 required by the decree to be reserved, and had paid the expenses of the receivership, and distributed and paid to the parties to the suit, according to an agreement of division signed by the parties, the net amount coming to each; and he filed their receipts for the payments. Another petition was also filed March 28, 1899, by John T. Bramlett and N. J. Bramlett, claiming title to a strip of land which had been used as a part of its roadbed by the Carolina, Knoxville & Western Kailway as constructed, and asscx*ting that the land had reverted to the petitioners free from said right of way by reason of the forfeiture of the rights and franchises of the railroad company, and that all the iron rails, cross-ties, and other property thereon had reverted to the petitioners with said land, and they prayed an injunction to prevent the parties to the cause from removing the aforesaid rails, cross-ties, and other property. To this petition there was a demurrer and an answer, and on April 26, 1899, the court passed an order granting the petitioners leave to intervene, with leave to apply for a rehearing or review of any order theretofore made in the cause, and further ordered that the receiver hold all the property then remaining in his hands subject to the further order of the court.</p> <p>To the petition of the state of South Carolina, ex relatione Cunningham and others, the parties to the original cause and the receiver filed their answer, April 26, 1899. They denied the right of the petitioners to intervene, and informed the court. that under its previous orders the rails and other property had been removed, sold, and delivered, and the purchase money paid and distributed; that the rails could not be replaced; and that the petitioners had not shown that there was any probability of the road being operated if the rails could be replaced. The answer then recited the proceedings in the case, and claimed that the decree of Mpy 18, 1897, directing the receiver to dismantle the road and sell all the removable property, was final, and could not be opened upon petition filed after the term. The court, by its order entered April 26, 1899, gave leave to Cunningham and the other petitioners, on behalf of the state of South Carolina, to intervene, and to apply for a rehearing or review of any order or decree made in the cause; and further ordered “that the complainant, D. F. Jack, and the defendants James T. Williams and H. ‘ C. Beattie, do file with the clerk of the court within twenty days from the date of the order a bond in the sum of $25,000, with good and sufficient sureties to be approved by the clerk, and conditioned for their compliance, respectively, with any order or orders that may be granted by the court as to the funds heretofore paid to the parties, respectively, by the receiver W. C. Cochrane, Esq., and arising from the sale of rails taken from the roadbed of the Carolina, Knoxville & Western Railway.” And it was further ordered that the order theretofore granted allowing the dismantling of the railroad be modified by requiring the receiver to hold all the property then in his hands subject to further order of the court. To this order last above recited, and to the ruling of the court overruling the demurrers to both the foregoing petitions, the appellants, Jack, Williams, and Beattie, have appealed, and the appellees have moved to dismiss the appeal.</p>

<p>Husband and Wife — Community Property — Washington Statutes.</p> <p>Land acquired by a husband in the territory of Washington prior to any legislation regarding community property, and which therefore became his separate property, remained so, nor did such legislation have the effect to vest the wife with a community interest therein because of its subsequent increase in value, or because of improvements made with the proceeds of crops raised thereon, though produced by the joint labor of both husband and wife.</p>

<p>Charities — Validity of Charitable Trust — Certainty as to Trustees and-Beneficiaries.</p> <p>A testator devised and bequeathed all his property to his executors in trust to be used in establishing and maintaining free public schools in a certain town. The will provided that the personal property should be sold, and the proceeds, together with the rents from the real estate for 15 years, used in the erection of school buildings and the employment of teachers; that at the end of 15 years the realty should be sold, and the income from the proceeds devoted to school purposes in the same town. It also provided that at the end of the 15 years trustees should be appointed by the judge of the state circuit court and the judge of the United States district court in that district, who should have charge of the estate and the application of the income to the purposes specified. Heidi, that the trust created was not void for indefiniteness or uncertainty as to the plan for appointment of trustees, as in case of a failure of appointment in the manner provided a court of equity would appoint trustees to carry out the purposes of the testator, the trust being a charitable one. favored by the courts; nor was the validity of the trust affected by the failure to designate the beneficiaries any more definitely than to state that the schools to be established should be public, and at all times open to the children of the school district, which should embrace the town.</p>

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

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

<p>1. Accident Insurance — Risk—Knowledge op Agent — Construction or Policy.</p> <p>Where an application for insurance against accident represents the applicant as an importer and dealer in Chinese merchandise and contractor for Chinese labor, and. it is agreed in the application and policy that for any injury received in any occupation classed b.y Hie company as more hazardous than that named in the application the insured shall he entitled to recover only such amount as the premium paid would purchase at the rates fixed for such increased hazard, the fact that the insured made a full disclosure of the business in which he was engaged to the agent of the company who solicited the insurance, and that the latter had full knowledge of the increased risk when the policy was issued, will not render the company liable for more than the amount of insurance that may he purchased with the premium paid for such increased hazard.</p> <p>2. Same — Recovery on Policy.</p> <p>Where, in an action on an accident policy, defendant averred in its answer that the business of foreman of Chinese labor, in which, insured was engaged at the time of the accident, was classified as a special risk, and was much more dangerous than that described in the application of insured, and that the premium paid would have purchased a less amount of insurance than that agreed to he paid in the policy issued, such aver-ments, if proved, would deprive plaintiff of his right to recover on the policy more than the amount of insurance that the premium paid would purchase in the increased risk.</p>

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

This action was brought to recover damages for negligence causing the ■death of John Posey, a fireman in the service of the Texas & Pacific Railway Company, who is alleged to have been killed at Barstow, Tex., on or about the 8th day of February, 1897, by the negligence of the agents and servants of the railway company in charge of a freight train upon which Posey was riding.

<p>1. Fraudulent Conveyances — Questions for Jury — Right to Infer Fraud.</p> <p>In the whole range of the law there is no class of cases in which a jury-should be allowed greater latitude in forming an opinion based upon inference than in cases of fraudulent conveyances involving the question of fraudulent, intent, and knowledge thereof on the part of another, and such cases should be submitted to the jury if there are any badges of fraud, or circumstances which are calculated to excite a suspicion in the mind of a reasonable person that the transaction was not entirely fair and honest.</p> <p>2. Same — Proof of Knowledge of Grantee.</p> <p>Under the rule in Missouri that notice to a grantee of facts and circumstances sufficient to put him on inquiry as to the fraudulent intent with which the conveyance was made by his grantor is not equivalent 'to actual knowledge of such intent, which must be found as a fact when in issue, yet such notice will warrant an inference of knowledge unless it is shown that the inquiries suggested thereby were made, and proved unavailing. ,</p> <p>3. Same — Trust Deed — Effect of Knowledge of Trustee.</p> <p>It is the rule of law in Missouri that if a trustee in a deed of trust given to secure creditors is privy to, or has knowledge of, a fraudulent intent on the part of the grantor in executing the instrument, such knowledge will invalidate the-instrument as to the beneficiaries, and generally he is the agent of his cestui que trust in all matters pertaining to the management and control of the trust property; and if he has any active duties, to perform with respect thereto, "qnd is not merely the repository of the title, having no previous connection with the property, whatever knowledge or notice impairs his legal title also impairs the equitable title of the beneficiaries.</p> <p>4. Same — Actions—Rights of Trustee.</p> <p>Where the trustee in a trust deed conveying personal property intervened in an attachment suit against his grantees, gave bond for the release of the property without assistance from the beneficiaries in the deed, and asserted his right to the property thereunder, his right to recover rests upon the validity of his title, and he cannot invoke the equities of any of the beneficiaries who are not parties to a suit.</p>

<p>1. Carriers — Bill of Ladina — Construction—Place of Delivery.</p> <p>Defendant, undertook to transport plaintiffs’ cotton from a point in Texas to tlie port of New Orleans, and deliver it there to a steamship company for transportation to Europe. By the terms of the hill of lading defendant was not to he liable for any loss hy fire, nor in any other respect than as a warehouseman, while the cotton was awaiting further conveyance by steamship carrier. The cotton was destroyed hy fire while in defendant’s cars at West Wego, the terminus of a branch of its railway line.on the west hank of the Mississippi opposite the city of New Orleans, where defendant had a wharf, and where it usually delivered cotton for export to the steamship carrier. Held) that, West Wego being the", point where the steamship • companies rightfully .expected to receive cotton from Texas lor transportation to Europe, defendant was not liable for the value of the cotton, notwithstanding the exemption in the bill of lading, because of the deviation from the point of delivery named in the bill.</p> <p>2. Same — Negligence—Evidence.</p> <p>Evidence that there were evil-disposed persons in the vicinity of the defendant’s wharf, who might have set fire to the cotton, and that-the defendant, hy keeping a larger force of watchmen in attendance, might; have more efficiently protected the property from risk, does not establish a cause of action for a negligent loss of the cotton, in the absence of any evidence tending to prove tha t the fire actually was the work of an incendiary.</p> <p>8. Same.</p> <p>That one of defendant’s locomotive engines was allowed to stand near the cotton is not evidence that the fire was negligently set thereby, where it is not shown that the locomotive emitted any sparks or dropped any coals, and the fire occurred seven or eight hours after the locomotive had been taken away, and originated in a part of the cotton not stored in the vicinity of the locomotive.</p> <p>4. Same — Diligence nr Extinguishing Fibe.</p> <p>Where a lire broke out among cotton stored on defendant’s wharf, and could have been extinguished before it spread to the cars containing plaintiffs’ cotion, if defendant’s watchman, in his excitement, had not failed to fully uncoil the hose before turning on the hydrant, such facts were not sufficient to show that defendant was negligent in not providing proper appliances and in exercising reasohable diligence for the extinguishment of the lire.</p> <p>5. Same.</p> <p>Evidence that West Wogo was not, in commercial and business understanding, a part of the port of New Orleans during the year previous to the shipment by plaintiffs, and before it was claimed to be such by defendant, was irrelevant.</p>

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

Action by John Spellman against the Kansas City, Pittsburg & Gulf Railroad Company for injuries sustained by plaintiff while in defendant’s employ. From a judgment in favor of plaintiff, the defendant brings error.

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

Division of the District of Washington. See 92 Fed. 425., The defendant in error brought an action agáinst the plaintiff in error, the Port Blakely Mill Company, as the owner of the bark Prussia, to recover damages caused by delay in the delivery of horses shipped on said bark from Scat do, Wash., to Dyea, Alaska.

<p>1. Trial — Instruction’s to Jury — Directing Verdict.</p> <p>Where the court is in doubt as to whether a general charge to the jury to return a verdict for defendant upon the evidence should he given, the doubt should be resolved in favor of the submission of the case to the jury.</p> <p>3. Master and Servant — Injury to Employe — Assumption of Risk — Defective Appliances — Directing Verdict.</p> <p>While plaintiff was assisting in raising the span of a bridge, by hanging loops of track steel around the corner of the span, passing timber through the loops, and then elevating same by means of jackscrews, one of the loops broke, thereby causing a timber to fall against plaintiff, and throwing him from the cribbing, on which he was working a jackscrew, on to the ground below, and injuring him. Plaintiff knew the kind of material the loops were made of, and that they might break if too much strain was put upon them, and saw two of them break before the one by which he was injured, but the latter was defective, and this was not known to plaintiff. Held, that since in continuing to work after two of the loops broke, and when the third loop was strained, and he feared that would also break, plaintiff did not assume the risk incident to the use of the defective loop, the court properly refused to direct a verdict for defendant.</p> <p>& Same — Proximate Cause — Act of Fellow Servant — Instructions to' Jury.</p> <p>The evidence tended to show that when the loop in question broke the timber that struck plaintiff was pushed against him by the foreman in an attempt to save himself. Held, that, the breaking of the loop being the proximate cause of the injury to plaintiff, the court properly refused to instruct the jury that, if they believed that the timber would have fallen without injury to plaintiff if it had not 'been pushed by the foreman, then the injury to plaintiff was caused by the act of a fellow servant, for which he could not recover of the employer.</p> <p>4. Same — Instructions to Jury.</p> <p>An instruction that unless plaintiff received his injuries from the natural and probable result of raising the end of the bridge, and by the means employed in raising same, he could not recover, was properly refused, since it eliminated the issue as to whether the appliances furnished by the employer were suitable, proper, and reasonably safe, and was calculated to mislead the jury.</p> <p>6. Same.</p> <p>One of the issues in the case being whether the loop furnished by defendant was suitable and reasonably safe, the court properly refused to instruct the jury that plaintiff could not recover if he knew, or by the exercise of ordinary care might have' known, that the work undertaken was dangerous.</p>

<p>1. Railroads — Negligence — Defective Tunnel — Personal Injury — Evidence.</p> <p>Plaintiff, who was conductor of a freight train on defendant’s road, was injured by reason of his head striking against a rock in the roof of a tunnel, while riding on his train, seated on the top of the side of the cupola of the caboose. The evidence showed that the tunnel, at the point where plaintiff entered, was 18 feet from the top of the rail to the arch of the road, and that at 53 feet from the entrance it measured but 15 feet 10½ inches; that the standard clearance for tunnels is 20 feet, which is 19 feet and 7 or 8 inches above the top of the rail; and that it is customary to construct them so they will have a uniform section throughout, and not leave projections which will encroach upon the uniform section. It was also shown that some railroads use telltales or ropes hanging down near the approach t,o tunnels to warn men on top of a train, but that no warning was given at the entrance of defendant’s tunnel. Eeld, that a request to instruct the jury for defendant, on the ground that the evidence failed to show that defendant was negligent in the construction of the tunnel, was properly refused.</p> <p>3. Same — Contributory Negligence.</p> <p>At the time of his injury, plaintiff was seated on the top of the side of the cupola of the caboose; having stationed himself there in order that he might see ahead, and that the engineer might see him. Ilis train had already passed through two or three tunnels, and the one in which he was injured was of sufficient height at the entrance to clear him, but after proceeding therein about 50 feet his head struck against a rock in the roof of the tunnel, and. he was knocked- off, and run over by the train. Plaintiff had received no notice that the height of the tunnel was not uniform, and he had no knowledge that such- was not the case. The evidence showed that plaintiff’s position on the train was not improper, but that the custom is for men riding on top of a train to lie down when passing through a tunnel, and that it is the duty of a man in charge of a train to understand the condition of the road over which he runs. -Relé, that the question whether plaintiff was guilty of negligence contributing to his injury was properly submitted to the jury.</p>

<p>Bankruptcy — Exempt Property — Rights of Mortgage Creditor.</p> <p>Where property claimed by a bankrupt as exempt has been set apart and delivered to him by the trustee, it passes out of the possession and control of the court of bankruptcy, and the trustee has no right or title thereto, nor the general creditors any interest or equity in such property; and therefore the court of bankruptcy will not, on the petition of a creditor claiming a lien on such property by virtue of a chattel mortgage, order the bankrupt to restore the property to the trustee, in order that it may be sold by the latter for the benefit of the mortgagee.</p>

In Bankruptcy. On exceptions and on motion to confirm tbe report of tbe referee recommending that a discharge be denied tbe bankrupt because of bis having concealed from tbe trustee bis interest in certain real and personal property. The referee recommended the denial of a discharge on the ground that the eleventh specification was well pleaded and its averments sustained by the proof. As originally filed specifications numbered 7 and 9 were defective.

In Bankruptcy. On petition for adjudication in involuntary bank-nipt cy. From the evidence submitted in this case the court finds the fads to be as follows: (1) That for more than six months next preceding March 2, 1900, the date of the filing of the petition by creditors in this case, the defendant, William .T. Thompson, resided in Emmet; county, Iowa.

<p>Bankruptcy — Property Vesting in Trustee — Contingent Interest in Estate in Remainder — Wills—Construction.</p> <p>Under 'a devise to tiie use of one for life, with power of disposition by will, and, in case of a failure to exercise the power, the property to go to the surviving next of kin of the testator, one who is next of kin does not take such an interest in the estate in remainder as will pass to the trustee under an assignment in bankruptcy.</p>

<p>1. Mechanics’ Liens — Sufficiency of Notice.</p> <p>Where the mechanic’s lien law of tlio state (Laws N. Y. 1897, c. 418. § 0) provides that a notice of sueli lien, to hind the property, shall state, anions other things, the agreed price or value of the labor performed or materials furnished, and the time when the first and last items of work wen1 performed, or malcriáis furnished, a notice which wholly omits to specify these particulars is insufficient, although the statute also provides that a “substantial compliance" with its provisions shall he sufficient for the validity of the lien.</p> <p>2. Bankruptcy — Dissolution of Liens — Mechanics’ Liens..</p> <p>Where the mechanic’s lien law of the state gives a lien for labor or materials from the time of Uto filing- of a notice claiming such lion, authorizes such notice to be filed at any time during the progress of the work or within 90 days thereafter, and provides that if an action shall not be brought to enforce the lien within a specified time the lien shall be discharged, a lien acquired by the filing of such a notice within four months prior to the filing of a petition in bankruptcy against the insolvent debtor will not be dissolved by bis adjudication as a bankrupt, under the provisions of Bankr. Act 1898, § 67f, not being a “lien obtained through legal proceedings,” within the meaning of that section.</p> <p>8. Same.</p> <p>Nor is such a lien dissolved by section 67e, which provides that an adjudication of bankruptcy shall annul all incumbrances of his property made or given by the bankrupt within four -months prior to the filing of the petition, and intended to hinder, delay, or defraud his creditors, dr which are void by the laws of the state in which the property is situated; for a mechanic’s lien is not created by the debtor, but by the statute, or by the act of the lienor in filing the statutory notice.</p> <p>4. Same — Stay of Action in State Court.</p> <p>Where a creditor claiming a mechanic’s lien on property of a person who has been adjudged bankrupt, over which the court of bankruptcy has acquired jurisdiction, brings an action in a state court for the foreclosure of such lien without leave of the bankruptcy court, it is an unwarrantable interference with assets of the bankrupt in the custody of the latter court, and the further prosecution of such action will be stayed.</p> <p>(Syllabus by the Court.)</p>

<p>1. BANKRUPTCY — PREFERENCES— PAYMENT OF MONEY.</p> <p>A payment of money on account in the ordinary course of business is a transfer of properly, and, if made while the debtor is insolvent, and within four months before he becomes bankrupt, constituios a preference, within the meaning of Bankr. Act 1898, § 60.</p> <p>2. Same-Proof and Allowance of Claims— Preferred Creditors.</p> <p>Under seel ion 57g, providing that “the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences,” a creditor who has received a partial payment of his debt while the debtor ivas insolvent, and wiliiin four months before the latter became bankrupt, cannot prove the balance, of liis debt, as a claim against the estate of the bankrupt without surrendering the preference so received, notwithstanding the fact that, the payment was made in the ordinary course of business, and that the creditor had no knowledge or reasonable cause to believe that the debtor was insolvent, or that a preference was intended.</p>

<p>BANKRUPTCY — JURISDICTION—SlJITS BY TRUSTEES.</p> <p>Under the general grants of jurisdiction to the district courts of the United States, as courts of bankruptcy, in the bankruptcy act of 1898, such a court has jurisdiction of a bill in equity by a trustee in bankruptcy to set aside a conveyance of property previously made by the bankrupt, and alleged to have been fraudulent as to his creditors and preferential in character; and such jurisdiction is not taken away or limited by the provision of section 23b that “suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt might have brought or prosecuted them if proceedings in bankruptcy had not been instituted.”</p>

On Petition for Review of Certain Orders of the District Court oí the United States for the 'Southern District of ‘California, in Bankruptcy.

This cause is brought to this court upon the alleged error of the court below in refusing to require a witness to answer certain questions, and in directing a verdict for the defendant. It appears from the record that one Frederick A. Bartlett, residing at Butte, Mont, filed a petition in bankruptcy on February 8, 1899, and thereafter, in March, 1899, was duly adjudged a bankrupt. Alexander Mackel, the plaintiff in error, was elected trustee of the bankrupt’s, estate.

In Bankruptcy. On the 19th day of March, 1899, J. K. Pruden brought suit in the court of common pleas of Shelby county, Ohio, against John H. Gerdes, the bankrupt, to foreclose a mortgage on real estate, given by Gerdes to Pruden on the 17th day of November; 1897. The Citizens’ Bank of Sidney, Ohio, and the Shelby County Building & Loan Association, who had mortgages upon the same property, were also made defendants.

Erom a conviction of Sam Buekalew for violation of the internal revenue law, defendant brings error. Plaintiff in error was charged by indictment in the United States district court for the Northern district of Texas, at Ft.

<p>1. Constitutional Law — Fourteenth Amendment — County Ordinance — Game — 1 Iabeas Corpus.</p> <p>A county ordinance making it a misdemeanor, a.nd punishable by line or imprisonment, for any person to use “any kind of a repeating shotgun, or any kind of a magazine gun, for the purpose of killing or destroying any kind of wild duck, geese, quail, partridge, doves, or any other birds,” is in conflict with the fourteenth amendment to Const. U. S., providing that no state shall “deprive any person of life, liberty, or property without due process of law,” in that It interferes with one’s right of property in a repeating shotgun or magazine gun.</p> <p>3. Same — Police Power of States — Game—Prohibiting Gun ov Certain Make.</p> <p>Where the manifest purpose of a county ordinance is to "prevent the taking or killing by one person of more than 25 quail, partridge, or grouse in any one day, it is not a reasonable exorcise of the police power to prohibit the killing, within such limit, by the use of a repeating shotgun or magazine gun.</p>

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

The appeal in this case is.from an interlocutory decree in a trade-mark case ordering' ail injunction, and accounting of profits.

<p>1. Patents — Infringement—Glass-Bottle Molds.</p> <p>The Windmill patent, No. 416,389, for a mold, for glass bottles, etc., construed, and held infringed by machines known as the “Powers Machines,” for mechanically pressing and blowing glass articles.</p> <p>2. Same — Machines for Molding and Blowing Bottles.</p> <p>The Rylands patent, No. 416,376, for machinery for the manufacture of glass bottles, which consists of a. rotary table to facilitate the use of molds of the Windmill type, held infringed by the Powers machine as to claim 11, and not infringed as to claim 1.</p> <p>8. Lamb — Term—Limitation by Prior Foreign Patent.</p> <p>To constitute a “foreign patent,” within the meaning of Rev. St. § 4887, which, under such section, will limit the term of a subsequent American patent, it is not essential that the foreign grant shall be the equivalent of a patent granted by the United States, either as to the length of term or the breadth of the exclusive rights secured to the grantee, but it is sufficient if exclusive rights are granted for a definite term.</p> <p>4. Same.</p> <p>Prior to the enactment of patent legislation in Denmark, in 1894, monopolies in inventions in that country were secured by royal letters patent, granted by grace of .the king, through the ministry of the interior, on petition therefor; and such patents gave to the grantee a monopoly to “make and allow to make” the thing patented, for a stated term,, on condition that he carried out his invention within a year and continued to employ it. Held, that such a grant was in prsesenti, and the condition a condition subsequent, and that it was a “foreign patent,” within the meaning of Rev. St. § 4887, whose term limited that of a subsequent patent granted by the United States for the same invention.</p>

<p>Patents — Suit for Infringement — Preliminary Injunction.</p> <p>To authorize the issuance of a preliminary injunction in patent cases, the right must be clear, and the fact of infringement reasonably certain; and a restraining' order, pending hearing on a motion for a preliminary injunction, which, by reason of the time when applied for, will have the effect of preventing the making of sales by defendant for a year, cannot properly be granted when infringement is positively denied in the answer, and no proof is offered. The proper practice in such cases, where complainant’s rights are considered to be in peril, is to require a bond from defendant, to respond in damages for all sales made if infringement shall be shown on final hearing.</p>

<p>Patents — Infringement—Gas Stoves.</p> <p>The Ballard patent, No. 105,011, for a gas stove designed for the heating of rooms, which shows in front a hollow slab of fire clay or other refractory material, provided with perforations in its face to form passages or burners for the gas, and some of which are filled with asbestus fiber so disposed that lengths of the same will be distributed over the face of the slab, discloses a novel, effective, and useful combination, which was not anticipated, and is valid. Such patent.is not restricted to a construction of the stove in which the asbestus is attached in tufts or bunches, but is infringed by one having the same combination of elements, but in which the asbestus is distributed over the whole burner surface.</p>

<p>This- was a suit in equity for infringement of a patent. On final hearing.</p>

<p>1. Patents — Oojsstküctton oe Claims — Limitation by Rejection- and Amendment.</p> <p>Where au applicant for a patent substitutes a new and narrower claim for one rejected by the patent office, and states that he now claims only his exact construction, he cannot insist on a construction of such claim which would make It the equivalent of the one rejected.</p> <p>2. Same — Intuingement— Gas Stoves.</p> <p>The Ballard patent, No. 405,911, for a gas stove, covers merely a structural improvement on a pre-existing type of gas stoves; and in view of the prior art. and especially of the English patent, No. 14,333, granted in 3852 to Boggolt & Peitit, and of the proceedings in the patent office, if such improvement discloses any patentable novelty at all it is within a very narrow compass, and the claim of the patent: must be restricted to the jirecise construction therein illustrated and described. So construed, it covers only a construction in which the asbestos is attached to the face of the slab constituting the burner surface in tufts or bundles held in place by being inserted in perforations in such slab, and is not infringed by a stove in which continuous strips or banks of asbestus fiber are cemented on the flat face of the slab in such maimer as to cover the whole surface.</p>

<p>Appeal from tbe Circuit Court of the United States for the Dis-trict of New Jersey.</p>

<p>Appeal from tie District Court of tie United States for tie Southern District of Yew York.</p> <p>Libel by tlie Atlas Steamship Company, Limited, against a cargo of goods belonging to the Colombian Land Company. Judgment for libelant, and respondent appeals.</p>

<p>In Admiralty. Suit to recover for damage to goods in shipment.</p>

<p>In Admiralty. Suit in rein to recover for damage to cargo in shipment.</p>

<p>1. Removal op Causes — Time of Ai>plic.í.tion — State Statute — Judicial Notice.</p> <p>On consideration of a. motion to remand a cause to the state court because the petition for removal was not tiled in time, the federal court cannot take judicial notice of a rule of the state court by which the time in which i>leadings may be filed is extended beyond the date fixed by the general statute of the state.</p> <p>2. Same — Petition by One of Several Defendants.</p> <p>Tinder Act Gong. 1887-88, providing for the removal of causes from the state to the federal courts whore the controversy is between citizens of different states, an application by one only of two defendants oí different citizenship from the plaintiff will not entitle the petitioning party to a removal.</p> <p>8. Same — Federal Question Involved.</p> <p>The objection, to a petition for the removal of a cause, that all of the defendants have not united in asking for the removal, is valid as well where the removal is sought on the ground that a federal question is involved as where the application is based on diversity of citizenship.</p> <p>4. Same.</p> <p>Whether an action in a state court against a receiver to recover damages for a personal injury resulting from alleged negligence in the operation of a railway, and involving- only a question of liability for negligence, is 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, is reserved.1</p>

<p>'Removal op Causes — Divki sity ov Citizenship — Time for Filing Petition.</p> <p>A cause is not removable on tlie ground of diversity of citizenship, where ihe petition therefor was not filed until three months after an answer was due from the petitioning defendant in the state court, and such petition, when filed, failed to disclose the citizenship of a co-defendant, or the existence of a separable controversy.1</p>

<p>•L Corporations — Manrer of Conveying Real Estate — Regulation by State Statute.</p> <p>The maimer in which real estate may be transferred by a corporation, either domestic or foreign, is a matter which it is within the power of the state in which such real estate is situated to regulate.</p> <p>2. Same — Mortgage by Mining Corporation — California Statute.</p> <p>The California act of April 23, 1880 (St. 1880, p. 131, § 1), which provides that “it shall not be lawful for the directors of any mining corporation to sell, lease, mortgage, or otherwise dispose of the whole or any part of the mining ground owned or held by such corporation, * * * unless such act be ratified by the holders of at least two-thirds of the capital stock of such corporation,” having been construed-by the supreme court of the state to apply to foreign as well as domestic corporations owning mining ground in the state, and to render such ratification, in the manner prescribed by the statute, absolutely essential to the power of the directors to convey or mortgage such mining ground, such construction is binding upon the federal courts.</p>

<p>1. Adverse Possession — Possession of Tenant — Evidence—Action to Quiet Title.</p> <p>Proof of possession of land under color of title for more than 10 years by roving squatters as tenants, who were told to remain on the land, to cut and build where they pleased, and to hold possession for plaintiffs or their testator, or to stay on the land until turned off by plaintiffs, but with whom no definite agreement was made as to their tenancy, and some of whom either repudiated the rights of plaintiffs, or told contradictory accounts of their possession, when taken in connection with evidence of possession by tenants under written lease from plaintiffs for 6 or 6 years, with one formerly in possession under claim of independent title, is not sufficient to show such open, notorious, and continuous possession for a period of 10 years as will give title by adverse possession.</p> <p>2. Quieting Title — Illegal Deed — Chain of Title.</p> <p>° A deed which is illegal, but not void, is not sufficient to invalidate the title of one holding by an otherwise regular chain of title from the pat-entee.</p>

<p>1. Railroads — Receivership of Consolidated Road — Right to Apportionment of Preferential Debts.</p> <p>Where a court, on application of a mortgagee, has taken possession of and operated by its receivers a railroad formed by the consolidation of different lines, and such receivers, under orders of the court, procured or’assented to by the complainant, have paid operating expenses, taxes, debts for equipment, and interest on prior divisional mortgages, on certain of the constituent lines, and in so doing have incurred a preferential indebtedness, the complainant is not entitled, on the subsequent foreclosure and adjustment in the same suit of all the various mortgages on the property, to have such preferential debt apportioned between the several mortgage interests, or to require an accounting between the several constituent lines of the receipts and disbursements on account of each during the receivership, and prior to its extension to the divisional mortgages, which would result in the displacement of the liens of some of such mortgages in favor of its own; but having the junior lien, and having procured the receivership in its own interest, the debt thereby created is primarily a charge upon its interest in the property.</p> <p>8. Same — Mortgages—After-Acquired Property Clause.</p> <p>Am after-acquired property clause in a railroad mortgage extends only to property subsequently acquired by the mortgagor, and, where the mortgagor company becomes merged by consolidation in a new company, such clause cannot be construed to cover equipment acquired by the consolidated company as against a mortgagee of such company.</p> <p>3. Same — Exchange of Bonds — Novation.</p> <p>Articles of consolidation between railroad companies provided for an issue of bonds by tbe consolidated' company to be exchanged for outstanding bonds of the constituent companies. They authorized the directors of the new company, in case any of the old bonds remained un-exchanged, to “make such arrangement in regard thereto, not inconsistent with these articles, as in their opinion the interest of said consolidated company may require,” and also, in another article, to “adopt such plan, not inconsistent with these articles, as shall protect the rights of the holders of new bonds issued in such exchange, as against the holder of any bond of any of such constituent companies who shall not exchange the same as herein provided.” No action was ever taken by the directors under either of said provisions. Holders of a portion of the second mortgáge bonds of one of the constituent companies delivered their bonds to an agent of the new company in exchange for new bonds, nothing being said as to the disposition to be made of the surrendered bonds. Held, that the exchange worked a novation of the debt, and operated as an 'extinguishment of the bonds surrendered.</p> <p>4. Same — Equitable Right to Enforce Surrendered Bonds.</p> <p>No action having been taken by the consolidated company indicating an intention to keep the surrendered bonds alive, but it having subsequently issued a second series of bonds secured by a new mortgage, the recitals of prior indebtedness in which showed such bonds to have been paid, the equities of purchasers of bonds of such new issue, and of subsequent purchasers of unexchanged bonds secured by the same mortgage, in reliance upon the extinguishment of a large part of the debt thereby secured, were superior to any equity in favor of the holders of the first consolidated bonds, whether acquired by exchange or purchase, to have the surrendered bonds kept alive and enforced as collateral security to their holdings.</p>

<p>1. CORPORATIONS- — 'TRANSFER OP STOCK — EFFECT OP STATUTORY PECULATIONS.</p> <p>Act Ark. April 12, IStii) (Sand. & H. Dig. § which requires a certificate of the transfer of stock by a stockholder in a corporation to be filed 1'or record, and provides that “no transfer of stock shall be valid as against any creditor of said stockholder until such certificate shall have been deposited,” is plain and unambiguous, and a court has no authority to restrict its operation by construction. Under such provision, the legal and equitable title to stock transferred remains in the transferror, as to his creditors, until the required certificate is filed; and the title of a credit ir who purchases such stock at a sale under execution or attachment against the transferror, although he pays no cash therefor, but merely credits the amount of his bid on his judgment, as he may lawfully do, cannot be impeached, in the absence of fraud, by a prior transferee, who failed to file a certificate, on the ground that-the purchaser had actual knowledge of the transfer.</p> <p>2. Attachment— Validity — Fraudulent Collusion.</p> <p>The attachment and sale by a creditor of stock in a corporation which had been transferred by, his debtor, but which, owing to the failure of the transferee to have the transfer recorded as required by statute, remained the property of the transferror as to his creditors, such action having been taken in accordance with an understanding between the debtor and creditor and the corporation for the double purpose of collecting the debt and of getting the stock attached out of the hands ⅛* the transferee, who was regarded as hostile to the existing management, caiarct Cc keW in jaw as a fraud upon the transferee where the proceedings were regmar, since all that was done was perfectly legal in itself, and there can be no such thing as fraudulent collusion to do a legal act.</p> <p>3. Judicial Sale — Constructive Fraud — Inadequacy of Price.</p> <p>A transferee of $285,000 of the stock of a corporation worth at least $200,000 failed to record a certificate of the transfer, as required by the státe statute, to render the transfer valid as against creditors of the transferror. Such a creditor, having a claim of $12,000, brought suit thereon, attached such stock, and obtained a judgment and an order for its sale. Under such order, which required the stock to be sold in solido or in blocks to suit the purchaser, he caused the entire amount of stock to be sold in bulk, and became the purchaser for $1,000, which he credited on his judgment. It was an admitted purpose of both creditor and debtor to devest the transferee of his stock. Held, that the action of the creditor in causing the sale in bulk of property so largely exceeding in value the amount of the judgment, and in purchasing it for a price so inadequate, operated as a constructive fraud upon the transferee, which vitiated the sale, and that the fact that the transferee had knowledge of the sale did not deprive him of the right to relief against it in equity.</p>

The appeal is from a decree, entered on demurrer, which dismissed the bill of complaint, as amended, for want of equity. 96 Fed. 664.

At Law. Action for personal injuries by collision of an engine with a freight train. The plaintiff was riding in the cab of the engine, and, being thrown violently upon his head, was seriously and permanently injured. The negligence of the engineer was not contested, but; admitted, by the defendant company, which discharged him because of this occurrence.

<p>Executors — Pasties to Suit on Claim against Estate — California Statute.</p> <p>Code Civ. Proc. Cal. § 1190 et seq., provides that claims against the estate of a decedent must be presented to the executor or administrator and 1o the judge of the superior court for allowance, and, if rejected, suit may be brought thereon against the executor or administrator. It also provides (section 1510) that, if the executor or administrator is a creditor, his claim must be presented to the judge, and, if disallowed, suit may be brought thereon against the estate, and summons served upon the judge, who is authorized to appoint counsel on behalf of the estate. Held, that the latter section was not applicable where one of two or more executors was a creditor of the estate, but that in such case his claim should be presented for allowance to the other executors, and, if disallowed, suit should be brought against them, and not against the estate eo nomine.</p>

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

This cause comes here upon a. writ of error to review a judgment of the circuit court, Southern district of .New York, entered upon a verdict which was directed in favor of the plaintiff below, who is defendant in error. The action was brought to recover for one quarter’s rent of premises No. 140 Sixth avenue, under a lease made by Sayles to defendant (plaintiff in error), at a rent of §10,000 a year. The facts sufficiently appear in the opinion.

This was an action by plaintiff, as assignee for the benefit of creditors of the firm of W. H. Thomas & Son, to recover the penalty imposed by the national banking act for usury paid the defendant by plaintiff’s assignors. 1

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

<p>In Bankruptcy. On exceptions to decision of referee in bankruptcy disallowing the claims of certain creditors.</p>

This was a petition by W. Frank Kinney, collector of internal revenue, to the district judge, asking the issuance of an attachment for contempt.

<p>1. Tbadb-Makes — IrTFRiNGEsusHT—AnTiFrorAL Words.</p> <p>A person cannot fashion a word not theretofore existing, and, fey using the same as a trade-mark or trade-name, exclude the use by another of an existing word in its meaning suitably adapted to the nature of the article to be sold, where the meaning of such word is quite distinct from the meaning suggested by the artificial word.</p> <p>3. Same — “ Cuticura. ”</p> <p>The word “Cuticura,” used as a trade-mark for a soap, is not infringed by the use of the word “Cuticle,” also as a name for a toilet soap.</p> <p>8. Same — Unfair Competition.</p> <p>Complainant was the proprietor of the word “Cuticura,” as a trademark for a toilet soap. Defendant also put up for sale and placed upon the market a toilet soap, under the name “Cuticle Soap.” In circulars which defendant inclosed in the wrapper with each cake of soap, it copied some of the reading matter from complainant’s circulars similarly inclosed. The style of letters used in printing the name “Cuticle” was also somewhat similar to those in which the name “Cuticura” was printed by complainant. Eelé, that such facts did not establish unfair competition, where defendant’s soap itself was of a different color from complainant’s, and the wrappers inclosing each cake and the boxes in which a number of cakes were inclosed were so entirely dissimilar in color and general appearance that no purchaser of ordinary observation would be deceived thereby1</p>

<p>Jurisdiction of Federal Courts — Cases Arising under Patent Laws.</p> <p>Complainant granted a license to a corporation to construct and use within a Specified territory dredging apparatus made in accordance with patents owned hy him, the contract providing for the forfeiture to complainant of any of such apparatus used outside the territory named. The corporation became insolvent, and a.dredging machine built under such license was sold by a receiver, and was subsequently purchased by defendant, who removed and used it outside the prescribed territory. Held!, that a suit by complainant for the forfeiture of the dredge and for infringement of his patents, alleged to have resulted from its use outside the territory covered by the license, in which the validity of such patents was not denied, -was not one arising under the patent laws of the United States, but one on contract, in which the rights of the parties were governed by the general principles of law and equity, and not by the patent laws, the question of infringement being dependent entirely on the construction of the contract; and that, the parties being citizens of the same state, the federal courts were wdthout jurisdiction.</p>

<p>1, Patents — Construction of Claims.</p> <p>A claim is to be construed In accordance with the language In which It is expressed, unaided by the drawings and specification, or it is to be narrowed to the construction shown in the drawings a.nd specification. It cannot be enlarged by reading into it as an element a particular feature-of the construction as sliown in the drawings, while other features are treated as nonessential.</p> <p>2. Kame — ■ Infringement — Band-Saw Mill.</p> <p>The Prescott patent, No. 3f50,8Sl, for a band-saw mill, if conceded to Involve invention which will sustain Its validity, is limited by the prior art to the precise construction shown in the drawings and specification, and. as so limited, it is not infringed by a mill constructed In accordance with tlie Wilkin patent.</p>

<p>Patents — Invention—Wire for Check-Row Corn Planters.</p> <p>The Barlow patent, No. 328,452, for improvements in wire for check-row corn planters, is not so clearly void on its face for lack of invention as to justify its being so adjudged on demurrer to a bill for infringement.</p>

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

The bill in equity in this ease was brought in the circuit court for the Southern district of New York to restrain the alleged infringement of the second claim of letters patent No. 374.888, applied for December 22, 1883. and dated December 13, 1887, to Levi ByWater, for an improved knitted fabric.

<p>In Admiralty. Suit to recover for personal injury on tlie ground of negligence.</p>

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

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>In Admiralty. On March 33, 1899, a libel was filed by the appellant in the district eourt of the United States for the Northern district of California, in personam, against William J. Adams, appellee herein, as owner of the barkentine Retriever, to recover damages not very clearly stated, but which appear to bo claimed as wages for services rendered on board the vessel for one month at $35 per month; also damages at üio rate of $35 per month for 14 months after the appellant liad been discharged from the vessel, and while he was unable to obtain other employment; also damages for amount expended for board and lodgings during the latter period at $20 per month, and for damages by reason of exposure and want of necessary food and clothing in the sum of $2,000. According to the testimony on the part of the appellant, the facts are these: On May 10, 1895, and while a strike of the sailors’ union was in progress in the port of San Francisco, rendering it very difficult, for shipowners and masters to secure the services of seamen, the appellant, who never had been to sea, was approached by one John Curtin, who asked him if he wanted a job, and introduced him to Capt. Bogan, master of the Retriever. He was induced by said Curtin and Capt. Bogan to sign papers, which were represented to him to be only for the purpose of giving the person before whom the same were signed, purporting to be a United States shipping commissioner, something by which the said alleged shipping commissioner could keep track of him. Capt. Bogan told him, when he demurred to going on board ship for want of experience, that all he would have to do would be to help load lumber, and that he would receive therefor 825 per month and board. Under these representations, appellant went on board the Retriever, then at anchor in the Bay of San Francisco. Five days thereafter, having then secured a full erew, the vessel proceeded upon her voyage to Fort Hadlock, on Puget Sound, and during the trip the appellant remained on board, cleaning woodwork, sawing wood, and performing such other work as was required of him. On the voyage he suffered much hardship in consequence of not being supplied with proper clothing, and from the fact that he had no bedding at all, both of which the master had represented to him would be furnished him on board the ship; and generally harsh treatment was accorded the appellant and all the members of the crew save two, Harry Baker and William Baker, witnesses for the appellant, who were the only experienced sailors on board. William Baker testifies that the mate said to him, five or six days after they had left port, referring to the port of destination, that they “were going to run them all ashore there.” And at about the same time the master said to Harry Baker, referring to all the inexperienced men, that “ho wanted to get rid of them on the Sound”; and again, that “he wanted to get rid of them on the Sound, and ship some sailors on the return voyage.” The appellant says that a short time before the vessel’s arrival at Port Hadlock the master said in forcible language, T am going to put a plank ashore, and I want every one of you to leave the moment the anchor drops,” whereupon the mate said to the appellant, “That means yon, too,” to which the appellant replied, “I am not going to leave this vessel until she takes me back where she took me from.” And it appears from the testimony of Harry Baker that all of the crew but the two Bakers did leave the vessel at Port Hadlock, and the Retriever returned to San Francisco with a crew of experienced seamen. Upon arrival at Port Hadlock the vessel was beached, and the appellant, among others, was compelled to stand in the water, which was very cold, to paint the ship’s bottom, which exposure caused him severe physical suffering. He finally told the first mate, under whom he was working, that he could stand it no longer. The mate snatched the tools out oí his hands, raised a brush as if to strike him, and in profane language told him to “get away from here.” Upon attenrpting to work under the second mate, he received similar treatment, and was then again driven away by the first mate. Thereupon he applied to the master for his pay, and the master replied: “You don’t suppose you are going to get any pay, do yon? You have got your pay. You had your board.” This was just at the dinner hour. The appellant went on board, got his dinner, took his clothes, and went ashore. The next day he made his way to Port Townsend with some difficulty, and thereafter (the record does not disclose when) returned to San Francisco. The appellee, in his answer, denies generally the averments of the libel, and contends that the appellant deserted the Retriever at Port Hadlock, after having entered into a contract with the master to ship for the voyage, and, under the terms of said contract, is entitled to no remuneration for the services rendered by him. Oapt. Bogan testifies that he first saw the appellant on board the Retriever; that he worked during the trip to Port Hadlock, doing what he was told to do; and that he was not paid for his services. The cashier of the Shipowners’ Association of San Francisco testifies that he enrolled the appellant in the register kept in the office of that association at that time; that he does not positively remember, but thinks, from the articles, that the' crew signed them in the office. The only other evidence introduced by the appellee is the shipping articles, from which it appears that the crew of the Retriever signed for a voyage not to exceed six months in duration, between San Francisco as the homo port and Port Hadlock. The articles contain the usual stipulations, among which are the following: “And it is herein expressly agreed, without reservation of any sort, that in case of the desertion from the vessel of any of the crew, the said persons so deserting shall forfeit to the owners of the said vessel all the wages due them.” “It is expressly understood that these shipping articles shall be construed to he a civil contract between the master of the vessel and the members of the crew, and that the essence of the contract is the undertaking of each member of the crew to complete the specified voyage before becoming entitled to any portion of his pay.” The appellant, upon cross-examination, admitted that he signed these shippiag articles, 'and agreed to go upon said voyage, his compensation to be $2ñ per month. The court below, in its opinion, held that, while the appellant was justified in leaving the ship, the libel should be dismissed, as there was a fatal variance between tire case proven and the cause of action set up in the libel. The libel was, by the decree, accordingly peremptorily dismissed. (D. C.) 93 Fed. 977. From this decree an appeal has been taken to this court.</p>

<p>In Admiralty. On application for distribution of award for salvage services.</p>

<p>In Equity. On demurrers to bill and cross bill</p>

<p>At Law. On motion to quash and sot aside service of original notice.</p>

<p>1. Removal of Causes — Jurisdiction—Presumption.</p> <p>■ If the right of removal to a federal court does not appear in the record of the state court, it must be clearly shown in the petition for removal, or it will be presumed that it does not exist.</p> <p>2. Same — Diverse Citizenship — Nonresident Defendant — Petition-—Sufficiency.</p> <p>A petition by defendant for removal of a cause to a federal court on the ground of diverse citizenship, which alleges diverse citizenship and residence of the parties, but fails to allege that the defendant is a “nonresident of the state” where the suit is brought, is insufficient to authorize a removal under 25 Stat. p. 433, c. 806, § 2, providing that suits between citizens of different states pending in a state court, involving amounts within the jurisdiction of the federal court, may be removed by the defendant or defendants therein, “being nonresidents of the state.”1</p> <p>8. Same.</p> <p>Where the Jurisdiction of a federal court depends on diverse citizenship, either the record or the petition for removal must show that defendant is a nonresident of the state where the suit is brought, and, if this does not appear, the state court retains jurisdiction,' though the proceedings for removal may have brought the papers in the case to the federal court.</p> <p>4. Same — Amending Petition.</p> <p>A federal court has no jurisdiction to allow a petition for removal to be amended so as to show that the cause is in fact removable.</p>

<p>Petition for Writ of Habeas Corpus. Case argued and submitted on the petition and return. Petitioner discharged</p>

On Motion to Remand to State Court. The plaintiff’s petition, in its caption and in the body of it, as also the summons or writ, sues the defendant “as the receiver of the Cincinnati, Jackson & Mackinaw Railway Company,” but nowhere states the fact that he was appointed receiver, or that he holds and operates the road by order of the United States circuit court for the Northern district of Ohio.

<p>In Equity. Suit for relief by injunction against unfair competition in trade. On final hearing.</p>

<p>1. Commissioner’s Fees — Method or Computing Folios in Docket Entries.</p> <p>An order of court requires each commissioner to keep a docket, in which should he entered the proceedings in a cause. Where it appears that these entries are not a more recital, but a chronological entry of steps taken in Hie cause, the commissioner is entitled to charge 15 cents per folio, counting each separate entry with relation to a distinct step or proceeding in the case as a separate folio, although they may relate to tho same case and be entered under the same caption.</p> <p>2. Same — Per Diem for Hearing.</p> <p>Paragraph 3, § 817, Rev. St., provided, “For hearing and deciding on criminal charge, five dollars a day for the time necessarily employed.” Such section does not suggest any particular description of criminal charge for which such per diem is chargeable, and it must be accepted . in its general souse, and include hearing on capias and bench warrant.</p> <p>8. Same — Fees for Copies of Subpoenas.</p> <p>A rule of court requiring the clerk to make copies of all process issued by the court, including subpoenas for witnesses, and providing that all persons on whom process is served shall have a copy thereof, is binding on a commissioner, and lie is entitled to fees for copies of subpoenas issued by him in criminal cases to be heard before him. '</p> <p>4. Same — Unexecuted Writs.</p> <p>If a warrant of arrest is returned by the marshal as “Not found,” this is such a return as should be entered by the commissioner, and is a proper claim against the government.</p> <p>5. Same — Filing Copies of Affidavit.</p> <p>A commissioner is entitled to charge the usual fee for filing copies of affidavits taken before other commissioners in the district, and which have been attached to warrants and returned before such commissioner.</p> <p>6. Same — Verification to Depot? Marshals’ Accounts.</p> <p>Up to the time a commissioner is notified of a change in the regulations relative to the authentication, of deputy marshals’ accounts for charges and fees in cases heard before such commissioners, he is entitled to charge for fees earned relative to oath and jurat to such accounts, which had been theretofore required by regulations from the department.</p> <p>7. Same — Copies of Affidavits.</p> <p>The act of August 18, 1894, requires all officers or magistrates issuing warrants to attach thereto a certified copy of tho complaint; and, where this is done by the commissioner, he is entitled to the statutory fee for the copy.</p> <p>8. Same — Separate Commitments for Defendants Jointly Arrested.</p> <p>The circumstance that two or more defendants are arrested under the same warrant does not necessarily make it the duty of the commissioner to commit the said defendants jointly under the same temporary commitment. An allowance for separate writs, when issued, is deemed proper; and where the defendant has been brought before a commissioner, and committed pending the hearing, it is not necessary to issue another temporary commitment, where the hearing is continued, if the defendant is recommitted to the custody of the same jailer pending a further disposition of the cause.</p> <p>9. • Same — Per Diems m Poor-Convict Cases.</p> <p>The. act'of May 28, 1890, prescribing a new set of fees for commissioners, applies only to tho new set of commissioners to be appointed July 1, 1897; and the old fee bill applied to commissioners up to that time.</p>

<p>1. Public Lands — Control or Disposition — Powers op Congress.</p> <p>Tlie paramount control over tlie disposition of the public lands of the United States remains in congress, and the fact that a contest over the right of entry of such lands is pending before the land department, a. creation of c-ongress, and not ol‘ the constitution, does not deprive congress of such paramount control; and. if may at any time, by an act passed for that purpose, withdraw such contest from the jurisdiction of the department, and itself determine the rights of the parties.</p> <p>3. Same — Decision op Contest by Secretary — Right of Successor to Annul.</p> <p>A secretary of the interior has no power to annul a decision of his predecessor which determines the rights of-the parties to a contest for entry of public lands; such determination being a judicial act, which can only be reviewed by the courts.</p> <p>3. Same — Contest op Entry — Eights op Contestant.</p> <p>Section 2 of the act of May 14, 18S0 (21 Stat. 141), giving a contestant who has paid the land-office fees, and procured the cancellation of a prior entry Qf public lands, a preferred right to enter the same, gives such contestant no vested rights in the land until the cancellation of the existing entry; and hence, where the decision of the land officers, so far as a contest had progressed, was adverse to the contestant, and during the pendency of the proceedin'gs congress deprived the land department of further jurisdiction by the passage of a special act confirming the title of the entryman, the contestant acquired no vested rights in the land which a court can recognize or enforce.</p> <p>4. Same — Payment op Contest Pees.</p> <p>The payment of contest fees and costs by a contestant of an entry of public land gives him no right in the land, unless the contest results in the cancellation of the prior entry.</p>

<p>1. Authority of Postmaster General.</p> <p>Under 26 Stat. 406, giving the postmaster general authority, on evidence satisfactory to him that any person or company is engaged in conducting any scheme or device for obtaining money through the mails by means of false pretenses, to direct postmasters to return to the sender all letters or other matter direded to such person or company, an order by the postmaster general directing all letters addressed to the complainants to be returned to the senders is not in excess of his authority.</p> <p>2. Same — Right to Use the Mails — Property.</p> <p>The right to use the mails is a statutory privilege, and not property in the constitutional sense, and hence an act of congress giving the postmaster general authority to determine whether a person has forfeited the right is not obnoxious to the constitution, inasmuch as it does not deprive him of his property without due process of law, or subject him to punishment for an offense.</p> <p>8. Same- -Arbitrary Power — Jurisdiction of Court.</p> <p>The mere fact that the power conferred on the postmaster general by 26 Stat. 466, giving him authority to order all mail directed to parties engaged in any scheme to obtain money through the mails by false pretenses to be returned to the senders, is an arbitrary power, and may bo abused, does not justify a court in assuming to control its exercise.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In 1886 .Tohn Glenn, a citizen of Virginia, as trustee for the benefit of the creditors of the National Express & Transportation Company, a Virginia corporation, brought an action at law against Amos Dotting, a citizen of the city a.nd state of New York, before the circuit court for the Southern district of New York, to recover the amount of two calls made upon Cotting for the payment of his subscription to the stock of said company, in which suit Cot-ting appeared. Bills in equity were brought in the same court to restrain the prosecution of divers suits of this character which had been commenced about the same time, and, pending the litigation upon these equity suits, agreements for the extension of time to plead in the Dotting suit were entered into by the respective attorneys. Cotting died on May 12, 1889, his will was probated and letters testamentary were issued in June, 18S9, tlie executors thereafter died, and letters of administration with the will annexed were issued to-John E. Roosevelt and I-Catie T. Sehermerhorn on January 30, 1891. By the will, after provisions for the benefit of the testator’s wife, the residuary estate was given to a trustee for the benefit of the testator’s children and his wife. She died before 1892. Thereafter the trustee named in the will resigned, and on February 29, 1892, John E. Koosevelt and W. Emlen Roosevelt were appointed his successors. The administrators with the will annexed, having, as they supposed, collected nearly all the assets, brought an action in the supreme court of the state of New York to settle their accounts in March, 1892, in which action their accounts were approved, and they were ordered on April 8, 1892, to transfer the assets to the trustees under the will, which was done on the same day. In June, 1893, the bills in equity were dismissed, and the action of Glenn against Cotting was revived against his administrators with the will annexed on September 6, 1893. Up to this time this claim had not been presented against the estate for payment, and the administrators were not aware of its existence or of the existence of the action at law until November, 1892. They defended this suit, and judgment was rendered against them as administrators on February 28, 1895, for $6,221.90. In September, 1895, Glenn applied to the surrogate’s court for leave to issue execution against the administrators, and the petition was dismissed in December, 1896. In May of that year the complainant in this suit, George G. Carey, a citizen of Maryland, was appointed to succeed Glenn as trustee for the creditors of the National Express & Transportation Company. When the action at law was revived, the only cash assets of Cotting’s estate in the hands of his administrators were $142.50. They held two claims against insolvents, of very uncertain value, upon which they hoped that something more would be received. After that time, they received in cash $842.29. The present suit is a bill in equity against the trustees of the Cotting estate, the executor of his wife, his two children, and three minor grandchildren, to impress the trust fund with a trust in favor of Carey, as trustee, for the amount of the judgment against the administrators, with interest. The circuit court for the Southern district of New York, before which the trial was brought, directed the trustees to pay the amount from the trust, fund, and charge it against the shares of the beneficiaries. 91 Fed. ^ 567.</p>

This is an action for money had and received, which was brought by the Nevada Company, the plaintiff in error, against Philo T. Farnsworth, the defendant in error. The complaint stated two independent causes of action of the same class in separate counts. Upon the first cause of action a verdict was returned against the Nevada Company, while upon the second cause of action a verdict was returned in its favor.

<p>1. Appeal — Assignments op Error.</p> <p>The record on appeal should not he incumbered with numerous assignments of error when a few would suffice to present in an intelligible manner all of the material questions involved in the case. The assignment of a large number of errors raises no presumption that the judgment is erroneous.</p> <p>2. Same — Review—Admission op Evidence.</p> <p>When a complaint states two or more causes of action, a judgment obtained thereunder cannot be reversed because of the admission of evidence which was competent under either count; and no obligation rests upon counsel, when offering testimony, to announce in advance to which count it is addressed, unless required to do so by the trial judge.</p> <p>8. Evidence — Actton for Money Received — Relations op Parties.</p> <p>In an action by a corporation to recover money alleged to have been intrusted to defendant to pay for certain property which he represented that he had bought in its behalf at a price which was greatly in excess of that actually paid by him, plaintiff claiming the right to recover the excess as money received to its use, it is competent for the plaintiff to show the relations existing between the parties at, the time of the transactions, and for that purpose the statement filed by the plaintiff with state officers at the time of its incorporation, showing defendant to be one of its directors and its general manager, and a copy of the proceedings of the directors in which he was elected general manager, are admissible where it is shown that defendant had knowledge of such action, and that he in fact acted as' general manager from the time of the organization of plaintiff.</p> <p>4. /Same — Introductory Statements by Witness.</p> <p>In such case the admission in evidence of a general introductory statement by the president of the corporation as a witness that he was ignorant, of the business of mining, for which purpose the corporation was organized, was not material error.</p> <p>6. Same — Statements of Party.</p> <p>Statements made by defendant to officers of plaintiff before or after negotiations for the purchase of the property were begun respecting such property or its value wore competent as bearing on the question whether plaintiff had reason to believe that defendant was acting as its representative in making the purchase.</p> <p>6. Same — Telegrams between Third Persons.</p> <p>A telegram sent by a third party to the president of the corporation, containing representations as to the value of the property, and a statement that defendant recommended its purchase, together with the answer thereto, authorizing the purchase on certain conditions, were admissible against the defendant where there was testimony tending to show that the first telegram was submitted to and approved by him before it was sent.</p> <p>7. Same — Receipts.</p> <p>Defendant having represented to plaintiff that he had paid towards the purchase of the property the sum of $20,000 in discharge of an indebtedness from him to the company for stock purchased, his receipt for such stock was admissible as showing the receipt by him of the sum of $20,000, or its equivalent, to be applied towards the purchase.</p>

This action was brought by the London & Northwest American Mortgage Company, Limited, the defendant in error, and an English corporation, against Peter Joseph Giesen, the plaintiff in error, to recover the sum of $2,919.90, exclusive of interest; said sum being the amount, in the aggregate, not including interest, of six calls or assessments on 100 shares of its capital stock, that had been levied, with the approval of an English court, in the course of a proceeding pending…

On motion to strike out bill of exceptions. The defendant in error has moved to strike from the record the bill of exceptions. The trial was had at the January term, 1899; motions for a new trial and in arrest of judgment were overruled and judgment entered on April 3d; and on April 18, 1899, the petition for a writ of error, an assignment of errors, and supersedeas bond were filed, and an order entered allowing the writ of error.

Action to recover damages claimed on account of an unlawful combination to restrain interstate and foreign commerce, and a conspiracy on the part of the defendants to establish and control prices of the product of the mills employed in manufacturing red-cedar shingles, in the state of Washington, and to limit the production of red-cedar shingles so as to prevent demoralization of the market by overproduction, and also to recover damages alleged to have been caused by the…

<p>Action by George H. Earle, Jr., receiver of tbe Chestnut Street National Bank, against B. F. Miller. Motion for judgment for want of sufficient affidavit of defense.</p>

<p>In Bankruptcy. Bankrupt’s claim for exemptions.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. Those three appeals from the decision of the circuit court for the Southern district of New York relate to (he proper classification for dutiable purposes of dyestuffs made from coal far.

<p>Patents — Validity and Infringement — Machinery for Pumping Oil Wells.</p> <p>The Allen patent, No. 328,099, for a device for converting motion in oil-pumping apparatus, in which one or more eccentric disks, with loosely-mounted rings, are attached intermediate the ends of an upright driving shaft, — the ends of the pump-actuating rods, leading to wells in any direction, being secured to such rings, — was not anticipated, the nearest to an anticipating device being that shown in patent No. 313,907, issued to the same patentee; and, while the eccentric of the later patent is functionally the mechanical equivalent of the crank-mounted disk of the former, the later device embodies patentable improvements upon the earlier. Such patent also held infringed.</p>

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

<p>1. Patents — Infringement—Ore Crushers.</p> <p>The ¡Sehicrholz pa tent, No. 538.884, for an ore crusher (claim 4), covers a novel combination of mechanical devices, all of which, however, were old in the art; the principal features of the combination being a fixed, vertical central shaft, about which the mechanism which drives the crushing rollers revolves, and having upon its upper end journal boxes; a horizontal shaft turnable in such journal boxes, and carrying a pinion wheel, by means of which the power is transmitted through a gear wheel which turns loosely upon tiie central shaft, and a flexible connection intermediate between such gear wheel and the crushing rollers, by which they are driven. Such claim is not infringed by the machine known as the “Bradley Mill,” which lacks several of the features of such combination, and uses instead devices shown in the prior Yea ton patent. But the machine known as the Bingham or Trent mill embodies all the essential features of sncli claim, and infringes.</p> <p>¾. Same — Contributory Infringement.</p> <p>A member of a firm which made the plans for, and superintended the construction and erection of, an infringing .ore-crushing mill, receiving therefor a commission on its cost, is liable as^ a contributory infringer.</p>

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

<p>1. COLLISION — Steam and Sailing Vessels — Duty of Tug with Tow.</p> <p>The fact that a steam vessel is incumbered with a tow does not relieve her from the duty imposed by the navigation rules of keeping out of the way of a sailing vessel, but rather requires additional care upon her part; and so strict is this rule that she can only escape liability for a collision by showing that it was inevitable, or caused by the culpable negligence of the sailing vessel.</p> <p>2. Samis — Fault—Vessels Crossing.</p> <p>A tug with a tow sighted a schooner approaching on a crossing course, when the vessel were 200 yards apart, but took no steps to avoid collision, except to give danger signals to the schooner, which kept her course, and came in collision with the tug. Held!, that the tug was in fault for the collision, it not being shown that she could not have kept out of the way if she had made proper effort to do so.</p>

This cause comes here upon appeal by the respondents from a decree of the district court, Southern district of New York (82 Fed. 490), dividing the damages resulting from a collision between the steamship Orione and whaling bark Swallow, which happened about half an hour after midnight, March 31, 1895, some 250 miles off the coast of Brazil.

<p>1. Collision — Steamer and Sailing Vessel — Failure to Exhibit Flare-Up Light.</p> <p>The navigation rules do not make it obligatory on a vessel to use a flareup light unless the circumstances are such that' prudence would require it; and a schooner cannot be held in fault for a collision with a steamer in the night, because of her failure to exhibit such light, where her other lights werq burning brightly, and no necessity appeared therefor until after the time she was discovered by the steamer.</p> <p>2. Same — Violation op Rules by Steamer — Attempting to Cross Ahead op Schooner.</p> <p>On a dark but clear night a collision occurred between a steamship and a schooner, which approached each other on nearly parallel courses. The schooner saw the lights of the steamer when 5 or 6 miles distant, and from that time until very shortly before the collision her red light was visible, bearing about a point and a half on the schooner’s port bow. The schooner’s lights were burning, and, according to a preponderance of the evidence, were in good condition and not obscured, and her red light was seen and announced by the lookout on the steamer; and the first officer, on looking, made out the sails of the schooner nearly ahead, and about 1,800 feet distant. He at once ordered the helm hard a-starboard, and continued at full speed, and the collision followed a minute later. The schooner held her course. Held, that she was not in fault for failing to exhibit a flare-up light, but that the collision was due to the fault of the steamer, in failing to sooner discover the schooner, and, on discovering her, in attempting to cross her course, in direct violation of navigation rule 22.</p>

<p>1. Removal of Causes — Petition—Necessity of Verification.</p> <p>A petition for removal need not be verified, if made in good faith, and no objection was made in the state court, and a verification is unnecessary where all the facts shown by the petition which might bo controverted appear otherwise in the record.</p> <p>S. Same — Allegation of Nonresidence — Foreign Corporation.</p> <p>Where the pleadings of the plaintiff show the defendant to be a foreign corporation, the fact that it is a nonresident of the state is presumed under the law, and need not be alleged in a petition for removal.</p> <p>8. Same.</p> <p>The facts that the name of a corporation indicates that it is a corporation of a particular state, and that it owns property, carries on business, and maintains an office in such state, do not overcome the presumption that it is a nonresident of such state, and entitled as such to remove a suit against it by a citizen of the state, where the plaintiff’s pleadings show that it was incorporated in a foreign country.</p>

<p>In Equity. Suit for infringement of trade-mark and unfair competition. On motion for preliminary injunction.</p>

<p>1. Quieting Title — Parties.</p> <p>In a suit to quiet title to a tract of land claimed by complainant under one title, all persons claiming an interest in the land or any part thereof adversely to such title may be joined as defendants, and it is not essential that they should claim through a common source of title.</p> <p>2. Jurisdiction of Federal Court — Amount in Controversy — Suit to Quiet Title.</p> <p>To give a federal court jurisdiction of a suit to quiet title to a tract of land, in which a number of persons are joined as defendants, between whom no privity of title exists, and each of whom claims title to a separate part of the tract, the value of the property in controversy between each defendant and the complainant must exceed $2,000. 1</p>

<p>Equity — Mistake—Payment op Fund by Lienholder to Trustee in Bankruptcy.</p> <p>Where a hank, holding the note of a bankrupt and funds on deposit sufficient to satisfy the same, pays the entire fund over to the trustee in bankruptcy, through . oversight, without first satisfying the note, it is entitled to recover the amount of the note from the trustee in a court of equity, without first offering to satisfy the note or bringing it into court for cancellation.</p>

In Equity. Suit to enjoin the enforcement of ordinances passed by defendant city alleged to impair the obligation of contracts between the city and complainant, and for the enforcement of such contracts. On final hearing.

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

<p>1. Railroads — Negligence—Injury to Employe — Defective' Aiu’liances— Evidence.</p> <p>There being, evidence that the derailment of the train, by reason of which plaintiff was injured, was caused by the breaking of the flanges on tlie w'heels of the locomotive truck, and that the wheels, which were of cast iron, with chilled tires, were not made of reasonably safe material, liad become worn, and had not been properly inspected, the question, whether the wheels were of reasonably safe material and had been properly inspected was properly left to the jury.</p> <p>2. Trial — Instructions.</p> <p>Where the court instructs the jury that it is incumbent upon plaintiff to establish by proof the charges of negligence alleged in his petition, before he will he entitled to recover, and a more specific charge as to the burden of proof is not requested, defendant cannot complain that the jury were not instructed to find in its favor if plaintiff failed to prove by a preponderance of the testimony that defendant did not exercise due care.</p> <p>3. Same — Construction.</p> <p>In determining whether the trial court erred in instructing the jury, the entire charge on the point involved must be considered, and generally the charge must be taken as a whole.</p>

<p>L Bankruptcy — Discharge —Books of Account — Fraudulent Bookkeeping.</p> <p>Under Bankr. Act 1898, § 14, providing that a bankrupt shall not be entitled to a discharge if, with fraudulent intent to conceal his true financial condition, and in contemplation of bankruptcy, he has failed to keep books of account from which his true condition may be ascertained, a discharge will not be denied upon such ground where it appears that most of the bookkeeping in question was done before the bankrupt law was enacted, and it is not shown that it was in contemplation of bankruptcy.</p> <p>2. Same — False Oaths in Examination of Bankrupt.</p> <p>Knowingly and fraudulently making false oaths by a bankrupt in an examination under Bankr. Act 1898, § 7, requiring the bankrupt to submit to an examination concerning the conduct of his business and the cause of his bankruptcy, but providing that no testimony given by him on such examination shall be offered in evidence against him in any criminal proceeding, is not a ground for denying the bankrupt a discharge under sections 14 and 29 of the act, punishing the making of a false oath in, or in relation to, any proceeding in bankruptcy, and providing that a bankrupt shall not be entitled to a discharge if he has committed an offense punishable by imprisonment as therein provided.</p>

In .Bankruptcy. Action by Jennie M. Iiawk against Hale E. Hawk and John M. Cook, as trustee in bankruptcy, to- enjoin the distribution of a fund in the hands of the trustee in bankruptcy. A petition in this case was filed by Tennie M. Hawk, the wife of the defendant Hale D. Hawk, and John M. Cook as trustee in bankruptcy, on the 22d of May, 1900.

In Bankruptcy. The facts in this ease fire ¡is follows: Hamilton. McMillion & Co. were a firm of merclianls at Prescott, Ark. On tlie 15th of October, 1809, a petition in bankruptcy was filed against the firm, and on November loth following it was adjudicated a bankrupt. On filing tlie petition in bankruptcy, proper steps were taken, and the assets of tlie iirm were put into the hands of one White, as receiver.

<p>In. Bankruptcy. On question certified by the referee, — whether the claims of four laborers for wages earned within three months before the date of filing the petition in bankruptcy, respectively amounting to $41.47, $26.82, $25, and $29.28, all assigned to the claimant after the commencement of the proceedings in bankruptcy, are entitled to allowance as debts which have priority.</p>

<p>1. BANKRÜPTOY^PrEFERKNOi ■, l .,VABLE CLAIMS.</p> <p>Under Bailin'. Act la! „ .17, providing that “tlie claims of creditors who liave received proiVi cures shall not ho allowed unless such creditors shall surrender thou- proi. ronces,” a creditor cannot prove any claim against the lianki ■ "s ocíate, though it be a distinct and separate debt from tlie one prefería X, until he surrenders tlie preference lie lias obtained.</p> <p>2. Same — Petition bí • Creditor Holding Preference.</p> <p>Under Banlcr. Act 1898, § 59, providing that, where the whole number of creditors of ány person is less than 12, one of such creditors, whose claims equal Iho sum of $500, may file a petition to have him adjudged a bankrupt, boy ’uniting such right of petition to creditors only having “provable cbiiiis,” a creditor is not entitled to maintain such petition who within foiny uMitlis next preceding the filing of the petition has received payment ol/ a claim which is separate and distinct from that upon which the petit itiy is based.</p> <p>f 3. Same — Insola enoy — Evidence.</p> <p>Evidotfiee that an alleged bankrupt upon the filing of a petition in involuntary bankruptcy had assets that, cost over $30,000, while his liabilities amounted in the aggregate to less than $10.000, and that, after allirvlmi a reasonable discount for natural decay and wear and tear, the assets''are greater In amount, at a fair valuation, than the liabilities, is not Ridfieicnt to support the petition.</p>

<p>Patents — Infringement—-Cigar Cutters.</p> <p>The Phillippi patent, No. 398,345, for a cigar cutter, claims 1 and 2, if valid, must be limited to the mechanism shown and described in the drawings and specification. As so construed, held not infringed.</p>

<p>In Eepiity. thxit for infringement of a patent and a trade-mark. On motion for preliminary injunction.</p>

<p>Patents — Invention—Door Frames.</p> <p>The Boda patent, No. 385,233, for finishing of house interiors, as to claims 1, 2, and 3, which cover, as an article of manufacture, a completed . door frame made in two parts, to be joined together after they are placed in the wall opening, is void for lack of patentable invention.</p>

<p>1. Patents — Invention—Bed-Supporting Frame.</p> <p>The Palmer patent, No. 251,630, for a bed or mattress supporting frame, claim 1, is void for lack of invention and patentable novelty.</p> <p>2⅛ Same — Suit for Infringement — Estoppel.</p> <p>A release obtained by a stockholder in a corporation for past infringement of a patent in his personal business does not create an estoppel against the corporation which will prevent it from denying the validity of the patent.</p> <p>E. Same-Pleading.</p> <p>Where the complainant in a suit for infringement relies upon an estoppel of the defendant to make the defense of nonvalidity of the patent, he should plead such estoppel in his bill, by way of anticipation.</p>

<p>Collision— Liability — -Effect oí’ Failure to Keep Peopeb Lookout.</p> <p>A tug cannot be held liable to contribute to the damages caused by a collision in which her tow was injured, because of her failure to keep a proper lookout, where she was not otherwise in fault, and from the facts shown it appears that the omission in no manner contributed to the collision.</p>

<p>In Admiralty. Libels for collision.</p>

<p>In Admiralty. Suit for collision.</p>

In Equity. On motions to dissolve injunction awarded the plaintiff against the defendant, and to remand action at law to the state court.

In Equity. Suit by the interstate commerce commission against the Louisville & Nashville Railroad Company and others to enforce an order of the commission relating to rates charged by the defendant companies.

<p>In Equity. On intervening petition.</p>

<p>Injunction — Grounds—Threatening Suits for, Infringement of Patents.</p> <p>While the owner of a patent may lawfully warn others against infringement, and, by means of circulars or letters distributed among agents and customers of a manufacturer of goods claimed to infringe, give notice of his rights as he understands them, and of his intention to enforce them by suits, when done in good faith, the sending of such notices and circulars , in bad faith, and without any intention of bringing the suits therein threatened,, but solely for the purpose of destroying the business of such - ' manufacturer, constitutes a fraudulent invasion of property rights, against which the party injured is entitled to relief in equity by injunction.</p>

<p>Public Lands — Entry of Timber Claim — Application—Personal Examination of Land by Applicant Necessary.</p> <p>Under 20 Stat. 89, §§ 2, 3, requiring the applicant for the purchase of timber lands to make affidavit that the land is unfit for cultivation and valuable chiefly for timber, the applicant must have personally examined the land, so as to be able to make said affidavit from his personal knowledge.</p>

<p>1. New Triax. — Grounds—Instructions.</p> <p>A new trial will not be granted because of the inadvertent omission of the court to give an instruction requested, and to which the party was entitled, where no exception was taken to the omission, and it appears clear to the court that it did not affect the verdict.</p> <p>8. Same — Excessive Verdict — Damages for Wrongful Death.</p> <p>In an action for wrongful death, under a statute which authorizes the recovery of the full value of the life of the deceased, although such value must be ascertained by calculations from earning capacity and probable duration of life, it is still a matter largely resting, in the discretion of the jury, who are authorized to take into account the business capacity of the deceased, and other facts shown affecting his probable earnings; and a verdict will not be interfered with on account of its amount unless clearly insufficient or clearly excessive.</p>

<p>1. Depositions — Residence of Witness — Death—Motion to Suppress.</p> <p>Under Act Cong. March 9, 1892, providing that the deposition of a witness taken in the mode prescriued by the laws of the state where the action is pending, and under Rev. St. § 865, providing that, when a deposition has been properly taken, it may be used on the trial if the witness be dead, where the deposition of a -witness residing within 100 miles of the place where court is held is ,taken in a cause pending in the state court, in accord with the laws of the state, the deposition -will not be suppressed, upon removal of the cause to the federal court, on the ground of the witness residing within 100 miles of the place of holding court, if the witness he dead when the motion is made.</p> <p>2. Same — Notice of Taking — Service on Attorney for Foreign Insurance Company — Revocation of Appointment.</p> <p>After the appointment of H. as state agent and attorney to accept service for defendant had been revoked, and before another attorney to accept service had been appointed, plaintiff gave notice, to defendant, by service on H., for the taking of H.’s deposition. Held that, since defendant could not revoke the authority of its attorney to accept service without appointing another on whom service could he made, the deposition of II. could not he . oppressed for want of service on defendant.</p> <p>8. Life Insurance — Action on Policy — Evidence—Directing Verdict.</p> <p>The undisputed evidence showed that about four months before the death of plaintiff’s intestate defendant issued to him a policy of insurance upon his life, and transmitted it to its general agent for the state of Texas for delivery; that the deceased accepted the policy, hut by agreement the agent paid for him the first premium, and retained possession of the policy; that about 60 days thereafter defendant received the first semi- ■ annual premium, while deceased was in good health, and retained the same until advised of the death of intestate. Held, that the court properly instructed the jury to find for plaintiff.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>1. Bankruptcy — Involuntary Proceedings — Answer—Proof of Insolvency.</p> <p>Where, to a petition in proceedings in involuntary bankruptcy, a creditor answers, alleging that the alleged bankrupt is not insolvent, and the case is submitted on the pleadings, the allegations of the answer must be taken as true, and an adjudication of bankruptcy upon the pleadings is error.</p> <p>2, Same — Petition—Occupation of Debtor.</p> <p>Under Bankr. Act 1898, § 4, providing that any natural person, except a wage earner or a person engaged chiefly in farming, may be adjudged an involuntary bankrupt, a petition in involuntary bankruptcy which does not show the business of defendant, or that he does not come within the excepted classes, is subject to demurrer on such ground.</p> <p>& Same — Answer—Occupation of Debtor.</p> <p>Under Bankr. Act 1898, § 59f, providing that a creditor may file an answer and be heard in opposition to the prayer of the petition, an answer by a creditor to a petition in involuntary bankruptcy that the alleged debtor is “engaged chiefly in farming or the tillage of the soil” sets up a .good defense. .</p> <p>4. Same — Default of Defendant — Effect.</p> <p>The default of defendant to a petition in involuntary bankruptcy, through failure to appear, does not convert the proceeding into one of voluntary bankruptcy.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the 'Northern District of Illinois.</p> <p>This appeal is from an order of the district court, sitting in bankruptcy, in the matter of Frankenthal, Adler, and Freudenthal, bankrupts, entered on final hearing of the application of Joseph Freudenthal, one of the bankrupts, for a discharge, upon objections interposed by J. IP. Fellows, J. G. Archibald. W. II. Fellows, and George L. Hastings, appellants, as creditors of such bank-nipt. The testimony was heard by the referee, under an order of reference, and was submitted to the court with the findings of the referee and exceptions thereto. The order overrules the exceptions, in effect overrules the objections, grants the discharge, and requires that the appellants, as objecting creditors, pay the costs of the hearing, including the costs of the referee thereupon, taxed at $25. The grounds of objection to the discharge, although specified in various "forms, relate to an alleged interest in certain shares of stock omitted from the schedules filed by the bankrupt, and it is alleged that he “knowingly and fraudulently” made a false oath and a false account in the proceedings by such omission. The witnésses called in support of the objections were Joseph Freudenthal, the bankrupt, and Leo Fax, and their testimony shows that the shares of stock in question are 71- shares, of $100 each, of the capital stock of the Central House-Furnishing Company (an Illinois corporation, organized in November, 1895), which are held in the name of Jennie Freudenthal, the wife of the bankrupt; that for 59 of these shares Mrs. Freudenthal subscribed on the books of the company at the organization, personally paid the face amount in cash, and the shares were thereupon issued to her, and have ever since been held by her, and in her name; that she subsequently at various times took and paid for other shares, to the amount of 12, all constantly held in her name. The authorized capital stock of the corporation was 100 shares, of which 88 shares have been paid in and issued, and the remaining 12 shares are held as so-called treasury stock, earned on the books of the company in the name of Samuel Freudenthal, who appears as an original subscriber for such purpose. Albert Neuberger holds 16 shares of the issued stock, and the bankrupt holds 1 share, which he schedules. Aside from their relation,as husband and wife, no interest of the bankrupt is shown at any time in the shares held by Mrs. Freudenthal, unless it appears in one or both of the circumstances found by the referee in conformity with the undisputed testimony, relating (1) to the derivation of the means invested by Mrs. Freudenthal in this stock; and (2) to the participation of the bankrupt in the operations of the company. (1) In 1894 Mrs. Freudenthal borrowed from her mother, Lena Liebenstein, $3,000, and from her brother-in-law, Leo Fax, $2,500, which money she invested in the stock of a corporation called the Freudenthal Manufacturing Company; owning all the stock, except 1 share held by the bankrupt. Fax acted as the representative of Mrs. Liebenstein in arranging that loan, and in both instances paid the money to Mrs. Freudenthal; notes being taken, which were signed by her and by her husband as well. But Fax testifies that the husband had no other part or share in the transaction, was not given credit nor considered to be worthy of credit, and his name was taken upon the note for the reason'alone that it was supposed to be “necessary, in loaning money to a married woman, to have her husband join in the papers.” It further appears that the bankrupt failed in 1893, had no property, and was not engaged in business when this lgan was effected. Subsequently the business of this corporation was wound up, and Mrs. Freudenthal obtained repayment of a portion of her investment in its stock, and the proceeds thus received were applied by her in payment of the 59 shares in the Central House-Furnishing- Company, upon her original subscription. Whether the 12 shares afterwards taken by her were paid out of the proceeds of the business or otherwise is not definitely stated. The notes to Mrs. Liebenstein and Fax are outstanding and unpaid, but Mrs. Freudenthal has paid the interest, and both parties consented to her reinvestment in the stock of the new company. (2) The business of the Central House-Furnishing Company is that of “buying and selling goods upon the installment plan.” It was managed by the bankrupt, as president, and Neuberger, as secretary, — the latter being the only member having previous experience in its line, — and was profitable. The bankrupt received a salary, — $35 per week at one time, and later increased to $40, — and had no other share in the business, except his 1 share of stock, which was paid by his wife. No dividends were formally declared at any time, but amounts were drawn out from time to time out of earnings by Mrs. Freudenthal and by Neuberger, and charged, respectively, upon the books of the company; and money so drawn by Mrs. Freudenthal “was largely used by her in contributing to the support of their family.” The bankrupt filed with his petition a schedule of his property, which shows only wearing apparel, watch and chain, jewelry, and 1 share of stock in this corporation, of a total valuation of $260, and an affidavit by which be declares the “schedule to he a statement of all his estate, both real and personal, in accordance with the act of congress relating to bankruptcy”; and the petition is likewise verified in the usual form.</p>

<p>1. Bankruptcy — Prrfhrkncks—Ckebitor’s Knowledge of Debtor’s Insolvency.</p> <p>In determining whether the taking of security l)y a creditor constitutes an illegal preference, under Bankr. Act 1808, § 60b, tire creditor is not to be charged with knowledge of Ms debtor’s financial condition from mere nonpayment of his debt, or from circumstances which give rise to mere suspicion in Ms mind of possible insolvency. On the other hand, it is not essential that the creditor should have actual knowledge of, or belief in. his debtor’s insolvency, but it is sufficient if he has reasonable cause to believe him insolvent. If facis and circumstances with respect to the debtor’s financial condition are brought home to Mm such as would put an ordinarily prudent man upon inquiry, tlio credit or is chargeable with knowledge of the facts which such inquiry should reasonably be expected to disclose.</p> <p>2. Same — Review on Petition for Revision — Findings.</p> <p>A finding that a creditor of a bankrupt did not have reasonable ground to believe his debtor to be insolvent at the time he obtained security for his debt, is one of fact, rather than law, and cannot, therefore, be reviewed by tlic circuit court of appeals on a petition for revision filed under Bankr. Act 1898, § 24b.</p> <p>3. Same — Jurisdiction to Review on Petition.</p> <p>Query: Can the action of the court of bankruptcy be reviewed on original petition in cases where an appeal lies?</p>

<p>1. Bankruptcy--Disciiariíe op Bankrupt — Opposition—Objeotions'ey Ored 1TORS.</p> <p>Under Bankr. Act 1898. § 14b, providing that upon an application for a discharge the judge shall hear such proofs and pleas as may be made in opposition (.hereto, and discharge the applicant, unless he has committed an offense punishable by imprisonment as provided in said act, or witli fraudulent intent has destroyed, concealed, or failed to keep books of account from ivInch his true financial condition may be ascertained, specifications in opposition to a bankrupt’s, application for a discharge, and the proofs in support thereof, must distinctly allege and establish one or more of the above grounds for refusing to discharge.</p> <p>2. Same — Burden of Proof.</p> <p>T'pon the hearing of objections (o the discharge of a bankrupt, the burden of proof is upon the opposing creditors to establish their charge against the petitioner by satisfactory and sufficient evidence.</p> <p>S. Same — Fraudulent Conveyances--Evidence.</p> <p>Evidence that, more than 10 years before the enactment of the bankruptcy law, 1lio petitioner for a discharge in bankruptcy sold his business, for a. valuable consideration, to his wife, who thereafter employed her husband to manage and conduct the same for her, and that he took'therefrom from $200 to $300 per month for his personal expenses, is not sufficient to support an opposition to the discharge of a bankrupt, on the ground that said business is in fact the property of the bankrupt, and should have been included in his schedule of assets, where it appears that the validity of said transfer to the wife has been contested by the opposing creditor in tlie state courts, and a judgment rendered establishing its validity, and no additional facts or proceedings are adduced to bring the case within the provisions of the bankrupt act.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Proceedings before Referee — Review.</p> <p>General orders in bankruptcy, rule 27 (32 C. C. A. xxvii., 89 Fed. xi.), providing for a -‘review by the judge of any order made by the referee,” does not authorize a general review of proceedings before the referee, or of rulings not directly affecting a sale.</p> <p>2. Same.</p> <p>Specific questions arising in proceedings before a referee in bankruptcy, and upon -which the opinion of the district judge is desired, should he presented on the certificate of the referee, or, in the case of orders entered, on petition for review, and not in the form of an assignment of errors.</p> <p>3. Same — Corporation's—Act op Insolvency.</p> <p>A petition of involuntary bankruptcy against a corporation, which is based upon a confession of insolvency and (he willingness of the corporation to be adjudged a bankrupt, will not be construed as in effect voluntary, and therefore within (he exception which excludes corporations from the benefit of voluntary bankruptcy.</p> <p>4. Same -Sale "before Adjudication in Bankruptcy.</p> <p>Although the uniform practice is to make no order of sale of the bankrupt's estate until after the adjudication of bankruptcy unless a sale is necessary to preserve the value of the property, an order of sale made by a referee before the adjudication, while exercising the powers of the district judge under Bankr. Act, § 38, will not be disturbed, where the sale was made by consent, and no prejudice is shown.</p> <p>5. Same — Allowance op Claims — Rent.</p> <p>A landlord cannot complain that his general claim Cor rent is apportioned so as to make a part thereof a claim against (lie bankrupt's estate, and the balance a charge against tbe receiver, at tbe same rate at which the lease was running, when otherwise he would have been deprived of a preference for the part charged to the receiver.</p> <p>6. Same — Contested Claim — Creditor’s Riuht to Vote for Trustee.</p> <p>While the mere filing of objections to a claim should not exclude the . creditor from voting on the election of a trustee, such action by the referee will not be reviewed, when no objection is made!'to the election, and no facts are presented on which to raise the question of the rights of creditors in such case.</p> <p>7. Same — Action against Receiver — Leave oe Court.</p> <p>Leave of a referee in bankruptcy is not necessary to entitle the landlord of a receiver in bankruptcy to bring suit against the receiver for fixtures separated and removed from the demised premises during the receiver’s occupancy.</p> <p>8. Same — Attorney’s Fees.</p> <p>A receiver in bankruptcy being required to stand independent of the parties to the litigation, he will not be allowed to charge the estate for services rendered him by the attorney for either party during the continuance of such relation.</p>

<p>1. Bankruptcy — Sale of Partnership Property — Title of Trustee.</p> <p>The sale by one partner to his co-partner, when the firm has become insolvent, of his entire interest in the business and property of the firm, and the subsequent bona fide sale by the succeeding partner to a third person of the entire property of the firm, which in his hands was exempt, from execution, is not such a disposition of the property of the firm as can be avoided by the firm’s, trustee in bankruptcy, under Bankr. Act 1S98, § 70, providing that the trustee may avoid any transfer by the bankrupt of his property which any creditor might have avoided, unless he was a bona fide holder for value prior to the date of adjudication.</p> <p>3. Same — Preferences.</p> <p>The transferee under a sale by one partner to his co-partner of his entire interest in the property of the firm not being a creditor, and the effect of the transfer being a loss to all the creditors of the firm, such transfer cannot be impeached as a preference, under Banlcr. Act 1898, § 60, making any transfer by an insolvent debtor within four months preceding the filing of a'petition in bankruptcy a preference which may be avoided by me trustee of the bankrupt.</p>

<p>In Bankruptcy.</p> <p>Former proceedings pending.</p>

<p>1. Bankruptcy — Preferences—Renewal or Pledge.</p> <p>A pledge of property to secure notes executed within four months prior lo proceedings in bankruptcy against the pledgor is not voidable as an illegal preference under Bankr. Act 1898, where the notes so secured were renewals of prior notes also secured by a pledge of the same property; the original indebtedness having been created and the original pledge made prior to the four-montlis period.</p> <p>3.Pledge — Sufficiency of Description of Property.</p> <p>A description of property pledged by an iron company as “equity in iron in yawl #18. Rome, Ga.,” is sufficient, as it renders the iron capable of ready identification, and indicates (lie nature of the pledgor’s interest therein.</p> <p>3. Pleading — Demurrer—Construction of Whiting.</p> <p>On demurrer to a bill seeking to enforce a pledge evidenced by a writing which is set out, the terms of suc.h writing, if ambiguous, must, be construed in accordance with the allegations of the bill.</p> <p>4." Pledge — Kqittable Leen — ¡Sufficiency of Contract</p> <p>An indorsement on the back of notes that the equity of the maker in ceit a in property, which is sufficiently described to render it callable of identification, is pledged as security for the payment of the notes, is sufficient to create an equitable lieu in favor of the pledgee upon the pledgor's interest in the property, which, being a mere equity, was incapable of delivery.</p> <p>5. Equitable Lien — Spur to Enforce — Defenses.</p> <p>The right of a complainant to enforce a contiact as one creating an equitable lien, where it is not claimed that such contract constitutes a legal mortgage, cannot be affected by his failure to record it as a mortgage, as required by the laws of the state to render it enforceable against creditors or purchasers without notice.</p> <p>6. Bankruptcy — Equitable Liens on Estate — Title op Trustee.</p> <p>Except in cases affected by fraud or illegal preferences, a trustee In bankruptcy, under Bankr. Act 1898, takes only tbe interest of tbe bankrupt in tbe assets of tbe estate, and bolds sucb assets subject to all valid claims, bens, and equities enforceable against tbe bankrupt.</p>

The Sprague Electric Railway & Motor Company brought in the circuit court 'for the Eastern district of New Tork its bill in equity against the Nassau Electric Railroad Company, which was founded upon the alleged infringement of claims 2, 4, and G of letters patent 324,892, dated August 25, 1885, and issued to Frank ,T. Sprague for an improved electric railway motor.

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

<p>Appeal front tlie District Court of the United States for the Eastern District of Now York.</p>

<p>1. Jurisdiction op Federar Courts — Assignee op Ciiobí; in Action — Construction op Statute.</p> <p>Under tlie provision of section 1 of the judiciary act of 1887-88, that no federal court shall have cognizance of a suit to recover the contents of any promissory note or other chose in action “in favor of any assignee or any subsequent holder. * * ⅜ unless such suit might have been prosecuted in such court to recover the said contení s if no assignment or transfer had been made,” if the requisite diversity of citizenship existed between the original parties to a note or contract, and a suit between them might have been maintained thereon in a federal court, any subsequent assignee may maintain such action, provided he is also a resident of a state other than that in which the defendant resides; and it 1⅛ Immaterial that an intermediate assignee was a resident of the same stale.</p> <p>2. Sauk — Wiiat Constitutes an Assignment.</p> <p>A sale and conveyance under a decree of foreclosure of a waterworks plant, together with the rights of all the parties in the franchise and contract under which it was constructed, does not operate merely as an assignment of the contract, within the meaning of the provision of the judiciary act of 1887-88, which denies to federal courts jurisdiction of a suit by an assignee on a chose in action where such suit could not have been maintained if no assignment or transfer had been made; and such provision does not affect the right of the purchaser to maintain a suit in a federal court to enforce rights under such contract, where the requisite diversity of citizenship exists between the parties. In such case the conveyance vests the purchaser with rights in real property, to the full enjoyment of which the enforcement of the contract is a necessary incident.</p>

<p>L Removal of Causes — Sep arable Controversy.</p> <p>An action in tort against two defendants to charge them with liability on the ground of the negligence of servants employed by them jointly, does not involve a separable controversy, so as to be removable by one defendant alone, 1</p> <p>2, Same-Suit against Federal Receiver — Joinder with Co-Defendant.</p> <p>The real ground supporting the right of a receiver appointed by a federal court for a state corporation to remove a suit commenced against him in a state court appears to be the ancillary nature of such suit, and not that it is one arising under the constitution or laws of the United States, and the jurisdiction of the federal court rests ultimately upon the diversity of citizenship between the parties to the suit in which the receiver was appointed. Such being the case, where such a receiver is properly joined in the state court with a co-defendant who has no right of removal, and the suit does not involve a separable controversy, it cannot be removed by the receiver.</p> <p>NOTE BY THE COURT. Since the delivering of this opinion the decision of the supreme court in the case of Railway Co. v. Martin, made May 21, 1900, has appeared, which seems fully to support the conclusions reached in this case. 178 U. S. 245, 20 Sup. Ct. 854, Adv. S. U. S. 854, 44 L. Ed. —.</p>

<p>.1. Banks — Receiving Deposit when Insolvent — Ownership of Monet Deposited.</p> <p>, When a bank receives a deposit after hopeless insolvency, the fraud avoids the implied contract between the p.arties by which the relation of debtor and creditor would ordinarily arise, and prevents the money deposited from becoming the property of the bank, and a trust is the equitable result.</p> <p>2. Same — Recovery from Receiver — Tracing Money Deposited.</p> <p>Where a bank receives a deposit on the day of its suspension, when it is known by its officers to be insolvent, and mingles the money with its own funds, which, to an amount larger than the deposit, pass into tlio liands of a receiver, it is not essential to the right of the depositor to recover his deposit from the receiver that he should he able to trace the identical money deposited inio the receiver’s hands, but it is sufficient that the amount which went into his hands was increased by the amount of the deposit.</p>

The bill in this cause was filed in the circuit court of the United States for the Eastern district of Louisiana by the New Orleans Coffee Company. Limited, a. Louisiana corporation, against Frank L. Richardson, as receiver of the American National Bank, a banking' corporation organized under the laws of the United Stales. It is shown by the bill that Richardson had been appointed receiver of the bank by the comptroller of the currency of the United Slates.

<p>Equity Jurisdiction — Suit by Receiver against Stockholders — Multiplicity op Suits.</p> <p>Equity is without jurisdiction of a suit by the receiver of an insolvent corporation against numerous stockholders to recover an additional liability imposed bj' statute, on the single ground that a multitude of actions at law will thereby be avoided, where the amount of the assessment has been previously adjudicated in a general suit, and has been fixed at the-full amount of the statutory liability, since no question remains in which the defendants have a common interest, and the suit is merely an aggregation of separate suits, each involving separate issues and having little relation to each other, except that there is a common plaintiff, and in each of which the remedy at law is adequate.</p>

Tlie complainants, who are citizens of the state of New York, are shareholders in the Southern Express Company, a. Georgia corporation, which… Held: by the commission to be payable by the company, and that the company was then observing the Georgia railroad commission’s rates on intrastate business in Georgia, and was as to such business paying the amount of the war revenue tax, without charging the same to the shipper, or endeavoring to collect the same from the shipper.

<p>1. Appeal — Time for Taking — Rehearing.</p> <p>Where a circuit or district court permits the filing of a petition for rehearing during the term at which the order or decree sought to he reviewed was entered, it retains jurisdiction to act upon such petition at a succeeding term, and the time for appeal does not begin to run until such action is taken.</p> <p>2. Bankruptcy — Revision by Circoit Court of Appeals — Time for Filing Petition.</p> <p>A petition for revision of the proceedings of a court of bankruptcy in matter of law, under Bankr. Act 1898, § 24b, may be filed in the circuit court of appeals at any time within six months from the ruling, order, or decree sought to be revised.</p> <p>3. Same — Review of Orders — Procedure.</p> <p>A party who is in doubt as to his right of appeal from an order In bankruptcy may, in addition to taking an appeal, file a petition for revision, under section 24b of the bankruptcy act; and the circuit court of appeals may determine the matters complained of in either or both proceedings, as it shall determine to be appropriate.</p> <p>. ,4. Same.</p> <p>Congress having specifically provided, in Bankr. Act 1898, § 25, for an appeal with reference to proofs of debts exceeding $500, on which appeal all questions are open to the appellate tribunal, and having also provided (section 24b) that, for all matters of administration which concern the . relations to each, other of the different interests in the estate, the action of the bankruptcy court shall be revised only in matters of law, the courts are not at liberty to disregard the distinction so created; and, where an order allowing the proving of a claim also determines its priority, the former part of the order is appealable, but the latter part can only be reviewed on a petition for revision.</p> <p>5. Same — Pakty Entitled to Prove Deist — Actual Owner.</p> <p>A county owning an account against a bankrupt, for which a note was taken prior to the bankruptcy, payable to another, but for the use of the county, may prove the debt against the bankrupt in its own name, as the actual owner either by claiming and proving the note, or surrendering it and proving the account.</p> <p>6. Same — Priority op Claim — Effect op Taking Note.</p> <p>Taking a note does not discharge an original debt having any privileges under the bankruptcy law, and either may be proved.</p> <p>7. Municipal Corporations — Contracts—Validity.</p> <p>The violation of statutory provisions in regard to the mode of making contracts by counties, designed for tlioir protection, may be waived by a county, and cannot be urged by the other party to defeat the contract.</p> <p>8. Bankruptcy — Claims in Favor op County — Right to Priority.</p> <p>Under Rankr. Act 1808, § 64, providing for priority of payment of “debts owing to any persons who by the laws of the state or the United States are entitled to priority,” and the provision of section 1 that “persons shall include corporations except when otherwise specified” a county-in Massachusetts, which by the insolvency laws of the state (Pub. St. c. 157, § 104) is made a preferred creditor of an insolvent, is entitled to priority as to a claim due the county from a bankiupt.</p> <p>9. Same — Effect op Act on State — Insolvency Laws.</p> <p>The insolvency laws of a state wore not annulled by the bankruptcy law, but continue operative, although within a limited range.</p> <p>10. Same — Deists Due County — Claim for Prison Labor.</p> <p>Under the General Statutes of Massachusetts, which provide that houses of correction shall be built, equipped, and maintained by the several counties, and by which the county makes direct and specific payment for every article of every nature used in connection with the industries carried on in the house of correction which are to be established by the county commissioners, and receives all proceeds of the labor and earnings of the prisoners, the master, who Is a deputy sheriff, being required to deposit such proceeds as trustee, and pay the same at stated intervals into the county treasury, a claim for the labor of prisoners in sueb a bouse of correction is a debt due the county, within the meaning of Pub. St. c. 157, § 104, which gives such debts priority against the estates of insolvents, and such a claim may he proved by the county, as owner in bankruptcy, and is entitled to priority, under Bankr. Act 1898, § 64.</p>

<p>1. Mining Lease — Forfeiture—Construction of Contract.</p> <p>A lease of lands for oil and gas purposes provided that same should be void if a well was not completed on the premises by lessee within two months from the date thereof, unless the lessee should thereafter pay monthly to the lessor $10 for each month’s delay in completing said well. It was further provided that, if operations upon the well were not commenced in 30 days from the date of the lease, $10 extra should be paid for the second month. Work on the well was not commenced for over a month after the date of the lease, nor complete within 2 months and 8 days. After the expiration of the second month, the lessee paid the lessor the sum of $10, and again, 12 days after the expiration of the third month, the lessor tendered a similar payment, which was refused. Held, that the first $10 payment by the lessee could not be claimed by the lessor as on account of the money to be paid extra for the second month, and that a ' lease made by the lessor to another party after the expiration of the third month, and when the well had not been completed, under the claim 1hat the first lease had been forfeited for nonpayment of the sum agreed to be paid for delay, was void.</p> <p>2. Same — Performance by Lessee.</p> <p>The payments to be made “for each month’s delay in completing said well” not being made payable in advance by the terms of the lease, the lessor was not entitled to claim a forfeiture of the lease five days after the close of the third month, because the well was not then completed, and the lessee had failed to make payment for delay for the fourth month.</p> <p>3. Same — Waiver of Performance.</p> <p>The lessor having permitted the lessee to locate a well under the lease, and himself constructed a dam to obtain water with which to drill it, sold and delivered wood for fuel to the contractor employed by the lessee to drill the well, and lodged and fed the men who were doing the work, after three months from the date of the lease had expired, and down to the Tory day that he made a new lease to another party, thus inducing the lessee and those claiming under him to believe that he was satislied with their efforts at development, and that it was not his intention to claim &, forfeiture, he will not be permitted, in equity, to insist that the first lease was forfeited at the time the second was executed, even though grounds to declare a forfeiture existed.</p>

<p>1. RAILROADS -CONSTRUCTION OF LEASE — DIVISION OF EARNINGS.</p> <p>A provision of a lease, by which one railroad company leased its road to another, that the lessee “shall, in each and every year of the term demised, pay or cause to be paid to said [lessor], in the manner and at the times hereinafter specified, thirty per centum of the gross earnings of the demised property,” is not one for the payment of rental, but for the division of the earnings of the property, as earnings; and under it 80 per cent, of such earnings become, in equity, the property of the lessor at once on their receipt, being held by the lessee in trust for the purpose specified in the lease.</p> <p>2. Same —Lessor’s Shake of Earnings — Right to Recover as Trust Fund.</p> <p>The lessee in such lease having failed for six months before the time its property w.ent into the hands of a receiver to pay over the lessor’s share of the earnings of the leased road, and having mingled the same with its own funds, bondholders of the lessor, the interest on whoso bonds the lessee was required by the terms of the lease to pay from such funds, were entitled to have the amount so misapplied to the benefit of tho lessee restored by the' receiver from the subsequent earnings of the leased road under the receivership, and paid to them in accordance with the contract, as against the lessee company or its bondholders or general creditors; and it is immaterial that the lessee may have operated tho road at a loss.</p> <p>8. Same — Lease Ultra Vires — Effect of Curative Statute.</p> <p>A lease by a railroad company of a line of road in another state, although unauthorized when made by the company’s articles of incorporation or by statute, is rendered valid as to the future by an act of the legislature subsequently passed conferring such authority, where the company continues for years thereafter to operate the road thereunder, and thereby impliedly readopts the contract.</p> <p>4. Statute — Constitutionality—Special Laws.</p> <p>The Indiana act of February 20, 1803, legalizing all leases theretofore made within a specified time by any railroad company of the state authorized to construct and operate a railroad to its western boundary, by which such company contracted to operate the road of an Illinois company authorized to construct and operate a road to such boundary, is not in contravention of article 4, § 28, of the state constitution, which-provides that laws shall be general and of uniform operation in all cases whore a general law can be made applicable.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p> <p>The following statement, taken from the briefs of counsel, is substantially correct:</p> <p>In 1886 Franklin H. Whitney, the assignor of defendant in error, purchased the S. ⅛ of lot 10, block 101, in Birmingham, Ala. One Elliott was then tenant under Whitney’s vendor, and became Whitney’s tenant, paying him rent after his purchase. About November, 18S6, Elliott transferred his leasfe to the plaintiff in error, which was then doing business in Birmingham under the assumed name and style of James B. Hopkins & Co., and none other: the business 'being carried on entirely by one James B. Hopkins, as general manager and vice principal for the plaintiff in error, itself a Tennesson corporation, located and doing its chief business in Nashville, Tenn. 1’rom November, 1880, to October, 1888, the plaintiff in error, under its assumed name of James B. Hopkins & Co., continued to pay rents under ISlliotfs uuexpired lease to Whitney, who knew the concern only by its,fictitious name, and had dealings only with James B. Hopkins. On the 25th of August, 1888, after occupying Whit-nej's premises nearly two years, the plaintiff in error, still calling itself James B. Hopkins & Co., and still acting and doing business in Birmingham altogether by and under that name alone, and through the said James h. Hopkins only, .who uas clothed by the plaintiff in error with full authority to execute a, lease and notes, and was the sole party known to Whitney in the matter, rented the same property front the same landlord for a term of three years, ending October 1. 1X91, at ¡¡¡123 monthly, or ,81.300 per annum, and executed, by signing the same fictitious name, a lease, and ,‘¡0 notes of ¡¡¡125 each for the rent. Under the same name, and by drafts of the same. James B. Hopkins, it paid most of those rent notes; but those for the last few months were paid under a new assumed nanus of Hopkins Stove & Booling Company, and some notes through one Frank Hopkins. Early in January, 1801, the defendant’s then manager, one Frank Hopkins, proposed to Whitney, who still knew nothing of plaintiff in error's connection with the concern, to rent the premises for five years from October 1, 1801. The plaintiff iu error claims that these negotiations for a, new lease were unauthorized, and in fact forbidden, by it, but, if so, Whitney know nothing of it, and it is not pretended that he did. The negotiations wont on. at first through Frank Hopkins, and later through his successor, James B. Hopkins. Whitney making expensive repairs and improvements in view and consideration of the proposed renting and lease, which was actually made and executed on August 19, 1891, for the plaintiff iu error by the same James !’. Hopkins, iis manager or vice principal, who signed duplicate leases and 00 rent notes, mentioned and described in die lease, for ¡¡¡130 each, in the third fictitious name, recently assumed, under which the plaintiff in error was then doing business on the premises leased from Whitney, namely, “Hopkins Stove & Tinware Company, J. B. II., Han’g’r.” These 60 notes were to mature monthly, beginning on November 1, 1891. The plaintiff in error continued its business on the same premises, with Jamos B. Hopkins still its manager and vice principal; the home officials of the plaintiff in error knowing this, and coming frequently from Nashville and exercising active oversight of the business, but mukiug no objections as to the last lease, and not even, as they pio-i'ess, asking about it. Of this supervision, however, the landlord, Whitney, living several hundred miles away, was entirely ignorant. The rent notes for the promises up to February 1, 1892, were promptly paid by plaintiff in error, still through drafts drawn by said Jarnos- B. Hopkins. The fifth note was paid in part only; the rest of it not being exacted, because of a fire in the building, rendering it untenantable, on the 12th of February, 1892, for which reason, also, the sixth and a part of the seventh rent notes were not attempted to be collected. The tire above mentioned, on February 12, 1892, rendered the leased premises untenantable. While Whitney’s building on the rented promises was still burning, the plaintiff in error notified him by telegraph of the tire, demanding cancellation of the lease and answer by wire. Whitney refused to cancel the lease, and informed the plaintiff in error that ho would repair the building and hold it to its contract. lie did so repair it, in proper manner and with reasonable diligence, and at once tendered the building to the plaintiff in error, who refused’to receive or occupy it: setting up as a pretext that the fire of February 12th had itself canceled the lease, according to its own ferms. By agreement of parties, llie leased premises were to be rented out by W. B. Needy & Go., and the rents to be paid to F. TI. Whitney, for the benefit of the party entitled, without, prejudice, however, to the rights of either party. This has been done. After the maturity of the eighteenth of the series of 60 rent notes, in 1893, Whitney brought suit on all those due and unpaid, back io and including the seventh, in the city court of Birmingham. The cause was tried by the judge of the court, without a jury, both as to Issues of fact and law, and resulted in a judgment for Whitney. As indicated by the record, almost every conceivable issue was raised by the defendant there (plaintiff in error here). The general issue was pleaded, denying all the material allegations of Whitney’s complaint. The execution by the defendant itself of both the ¿otes and lease sued on, and the authority of James B. Hopkins to make them, were denied by sworn pleas, which were met and overcome. Unlawful eviction by the landlord pending the lease was set -up as a defense; also, that the lease was annulled by the temporary untenantable condition of the leased premises, occasioned by the fire of February 12, 1892. All these issues, and all others involved in them, were determined after a trial upon the merits, both in law and in fact, in favor of Whitney, first in the city court of Birmingham, and afterwards on appeal to the supreme court of Alabama, which itself passed upon all the issues in the case of every kind, both of fact and law, and in ah things affirmed the findings and judgment of the court below. See Manufacturing Co. v. Whitney, 109 Ala. 645, 20 South. 333.</p> <p>On the 29th of September, 1896, F. H. Whitney, residing at Atlantic, Cass county, Iowa, executed, with his wife, a voluntary trust deed of general assignment for the benefit of all his creditors equally, conveying to James B. Bruff, as trustee and assignee, all his property, both real and personal, except such as was exempt from execution in the state of Iowa, and expressly his “personal property, wheresoever situated.” This trust deed was duly authenticated, filed, and recorded, under the laws of the state of Iowa, where both the as-' signor and the assignee resided, at Atlantic, in Cass county. The assignee, Bruff, in October, 1896, qualified, filed his inventories, and was placed in full possession and control of the trust estate, including the notes and lease now sued on in this action, and they were held by him in his possession and control when this suit was brought. The real property of the assignor, Whitney, in Alabama, for rents of which said lease and notes were executed, was also conveyed at the same time to his assignee, Bruff, for the same purpose, and the conveyance, duly executed, was filed and recorded in Jefferson county, Alabama. On the 11th of October, 1896, F. H. Whitney died, leaving a will, in which his son James G. Whitney is named sole executor, with very ample pow-érs, and relieved from giving bond as such.</p> <p>On the 2d of October, 1897, the said James B. Bruff, as assignee of F. H. Whitney, and the owner of the remaining 42 rent notes and the lease executed on'August 19, 1891, brought this action thereon by summons and complaint, the latter counting on the said notes and the said lease, and in two- common counts against the plaintiff in error, who removed the cause into the United States circuit court at Birmingham. In that court the plaintiff in error first filed on November 26, 1897, 17 demurrers to the complaint, of which the first 8 áre omitted from the record. All these were overruled, except one (No. 13), for misjoinder of causes of action in the first count. This misjoinder was cured November 29, 1898, by amendment. On January 24, 1899, the plaintiff in error increased its demurrers, by^additions -or repetitions, to 32. On the next day, January 25, 1899,' the plaintiff in error filed 15 pleas to the complaint, of which the last 9 are not in the record. To these pleas the defendant in error filed a number of replications on April 1, 1899. And, with the pleadings in this condition, the depositions of James B. Bruff and James G. Whitney were regularly taken and certified under a commission for the purpose issued from the court below. The cause coming ori for trial on the 12th of December, 1899, the court below permitted the plaintiff in error to withdraw its pleas and refile its 32 former demurrers, and increase the number 12 more by additions or repetitions, — to 44 in all. These were all then overruled. The plaintiff in error then moved the court below to strike out counts 1 and 2 of defendant in error’s complaint. This motion was denied. The plaintiff in error then moved the court below to require the defendant in error to elect upon which of the said counts he would proceed. This the court refused. The plaintiff in error then refiled its 15 pleas, of which only 7 appear in the record, and enlarged the number by amendment to 19. To all these the defendant in error refiled its replication. To these the plaintiff in error filed 10 demurrers, — about the same with the 44 filed to the complaint. These were all overruled. The plaintiff in error then filed 4 rejoinders to the replication. None of the 19 pleas or of the 4 rejoinders was verified by affidavit. And thus the case went to the jury. The plaintiff in error introduced the 42 notes for $150, sued on, and described in the first count of the complaint, and therein alleged to have been executed August 19, 189.1, by the plaintiff in error, which was then a corporation doing business in Birmingham under the name of Hopkins Stove & Tinware Company, by signing them, “Hopkins Stove & Tinware Co., J. B. H., Man’gT,” and which were also averred expressly to be unpaid, and the property of the defendant in error, as the assignee of F. H."'Whitney, in which character, as plaintiff, he was prosecuting the action. The court below allowed the introduction of these notes, against many objections, which were overruled. The defendant in error then introduced in evidence, against objections which were overruled, the complete record in the cause of Manufacturing Co. v. Whitney, from the supreme court of Alabama, containing all the pleadings, testimony, opinion, and judgment therein. The opinion shows the issues, conclusions of law, and findings of fact in that cause. The defendant in error then offered in evidence the lease described and sued on in the second count of his complaint, and therein alleged to have been executed August 19, 1891, by the plaintiff in error, then doing business in Birmingham, Ala., under the name and style of Hopkins Stove & Tinware Company, by signing the same, “Hopkins Stove & Tinware Company, J. B. H„ Man’g’r,” and later proved that the rents under said lease from April 1,1893, to October I, 1896, at $150 per month, were due and unpaid, and the property of the defendant in error. The court below allowed the said lease to be introduced, against the objections of the plaintiff In error. Tbo plaintiff in error then offered in evidence, without objection, the statutes of Iowa, the state of the domicile of F. II. Whitney and James B. Bruff, and also of James G. Whitney, the defendant in error, declaring the effect of 1rust deeds of assignment for creditors, and the rights, title, duties, and powers of trustees or assignees under voluntary deeds of general assignment. It was admitted that the district courts in the state of Iowa, have original and general jurisdiction in all matters both of law and equity, including wills and estates, assignments, trusts, and trustees. The legal rate of Interest in Iowa was agreed to be 6 per cent. Without objection, tlie agreement of April 25, 1892, executed by the plaintiff in error under the name of “Hopkins Stove & Tinware Co., per J. B. Hopkins,” and by Franklin H. Whitney, by Garrett & Underwood, his attorneys, was admitted in evidence; and. further, it was admitted that plaintiff in error had received the benefits thereof up to April 1, 1893, and in the settlement of the judgment recovered by F. H. Whitney against the Phillips & Buttorff Manufacturing Company in the city court of Birmingham. The defendant in error introduced oral testimony that none of the notes sued on have ever been paid; that the only subscribing witness to tbe lease in Alabama (Dr. J. B. Vann) has been dead for years; that he appeared in the city court of Birmingham on the trial of the cause of F. H. Whitney against the Phillips & Buttorff Manufacturing Company, and testified to liis a (.test a lion of tho lease l'or five years, dated August 19, 1891, and (hat lie was a witness to the signature of the lease, which was the signature of Mr. James B. Hopkins, manager of the Hopkins Stove & Tinware Company; and that all tlie 60 notes, including the 42 now sued on and offered in evidence, were signed in his presence. The signatures to these notes were also proved directly by W. B. Leedy to be in the handwriting of James B. Hopkins, the general manager and vice principal of defendant in error. This testimony was admitted by the court notwithstanding objections by the plaintiff in error, the depositions of James B. Bruff, tho legal counsel and assignee of F. H. Whitney, and an attesting witness to his will, and James G. Whitney, of Atlantic, Iowa, the son and sole executor of F. H. Whitney, and his partner in the banking business, taken under a commission from the court below, together with the exhibits thereto, which appear in the record. The court below, on objection by the plaintiff in error, suppressed some small parts of these depositions, but these are not shown in the record. These depositions establish fully that Franklin H. Whitney (known as F. H. Whitney) was a resident of Atlantic, Cass county, Iowa, on the 29th of September, 1896; that he then made a trust deed of general assignment 1o James B. Bruff, which is shown in the record, for the equal benefit of all his creditors; that this deed was duly executed and recorded; that the assignee, Bruff, duly qualified, made bond, and entered upon his duties as such; that all the property, real and personal, of F. EL Whitney, including the notes and lease sued on, were turned over to him an trustee under the assignment, and that neither F. H. Whitney in his lifetime, nor his executor since his death, has ever made or set up any claim to the lease and notes sued on since September*29, 1896; that James B. Bruff, as assignee of said F. H. Whitney, was in possession and control, by his attorneys, of the lease and 42 notes sued on when he brought suit thereon in this action on the 2d of* October, 1897; that said notes given for rents due under said lease were then unpaid, and so remain; that about the 18th of March, 1898, said James B. BrufE, assignee, settled his trusts as assignee of F. H. Whitney, resigned, and was discharged as such, after turning over all the trust property remaining in his hands to his successor, James G. Whitney, the defendant in error, who had been duly appointed his successor as assignee, all of which was regularly done in the district court of Oass county, in the state of Iowa, which is shown to have had original, full, and general jurisdiction of the subject-matter and parties on the premises. It was agreed that the amount due upon the notes and lease sued on, if the defendant in error was entitled to recover, with interest computed, at 8 per cent., loss rents collected, and credited with interest at S per cent, under agreement of April 25, 1892, with the agreed attorney’s fee of $000, would be altogether 80,635.72.</p> <p>The plaintiff in error, as already stated, offered no testimony, but asked permission to verify its 19 pleas, which the court below refused. The plaintiff in error then asked the court to give the general charge on the evidence in its favor on each of the five counts of the complaint, each of which the court refused. The plaintiff in error asked four other charges, as to whether the lease and notes sued on were Iowa or Alabama contracts, and whether the rate of interest on them was 6 per cent, or 8 per cent., all of which the court refused. Tire defendant in error then asked the court, in writing, to charge the jury, if they believed the evidence, they must find for the plaintiff below (the defendant in error here). The court gave this charge, and the jury returned a verdict for the defendant in error for $6,035.72. The plaintiff in error now assigns SO errors in the action of the court below.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Florida.</p> <p>This action was brought by Joseph H. Durlcoe, as receiver of the Jacksonville, Tampa & Key West Railway, against the National Bank of the State of Florida, to recover $28,059.37. The declaration contained three counts. It was alleged in each count that Robert B. Cable had been first appointed receiver; that the order appointing him had been vacated, and Mason Young appointed; that Young, as such receiver, had deposited with the defendant bank the moneys sued for; that Young had been discharged as receiver, and ordered' to pay over all mdneys held by him to his successor; and that the plaintiff was entitled to the money under this order. In .the first count it was alleged that on the 7th day of April, 1893, the defendant had in its possession $28,059.37 arising from the operation and earnings of the property, and deposited by Young as receiver, which sum Young, as receiver, directed the defendant to pay over to Cable as receiver, which the defendant refused to do. In the second count it was alleged that on the 8th day of April, 1893, the defendant had in its possession $28,059.37 arising from the operation and earnings of the property, and deposited by Young as receiver; that on the same day Young made and delivered to Cable, as receivei’, a certain check, draft, or order in writing, wliereby he directed the defendant to pay to the order of Cable, as receiver, the sum of $28,059.37, which check, draft, or order Cable, as receiver, caused to be presented for payment, and the defendant refused to pay it. In the third count it was alleged that during such period of’ Young’s receivership he deposited, as receiver, funds and moneys arising from tlie operation and earnings of the property with the defendant, which funds were placed by the defendant to the credit of Young as receiver, and that when the receiver was discharged the defendant was indebted to the receiver in the sum of $28,059.37, which sum was due from the defendant to the receiver on account of the funds and moneys deposited by the receiver with the defendant, which sum of money, by reason of tho aforesaid orders of the court, became due to Cable, and the plaintiff, having been appointed receiver of the property, became entitled to receive from the defendant the sum of $28,059.37.</p> <p>The pleas on which the case was tried presented, among other defenses, the following: That the defendant was never indebted as alleged; that tho defendant did not have in its possession on the 7th day of April, 1893, or at any subsequent day previous to the bringing of this suit, the sum of $28,059.37, or any sum, deposited with it by Mason Young as receiver; that each and every deposit of money set up in the plaintiff’s declaration was made by Young in the usual course of business with the defendant, and made as a general deposit, and not as a special deposit, and that said general deposit had been drawn against and exhausted; that on April 8, 1893, the defendant had paid checks of Young to the amount of $73,810.81, and that sum was all the said Young had on that day on deposit with the defendant; and that Young since that day had deposited no money or fund with the defendant.</p> <p>It was stipulated and agreed by the parties that a jury in the ease be waived, and that the case be heard and determined upon -all the facts liy the court without a jury. The court (the Honorable James IV. Locke presiding) made a special finding of the facts and the law as follows:</p> <p>“This cause coming on to be heard by the court, a jury being waived by a stipulation of the parties in writing, and having been fully heard and considered, the court finds as matters of fact in this cause as follows; That tho American Construction Company, a stockholder of the Jacksonville, Tampa & Key West Railway Company, filed its lull in this court on July 6, 1892, against the said railway company, praying discovery as to the financial affairs of the company, for an accounting, and for the appointment of a receiver. This bill alleged the execution and acceptance of first’ mortgages made by the railway company to the Mercantile Trust Company as trustee, amounting to $2,210,000. and the execution on May 5, 1890, of a second mortgage h.r said railway company to the Pennsylvania Company for Insurance of Lives & Granting Annuities, as trustees, for $4,000,000. known as the ‘Consolidated Mortgage.’ That the said, railway company had issued another set of bonds, amounting to ■$3,592,000, known as the ‘Consolidated Trust Bonds,’ for the .purchase of the. stock and bonds of the Florida-Southern Railway-Company and the St.- Johns & Eustis Railway Company, hut which were not made a lien on tho prop- ■ erty of the Jacksonville, Tampa & Key West Railway Company covered by the above-mentioned mortgages, but were seemed by a mortgage on the stock and bonds so purchased. The Mercantile Trust Company and the Pennsylvania Company, as trustees of the first and second mortgages covering the said railway property, were not made parties to said suit. That on July 23, 1892, rlie Pennsylvania Company, as trustee for the second mortgage, filed its bill in this court against the Jacksonville, Tampa & Key West Railway Company to foreclose its mortgage; alleging the execution of said mortgage. the issue of bonds thereunder, default therein, and conditions broken, and praying the appointment of a receiver, and the sequestration of the income and earnings of the mortgaged property, — the same being covered by said mortgage1. That on said day Robert B. Cable was appointed said receiver of said railway property and its income and earnings. That on August 4, 1892, an order was made in this suit removing Cable as receiver, and the proceedings in said suit were stayed until further order of the court, and on the same day Mason Young was appointed receiver in the suit of the American Construction Company against said railway company. That on August C, 3892, Mason young, as receiver, filed his petition in the said suit of the American Construction Company, alleging Unit the Jacksonville, Tampa & Key West Railway Company had purchased the Florida Southern Railway Company and issued collateral trust bonds therefor, and that there was due thereon interest to the amount of $73,500; that certain other interest charges were due, and that certain notes of the said railway company, the amounts of which were unknown to said receiver, were due and outstanding, which said receiver might be able to renew. That said receiver did not have funds sufficient to meet said obliga! ions, and asked permission to borrow different amounts, giving receiver’s notes therefor, not to exceed ,8125,000. That the court made an order on the same day authorizing the receiver to pay such interest and obligations as might be, due and payable by said railway company, to make renewals of said obligations, the same to be paid out of the incomes of the property or from any moneys in the hands of said receiver, and, if the same should not be sufficient, to issue receiver’s notes in payment of said interest obligations, or, in the discretion of said receiver, to borrow money on receiver’s notes to pay the same; the amount of said notes outstanding at any one time not to exceed $125,000. That notice of said application was served only upon II. Risbee. solicitor of the American Construction Company, and T. M. Ray, Jr., counsel for the Jacksonville, Tampa & Key West Railway Company. That on August 10. 1892, said receiver borrowed money from the defendant bank amounting to $38,000, giving therefor three (3) notes, for $12,000.07 each, in favor of D. G. Ambler, president of said bank, signed, ‘Jacksonville, Tampa & Key West Railway Company. Mason Young, Receiver,’ due three, four, and five months after date, which amount, less the discount thereon, was credited on the defendant’s books to the account of Mason Young, receiver. That on the same day the defendant bank issued its New' York draft, payable to the American Loan & Trust Company, for $30,000, and charged the same to tire account of Mason Young, receiver, for which amount said receiver gave his check upon said bank, payable to T. R. Denham, defendant’s cashier. That this $30,000 was used to pay interest due on the collateral trust bonds mentioned in the receiver’s petition fof authority to make notes. That the defendant bank did not know for what purpose this draft was to be used. That on or about September 27. 1892, Mason Young, as receiver, began depositing funds with the defendant bank, which deposits were credited on the bank books to the •Jacksonville, Tampa and Key West Railway Company, Mason Young, Receiver,’ and continued to make such deposits until the date of his discharge. That these moneys so deposited were from the proceeds of the notes herein-before slated, and from the current income and earnings of the Jacksonville, Tampa & Key West Railway Company, of which fact the defendant is presumed to have had knowledge. That Mason Young, as receiver, drew cheeks against this account, which were, paid by the bank. That on August 23, 1892. said railway company appealed from the order made in the American Construetion Company’s (tase, appointing Mason Young receiver and authorizing him to borrow money and maitte receiver’s notes therefor, and the Pennsylvania Company appealed from the order in its suit removing Robert B. Cable as receiver and staying proceedings in said suit. That said appeals were perfected, and that all of said orders were reversed by the appellate court, and that on February 1, 1893, the mandates of the appellate court were filed in this court, reversing all the orders appealed from, including the order authorizing said receiver’s notes and directing the receivership of Robert B. Cable to be restored. That on April 7, 1893, said ’ mandates were announced, and in ac•cordance therewith the order appointing Mason Young receiver in the case of the American Construction Company was vacated by this court, and said receiver required to restore all property of said railway company; and at the same time, by an orde.r of this court, the receivership of Robert B. Cable was restored in the foreclosure suit brought by the Pennsylvania Company, and all the railway property, funds, earnings, and income were ordered restored to him as receiver. That Joseph H. Durkee, the plaintiff, was substituted in Cable’s place as receiver in the foreclosure suit, and not in the stockholders’ suit. That, when Mason Young was discharged as receiver, he had deposited in said defendant bank, which had been credited to said account of the ‘Jacksonville, Tampa and Key West Railway, Mason Young, Receiver,’ $28,059.37 in excess of the checks drawn by him as receiver, paid by said bank. That on April 7, 1893, Mason Young, as receiver, drew a check for this amount payable to R. B.. Cable, receiver, which check was assigned to the plaintiff, and which the said bank refused to pay. That when the first note given by Mason Young as receiver, for $12,666.67, payable to D. G. Ambler, and indorsed by him to the bank, became due, it was paid by Mason Young, receiver, od November 11, 1892, partly by another note given to the defendant bank for $9,-000, signed, ‘Mason Young, Receiver,’ payable to the bank. That, by giving said note of $9,000 in part payment of the note then due, the amount of outstanding notes was not increased. That on November 11th, when this note was made, Mason Young, as receiver, had issued and had outstanding receiver’s notes amounting to $153,333.34 That at no time from this date until his discharge did Mason Young have less than $150,000 in receiver’s notes outstanding. That Mason Young made certain small payments on the other notes held by the bank, by checks Which were drawn upon and charged to the account of the ‘Jacksonville, Tampa and Key West Railway, Mason Young, Receiver.’ That on April 6, 1893, the said notes, amounting to $28,059.37. being past due, were, without any specific direction of Mason Young, receiver, charged to said account of the ‘Jacksonville, Tampa and Key West Railway, Mason Young, Receiver,’ by the bank. That on June 28, 1893, upon the petition of Joseph H. Durkee, receiver, a rule was issued against the defendant bank, in the suit in which the said receiver was appointed, requiring the defendant bank to show cause why it should not pay over to said receiver the said sum of money. That defendant made return to said rule, contesting the jurisdiction of said court. That said rule was discharged on November 10, 1893, and on the same day an order was made authorizing the plaintiff to bring suit against the defendant for said amount, if in the judgment of said receiver such suit would result in benefit to the fund in his hands. That on April 8th the bank paid to the order of Mason Young, receiver, $73,816.81. which does not include the amount of $28,059.37. which had been charged off on account of overdue notes, as stated. And the court further finds, as conclusions of fact, that the amounts represented to be advanced by the defendant were advanced in good faith in accordance with the terms of the order of the court, which, at the time said advances were made, had not been appealed from.</p> <p>“And the court finds, as matters of law, that the plaintiff was authorized to bring this suit; that the discharge of the rule is no bar to this suit; that, this being a suit against a bank for an amount claimed io be due at a certain date, the defense of [not] any amount due said bank at that time could be interposed under the general issue without a special plea of set-off; that the receiver’s notes given for amounts borrowed' from the bank under orders of the court were not receiver’s certificates giving a lien upon the property of the railway company as security, but might be paid from earnings of the road whenever, in the discretion of the receiyer, they could be; that said notes, having been discounted by defendant bank and placed to the credit of Mason Young as receiver of the Jacksonville, Tampa & Key West Railway Company, established a debit which the bank had a right to charge off against any deposits made by Mason Young in the same capacity; that the charging off of said amount of §28,059.37 upon overdue receiver’s notes was allowable; that there was not said amount of §28,059.37, or any other amount, due by said defendant to said plaintiff, as receiver, at the date of bringing’ the suit, and judgment should be entered for the defendant, and it is so ordered.”</p>

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

<p>1. Insurance — Construction of Poltcv — Conflict of Laws.</p> <p>In an application for life insurance, made, by a citizen of Massachusetts in the state of New York, the question, “State here the exact kind, of policy or policies desired,” was answered, “Twenty-year endowment bond.” Thereafter the insurance company forwarded to the applicant, at his home, in Massachusetts, five bond policies, of $5,000 each, and requested him to send his cheek for the premium “if, after inspection, they were found in all respects satisfactory,” which he did. The application provided that the insurance applied for should not become binding upon the company until the first premium thereon had been actually received. Eeldl, that as the acts of approval, acceptance, and payment were performed in Massachusetts, the policies were Massachusetts contracts.</p> <p>2. Same.</p> <p>Where the rights of parties to a contract are In dispute, and are presented for adjudication in the state where the contract was closed, the controversy is to be determined according to the law of that state.</p> <p>8. Same — Application as Part of Policy — State Statute.</p> <p>Under Acts Mass. 1894, c. 522, § 73, declaring that every policy which contains a reference to the application for insurance must have attached thereto a correct copy of the application, and that unless so attached it shall not be treated as a part of the policy, the application will not be allowed to go to the jury, in an action on a policy to which the application is not attached, where the policy was approved and accepted, and the premium paid, by the insured in Massachusetts, though the application therefor was made in the state of New York.</p> <p>4. Same — False Representations in Application — Materiality—Question foii Jury.</p> <p>Where, under the law, an application for. life insurance cannot be treated as a part of the policy, and for that reason is not submitted to the jury, but the application is permitted to be used in evidence for the purpose of showing the representations made by the insured, and as bearing upon the question whether the company was influenced to enter into the contract hy false and material representations, the materiality of the alleged misrepresentations and false statements is a question for the jury.</p> <p>5. Instructions to Juby — Judge’s Expression of Opinion on Evidence.</p> <p>In charging the jury, in an action on a policy of life insurance, upon the question whether the insurance company was influenced to enter into the contract hy false and material representations, the court said: “It is difficult for me to see that it is material. Perhaps it will be difficult for you to see that it is. But this is not for me to pa.ss upon, but for you.’.’ Held that, the judge’s right to interfere with the finding of the jury upon such question being expressly renounced in the charge, the expression of the judge’s opinion was without prejudice.</p> <p>6. Insurance — Application—False Representations— Materiality — Question for Jury.</p> <p>Where an application for life insurance cannot he considered a part of the contract for insurance, because it is not attached to the policy, and there is therefore no warranty in respect to the questions and answers contained therein, hut it is sought to avoid the policy because of false representations, which it is alleged formed an inducement to the contract, the question whether the material and substantial facts shown by the evidence are sufficient to show the representations to be materially untrue, and whether the facts are so far inconsistent with the representations relied upon as to establish a material misrepresentation, are questions for the jury.</p> <p>7. Same — Instructions to Jury.</p> <p>Upon the question whether the representations in an application for insurance that the applicant had never used spirituous liquors to excess were in substance untrue, the court instructed the jury that it is not sufficient: to avoid the policy to prove a single case of excess, merely, nor a case of overindulgence thoughtlessly in one, two, or three instances. liv’d that, the instruction being simply explanatory of the measure of proof in respect to the question of a substantial vai-iance between the' conditions shown by the evidence and those shown hy the answers, there was no error.</p> <p>8. Same — Time Limit upon Evidence — Discretion of Court — Review.</p> <p>Where it is sought to avoid a policy of life insurance upon the ground of the falsity of the representation of the assured, in his application, that he had never used intoxicating liquors to excess, a reasonable time limit may be made by the court, within which the inquiry into the falsity of the representation is to be confined, and the determination of such limit involves a discretion which is not ordinarily subject to review.</p> <p>9. Same — Statements Made Carelessly — Instructions to Jury.</p> <p>An application for life insurance represented that the applicant had never been engaged in the liquor business. In an action upon the policy it appeared that, at a period eight or ten years before the making of the application, the insured had owned and operated a drug establishment, and that, as an incident to the business, liquors were sold in the way liquors are usually sold in such establishments. In respect to such misrepresentation the court instructed the jury “that the mere fact that a statement which was not true is made is far from making out a defense upon this point. The answer might have been made carelessly.” Held, that since the charge of the court elsewhere clearly pointed out the difference between material and immaterial representations, and the rules of law applicable to each, and informed tlie jury that any apparent departure from such rules in the expressions of the court should be disregarded, the instruction, if erroneous, was without prejudice.</p>

In Bankruptcy. On certificate by referee concerning allowance of landlord’s claim for rent, and of the bankrupt’s claim for exemption.

<p>1. Bankruptcy — Right to Discharge — Corporations.</p> <p>Under Bankr. Act 1898, a corporation wliicli lias keen adjudged bankrupt is entitled to a discharge in all respects as an individual bankrupt, would be.</p> <p>3. Same — Grounds for Refusing Discharge.</p> <p>Under Bankr. Act 189S, § 14b, providing that on an application for a discharge the judge “shall ⅜ ⅜ * investigate the merits of the appli•cation, and discharge the applicant, unless he has” committed some one of certain acts therein enumerated, the refusal to grant a discharge does not rest in the discretion of the judge, but the applicant is entitled to a discharge as a matter of right, unless he is found guilty of some one of the prescribed offenses.</p> <p>8. Same — Issues on Application for Discharge.</p> <p>The right to a discharge and its effect are wholly distinct questions. The proper time and place for the determination of the effect of a discharge is when the same is pleaded or relied on by the debtor as a defense to the enforcement of a particular claim, and that issue cannot properly ayise or be considered in determining the right to a discharge.</p> <p>4. Same — Effect of Discharge — Corporations.</p> <p>The effect of a discharge is to release only the bankrupt’s personal liability, and under Bankr. Act 1898, § 16, which provides that “the liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt,” the discharge of a corporation bankrupt does not prevent creditors from subsequently taking judgment against it in a state court in such limited form as may enable them to enforce the secondary liability of the directors under the state statute.</p>

In Bankruptcy. On review of report of referee in bankruptcy on bankrupt’s application for discharge and opposition thereto by creditors.

<p>L Extradition — Decision of Commissioner — Review on Habeas Corpus.</p> <p>In proceedings for the extradition of one charged in the complaint with being a fugitive from the justice of a foreign country, and with the commission of an extraditable offense under the treaty between such country and the United States, where the commissioner before whom the hearing is had has jurisdiction of the person of the accused, his finding of probable cause is open on habeas corpus only to the inquiry whether there was legal evidence before him on which to exercise his judgment, and not as to the sufficiency of such evidence.</p> <p>2. Same.</p> <p>A petition for a writ of habeas corpus in such, a case, where it is admitted that the commitment was founded upon evidence, to be entitled to, consideration must show either (1) all the evidence which was accepted by the commissioner as material, or (2) allegations of fact respecting such evidence which clearly overcome the presumption that legal evidence was heard in support of the commitment; and, in case of allegations of the latter class, mere general conclusions on the part of the pleader of tije legal effect of the evidence are insufficient.</p> <p>3. Forgery — Uttering Forged Instruments — Instruments Innocently Made.</p> <p>Copies of bonds and coupons engraved for the use of corporations, which copies were innocently made by the engravers as samples, and never delivered to the corporations, are not genuine instruments; and, although they are not forged instruments so long as they are innocently retained by the engravers or others to whom they are delivered, they become forgeries when fraudulently uttered as genuine obligations, although without alteration, and the person so uttering them is guilty of the offense of uttering forged instruments.</p>

<p>1. Unfair Competition — Grounds for Relief.</p> <p>It may be stated as a-general principle, underlying the law of unfair competition, that nobody has the right to sell his goods as the goods of somebody else.</p> <p>2. Same — Selling Different Goods under Same Name.</p> <p>Complainant was a manufacturer of laundry bluing sold ‘ under the brands “American Wash Blue” and “American Ball Blue.” For some 10 years a firm handled these products, and introduced them to the trade in its territory under such names. At the end of that time the firm went out of business, and defendants purchased its assets, advertised themselves as its successors, and as “manufacturers of American Wash Blue and American Ball Blue”; claiming the fight to use such brands, and selling thereunder, in the same territory, the product of a different manufacturer. Held, that such action was a fraud upon the public, and constituted unfair competition as to the complainant, which entitled it to the protection by injunction, regardless of the question whether it had a right to the exclusive use of the names as trade-names.1</p> <p>¾. Equity — Right to Relief — Doctrine of Clean Hands.</p> <p>A complainant’s right to relief in equity against unfair competition cannot be defeated on the ground that it has been guilty of fraud in misrepresenting to the public the origin of an article manufactured by it, which is not involved in the suit.</p>

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

<p>1. Copyright — Work of Art Executed oh Commission — Eights of Artist.</p> <p>When an artist is commissioned to execute a work of art not in existence at the time the commission is given, there is a very strong implication that .such work of art, when executed, sold, and delivered under the commission, is to belong unreservedly and without limitation to the patron, and that he may make or permit, to any extent, reproductions thereof; and the burden rests upon the artist to prove that he retains a copyright therein.</p> <p>2. Same — Mosaic Furnished for Public Building.</p> <p>Complainant accepted and executed a commission to furnish, deliver, and put in place, complete, two mosaic panels in the reading room of the Congressional Library Building, in Washington, from designs to be made by him. After he had painted the cartoons from which the panels were made, he copyrighted the same, and placed a notice of the copyright, thereon, after which the painting was submitted to and approved by the architect in .charge of the building; and the same notice was also placed upon the panels themselves, without objection by any officer representing the government. Defendant took photographs of the mosaics after they were in place, with the consent of the officers in charge of the library. Held!, that the failure of the officers to object to the placing of the copyright notice upon the panels did not bind the government to a construction of the contract contrary to its legal effect, or entitle complainant to claim a copyright in such panels, in the absence of any reservation of such right.</p>

<p>Patents — Validity—The Oxydonor.</p> <p>The Sanche patent, No. 587,237, for a device known as the “Oxydonor,” an appliance for. use in treatment for disease, considered, and, on evidence showing that in actual use the device had proved operative and useful, held valid, as against defendants, who were shown to be manufacturing and selling an infringing device of similar nature.</p>

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

<p>In Equity. Suit for infringement of patents. On final bearing.</p>

<p>1. Patents — Prior Public Use — Experimental Use.</p> <p>The construction for, and absolute sale to, a customer of a turbine wheel, and its installation in the manufactory of the purchaser for actual use in driving the machinery therein, more than two years prior to an application for a patent for such wheel, constitutés a prior public use which will defeat the patent, although one of the objects of the inventor may have been to have a practical test made of the machine for experimental purposes.</p> <p>2. Same — Turbine Water Wheels.</p> <p>The Swain patent, No. 535,467, for turbine water wheels, as to claims 1 and 3, is void on account of prior public use, and claim 2 is void because the distinctive feature therein shown lacks invention.</p>

<p>1. Patents — Designs.</p> <p>The essence of a design in the view of the patent law resides, not in the elements individually, nor in their method of arrangement, hut in the impression made through the eye on the mind of the observer, either of gracefulness or strength, or both combined, but, in any case, of the uniqueness and character of the structure as a whole.</p> <p>2. Same — Infringement—Design for Scale Frame.</p> <p>The Gilfillan design patent No. 25,327 for a design for a scale frame held not infringed.</p>

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

<p>1. Tus- and Tow — Grounding of Tow — Fault.</p> <p>A tug with two heavily laden tows on a lin-e, the whole extending 2,100 feet in length, was passing through a channel near the northern limit, which curved so as to require the tug to keep continually changing her course to the southward. There was sufficient room to pass through in safety, but the first tow, which was a schooner converted into a coal barge and in charge of a master, failed to follow closely the changing course of the tug, and got beyond the limits of the channel, grounding in the shallow water. Held, that the tug was in fault because of the failure of the master to keep watch to see that the tows were following so as to keep inside the channel, and that the master of the tow wasi also in fault for not using llie helm, as he might have done, to keep her in the course of the tug, and within the line of buoys which marked the channel.</p> <p>2. Same — Proximate Cause or Doss of Tow.</p> <p>The tug having afterwards made an attempt to rescue the tow, which was unsuccessful owing to a severe storm, because of which the failure could not be attributed to the fault of either vessel, the original grounding must be regarded as the proximate cause of the subsequent loss of the tow and cargo in such storm, and the damages divided accordingly.</p>

<p>Admiralty — Costs—Fkttlkmeíít odt of Court.</p> <p>In a suit in admiralty, in forma pauperis, to recover for services rendered by libelant as master of a vessel, the officers of court cannot be deprived of their fees by a settlement out of court; and where the defendant makes such settlement without the knowledge of the libelant’s proctor, and obtains a writing dismissing the suit, he will be taxed with the costs.</p>

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

<p>1. Water Courses — Rights of Millo wners— Mining — Pollution of Water of Creek.</p> <p>Where there are two ore mills in operation on the same stream, the lower proprietor may be compelled to take some steps and be at more expense than he would if he were the only proprietor on the stream; and it is the duty of the upper proprietor to use great care and caution, and to take such action as will avoid, as far as possible, any injury occurring to the lower proprietor by the flow of tailings from his mill.</p> <p>3. Same — Injunction— 1C virence.</p> <p>In making preparations to start up a mill for the reduction of gold and silver ores, which had been idle l’or a number of years, plaintiff found ¡lie water at the settling tank, from which the supply of water for operating the mill was obtained, contained a quantity of tailings, and that after being cleaned out the tailings and débris from above came into the tank in such quantities as might, if continued, prevent the mill from being run. Thereupon plaintiff demanded of defendant, who was operating a mill above the plaintiff’s on the same creek, that he prevent his tailings from polluting the water, and was given assurance that by the time he got ready to start up this would be done. At the time this suit was commenced defendant was not discharging tailings or sediment into the stream sufficiently to interfere with plaintiff’s using its waters for his mill, and had constructed a series of reservoirs by which he impounded the tailings, and prevented any injurious matter flowing from his mill into the creek. Held, that plaintiff was not entitled to an injunction restraining defendant from polluting the stream.</p> <p>3. Same.</p> <p>Defendant’s denial In his answer in such case “that he threatened or threatens or intends to dump any tailings or débris from his mill into said stream or water of said creek,” does not entitle plaintiff to an injunction against the pollution of the waters of the creek by defendant, on the grounds that the injunction cannot injure defendant under such circumstances, and that plaintiff is entitled to protection against defendant’s pollution of such waters in the future.</p>

<p>Mnsras Claim — Coivrkotion op Cams.</p> <p>A patent to a mining claim will not he reformed in equity, so as to make the calls therein, correspond with alleged monuments located on the ground, where it appears that for about 10 or IS years preceding the filing of the bill the alleged monuments were not in place, and there is as much doubt as to where the monuments were first located as there is whether the course is correct.</p>

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

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

<p>1. Jurisdiction op Circuit Courts — Suit Arising under Patent Laws.</p> <p>Where a contract, the validity of which is involved in a smt for infringement; of a patent, is not one between the parties to the suit, it is collateral thereto, and cannot characterize the suit as on the contract, and not one arising under the patent laws, and therefore not within the special jurisdiction of the circuit courts of the United States.</p> <p>2. Same.</p> <p>A suit in which the relief sought is an injunction, and 1he recovery of damages for the infringement of a patent, is one arising under the patent laws of the United States-, and for that reason within f’a jurisdiction of a circuit court, although it incidentally iuvolves a determination of the question of the ownership of the patent, which is claimed by both complainant and defendant under separate assignments from the patentee; such question itself being one to be determined under the patent laws.</p> <p>3. Samb^PijEAdino — Ali.koations op Bum.</p> <p>Where a bill sets forth a case within the jurisdiction of the court, the jurisdiction cannot be ousted by the anticipation and denial in the bill of possible defenses which may not be made.</p> <p>4. Patents — Suit for, Infringement — Allegations of Title.</p> <p>A bill in a suit for infringement of a patent, which sets out complainant’s title as derived through an assignment by the patentee and a second assignment by bis assignee, both made while the application was pending in the patent office, and the latter of which, only, is alleged to have been recorded, sufficiently states title in the complainant to give it a standing in court.</p> <p>5. Equity — Pleading—Profert.</p> <p>If proferí is made in a bill of any document of which it is not necessary, it will be treated as surplusage,.and does not entitle the defendant to oyer.</p> <p>6. Patents — Suit for Infringement— Pleading.</p> <p>A bill in a suit for infringement of a patent is not multifarious because it sets out, by way of anticipation, a claim of defendant to ownership of the patent through.an assignment alleged to be void, and prays that such assignment'be held of no effect as against the rights of the complainant, and the record thereof canceled.</p>

the Southern District of Ohio. This is a suit in equity brought originally against Kate P. Leaman for the alleged infringement of letters patent No. 257,913, for an improvement in freight and passenger elevators, issued to Philip Hinkle, May 16, 1882, upon an application filed September 27, 1881, assigned to O. M. Weymann, March 1, 1897, and by him assigned, on the 17th day of the same month, to the complainant, the Overweight Counterbalance Elevator Company.

<p>1. Patents — Patentable Novelty-Fluid Motors.</p> <p>The Bardsley patent, No. 509,644, for a rotary fluid motor, is void for lack of patentable novelty in view of the prior art.</p> <p>3. Basie — Infringe must.</p> <p>If such patent be conceded validity, it has necessarily a very narrow range, and is not infringed by the Hurlbut self-cleansing dental spittoon, which is designed for use in a different art, and not for the purpose of generating power.</p>

<p>Action in assumpsit to recover the statutory penalty for reproducing a copyrighted photograph. On motion by defendant for judgment non obstante veredicto.</p>

The following is the opinion of DOYLE, Referee: This is a hearing upon exceptions to the determination of the trustee In setting off exemptions to the bankrupt. The exception is to the determination of the trustee in setting off to the bankrupt, in lieu of a homestead, the balance of the proceeds of the sale of certain real estate which were turned over to the trustee by the sheriff of Summit county.

<p>Bankruptcy — Jurisdiction—Property op Deceased Partner — Administration — Possession op Administrator.</p> <p>Upon the filing of a petition in bankruptcy by one individually and as surviving partner of a late co-partnership, the bankruptcy court has complete jurisdiction over the partnership estate, although such estate, together with the personal estate of the deceased partner, was in course of administration in a state court before the petition in bankruptcy was filed, provided possession of the partnership assets can he obtained by the referee without forcibly interfering with the custody of the administrator.</p>

<p>Bankruptcy — Assets—Estate in Remainder in Bands.</p> <p>Under a devise to S. during life, with remainder to her husband, provided that upon the death of either of such devisees, the share so devised to him shall be equally divided between his children if living, the husband has 'an interest in the property devised, during the life of S. and while having children living, that should be included in his schedule of assets in proceedings in bankruptcy.</p>

<p>Bankruptcy— DiscisAiioK of Bankrupt — Conoeaumknt of Assets • — Patus •— Frauij.</p> <p>Evidence iliat a bill of sale for a stock of goods was made by the owner to an employe on a small salary; that only a small part of tlie'alleged consideration ivas paid in cash, the balance being represented by an alleged indebtedness for borrowed money, which the circumstances of the vendee indicated an inability to loan; iliat although the vendor was a married man, with a family to support, and the alleged ground of making the transfer was that the business had run down, the. vendor after the sale became the employe, in Turn, of the vendee, and the business was continued the same as before; that the vendor’s bank accounts showed no decline in his business either before or since the bill of sale; that none of the claims filed against the vendor in bankruptcy were in favor of business creditors; and that the vendor’s wife had obtained a separation from him, and he had become liable under a decree for the payment of alimony, — shows such a concealment of assets by the vendor as will bar his discharge in bankruptcy.</p>

<p>In Bankruptcy.</p> <p>Tim following is the opinion of Referee F. K. PE.ND1 JiTON:</p> <p>An order to show cause having- been made why tlie order adjudicating tlie above company a bankrupt should not be set aside and the petition and proceedings thereunder dismissed, the matter was referred to me by an order entered on tlie (>th day of February, 1900, to take tlie testimony and proofs in regard thereto and to report the same, together with my opinion thereon, with all convenient speed.</p> <p>Tlie grounds of the application arm</p> <p>¡1) That the Rollins Gold & Silver Mining Company was not, a corporation engaged principally in the business of manufacturing, trading, etc., as required by section 4 of the bankruptcy act. and not therefore snbjem to the provisions of that act</p> <p>(21 That no act of bankruptcy was committed by the said company, in that the board of directors of a corporation has not the power to make the statutory admission required by section .°> of .the act. of the inability of the company to pay its debts and its willingness to be adjudged a bankrupt, the power to do so being vested in the c,iockhoIders exclusively.</p> <p>(31 That the corporation was adjudged a bankrupt as the result of a scheme on the part of tlie president of the company and liis associates In the board of directors, whereby the company has practically obtained the benefits of the act ns a voluntary bankrupt.</p> <p>(4) That the corporation was not at the time of the filing of the petition for the adjudication herein, unable to pay its dolus.</p> <p>The first question involved is whether the above company is one of the corporations made by section 4, sulid. "b,” of the. bankruptcy act, amenable ro its provisions. That section provides that “any corporation engaged principally in manufacturing, trading-, pi biting, publishing or mercantile pursuits” may be adjudged an involuntary bankrupt.</p> <p>This corporation was organized under the lawn of the state of New York, entitled “An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,” passed February 17, 1848. The objects foi which tlie corporation was formed were staled in Hie certificate or articles of incorporation to be “the mining and reducing of gold, silver and other ores and sidling the same.”</p> <p>in the New York & Westchester Water Go. Case (D. 0.) 98 Fed. 711, it was held that Hit* question as to whether a corporation is included within ihe meaning- of section 4, subcl. “b,” or not, depends not on the extent of its powers, but on its pursuits, — not whether it has tlie power, under its articles of incorporation, but whether it in fact is engaged in one of the occupations these mentioned, and that the words of the act, “msmnfaciuring, trading.” etc., should bo interpreted according to their commonly accepted meaning. It has been decided that selling Hie product of one’s own land is not “trading or mercantile pursuit.”</p> <p>Tinder the present; act it lias been held that mining is not a manufacturing, trading or mercantile pursuit. In re Elk Park Mining & Milling Co-. (I). 0.) decided by Judge Halleck. The case seems not to be reported, but the copy of the opinion submitted to me is filed herewith.1 It appears from the public press in the last few days that a similar decision was rendered by Judge Oarland, of the United States circuit court for the state of Missouri, in the Victoria Zinc-Min. Co. Case (oral opinion). I think these decisions clearly correct. It was held in Byers v. Coal Co., 106 Mass. 131, that a mining company is not a manufacturing company within the meaning of the statute imposing upon officers and stockholders of manufacturing companies liability for debts. In another case that a company mining coal is not a manufacturing company within the meaning of the act releasing manufacturing companies from taxation. Appeal of Commonwealth (Pa. Sup.) 18 Atl. 133. The above is conceded by counsel for petitioning creditors, at whose instance this company was declared a bankrupt. But it is contended that reducing or milling ore is manufacturing within the meaning of the act.</p> <p>The question is therefore whether the Rollins Gold & Silver Mining Company was principally engaged in milling and reducing ore, and if so whether that business is manufacturing.</p> <p>It appears from the evidence that the property of the corporation was situated in Colorado, and consisted of 26 mines or mining claims, with the necessary machinery and appurtenances, a stamp mill which cost about $25,000, some 1,200 acres of agricultural lands, and 300 or 400 acres' of placer mining property; that the company had leased for almost the whole of the last eight years all its property, and has done nothing except receive the royalties or- rent that it became entitled to under the lease. The mining of ore has been carried on by the lessee or his sublessees, the lessee operating the mill to grind ores so mined, and perhaps for other miners. So far as milling ores for others is concerned, that is not manufacturing, but rather rendering or performing labor or services for hire.</p> <p>I think, however, it very clear that the business carried on by the lessee cannot in any sense be held to be the business of the lessor, and that on the above facts the company is not principally or at all engaged in milling and reducing ore. But even if it were, I do not think that milling and reducing ore come within the meaning of the word “manufacturing” as used in the act. It is certainly not within the commonly accepted meaning of the .word, nor do I think it within its technical meaning.</p> <p>The words “manufacture” and “manufacturing” have been defined frequently. “Manufacture” has been described as anything made or manufactured by hand or manual dexterity or by machinery. To form by manufacture or workmanship, by the hand or by machinery, to make by art and labor. To manufacture has been said to be “to make or fabricate from raw material by hand, by art or by machinery and work into convenient forms for use.”</p> <p>In Carlin v. Assurance Co., 57 Md. 515, it was held that a flour mill operated by steam, with a middling purifier and bran duster, belting and other machinery, was a manufacturing establishment, as the word was used in a policy of insurance. Charcoal produced by burning bone and bone dust by pulverizing bone have been held manufactures of bone within the meaning of the revenue act. Schriefer v. Wood, 5 Blatchf. 215, Fed. Cas. No. 12,481.</p> <p>In Hawes v. Petroleum Co., 101 Mass. 385, it was held that a company, among the purposes of which as stated in its articles of incorporation was “refining oil coal and other minerals,” was within the provisions of an act to define and regulate the enforcement of the liabilities of officers and stockholders Of manufacturing corporations. In all these cases a practically new article was produced or created. The Massachusetts court held in another ease that cutting natural ice and storing it was not manufacturing. Hittinger v. Inhabitants of Westford, 135 Mass. 258.</p> <p>Brande’s Encyclopaedia defines “manufacture” as a term employed to designate the change or modification made by art or industry in the form or substance of material articles in the view of rendering them capable of satisfying some desire or want of man; and manufacturing industry to consist in the application of art, science or labor to bring about certain modifications or changes of already existing materials. He includes under the term “manufac-iure” all branches of industry, with the exception of fishing, hunting, mining and such industries as have for their object to obtain possession of material products in the state in which they are fashioned by nature. He says that the term is generally applied to those departments of industry in which the raw material is fashioned into desirable articles by art or labor without the aid of the soil, but that there is no real good reason for such limitation, and that it is obvious from the slightest consideration that agriculture is nothing but a manufacture, for the business of the agriculturist is so to dispose of the soil, seed, manure or other materials, that they may supply him with other and more desirable products.</p> <p>This definition is certainly going very much further than ¡he ordinary acceptation of the term, but even in this view the industries excepted are “fishing, hunt,ing, and mining and such industries as have for their object to obtain possession of material products in the state in which they are fashioned by nature,” which would include the industry of milling and reducing ore. Mining and milling would seem to be, taken together, one industry, having for its object “to obtain possession of material products in the state in which they were fashioned by nature.” Mining, the process of extracting from the eartn the rougli ore, would seem to he the first step in the process, milling or reducing the second si op, to wit: the further separating of 1he materials found together, the one from the other, and extracting from the mass the particular natural product desired.</p> <p>1 think, therefore, the application should be granted on the first ground.</p> <p>As to the second ground, it would seem to be disposed of in this district by the case of In ro Marine Machine & Conveyor Co. (D. C.) 01 Fed. 680. It seems to me very clear that the admission is entirely within the authority of diiectors of a corporation charged with the management of its affairs, and is not a corporate function to be exercised only by the whole body of corporate members. The provisions as to dissolution of corporations are statutory, and are based on the lawmaking power’s conception of expediency, and do not, it seems to me, have any hearing on the present question.</p> <p>As to the third ground: Congress, the lawmaking power, prohibited corporations availing themselves of the provisions of the act, hut allowed creditors of certain corporations to make them involuntary bankrupts.</p> <p>There is no limitation on the word “creditors,” which could exclude creditors who were al the same time directors, officers or employés*. In fact section 59, subd. “o,” of the act, which provides that employés or relations shall not ho counted among creditors in computing the number who must join in involuntary proceedings, limits the exclusion to those who have not joined in the petition, clearly indicating that they may act as petitioning creditors. I do not think there is any reason to suppose congress intended to make any discrimination against directors, officers or stockholders.</p> <p>The present proceedings were brought by three creditors*, two of them were assignees of debts due officers or directors of the company, and it is contended that the proceedings are brought with the connivance of the officers of the company and for some purposes of their own. There is no proof that these particular claims were not valid debts of the company, but the contention is iliat they were assigned without consideration and for the purpose of bringing these proceedings.</p> <p>I do not think the question of the jurisdiction of the court depends in any way on the objects and purposes of the creditors in bringing the proceedings or that they acted with the knowledge and consent of officers and directors of the company. Assuming the jurisdictional facts to exist, the creditors may be directors or stockholders of the company, and in one sense their action in bringing involuntary proceedings against the company would be to allow the company to avail itself of the benefits of the act, but I do not think this alone any objection or that it is prohibited by the statute. The act does not allow corporations to go into voluntary bankruptcy, but It does not seem to me that that should preclude creditors who happen to also be stockholders or directors of the company from exercising the rights of creditors to bring involuntary proceedings if facts of insolvency, etc., exist.</p> <p>As to the fourth ground: There was some evidence to show that the company’s property was worth the amount of its debts, but it was under lease and not in the possession of the company, and although the evidence is not very full, the fair inference from it is that the company was not in funds to pay its current debts. The question of its financial condition was not very fully gone into in the testimony, principal reliance being placed by counsel on the other grounds, and, in the view I have taken, it seems unnecessary to pursue this point further.</p> <p>The application should be granted on the first ground, all of which is respectfully reported.</p>

<p>Bankruptcy — Interest of Trustee in Litigation in State Court — Injunction.</p> <p>Where, four months prior to being adjudicated a bankrupt, a debtor sold certain buildings, under an agreement with the vendee that if any liens were established against the property the latter might discharge the same out of part of the purchase price retained by him, and thereafter mechanics’ liens were filed against the buildings, and suits brought to enforce the same in a state court, after proceedings in bankruptcy had been instituted against the vendor, the trustee of the bankrupt is not entitled to have the suits for the enforcement of the liens against the buildings enjoined, and the proceedings removed to the bankrupt court.</p>

<p>1. Bavxiu ptoy — í'ukfeí:exce«—Hkcovkby by Trustkk.</p> <p>Money collected on execution and received by tlie creditor’before the tiling of a petition in bankrupicy against ihe debtor, lrat within four months prior thereto, although it eons titules a preference, within Baukr. Act 1Si:S, ⅜ uoa, cannot be recovered back by (he trustee, under Miction 00b, unless it is shown that the creditor had reasonable cause to believe that a preference was intended.</p> <p>8. 8amk--Jurisdiction of Bankruptcy Courts.</p> <p>tinder Bankr. Act 1898, where a judgment was collected by execution, and the money paid over to the judgment creditor before the filing of a petition in bankruptcy against tlie judgment debtor, although within four months prior thereto, tlie court ot bankruptcy lias no power, in a summary proceeding on petition of the trustee, to compel tlie «'editor to repay the money, but the remedy of the trustee is by plenary action in a court of competent jurisdiction.</p>

<p>Salvage — Amount of Award — Towage Servscbs.</p> <p>The W., a steamer carrying freight between New York and New Orleans (her value being $150,000, her freight $10,000, and her cargo of the value of $550,000), became wholly disabled in a hurricane on the high seas. The V., a steamer valued at $250,000, carrying passengers and mails from New York to Havana, sighted the W., and, in answer to her signals of distress, came to her assistance, and, by request of her master, towed her safely to the port of Nassau, 250 miles, the trip requiring about three days. A boat of the Y. made three trips to the W., at some peril, to carry hawsers, two of which parted. No other vessel was at hand, and, although the W. was in the track of steamers when picked up, she was drifting out of it. Ecld, that the Y. was entitled to a salvage award of $23,000, in addition to her expenses, to be apportioned pr.o rata between the W., her freight and cargo, and to be distributed, $3,500 to the officers and crew of the V., — an' extra allowance being made to the seamen who manned the boat, — and the remainder to the owners.1</p>

<p>1. COLLISION — Steamship and Ferryjsoat — Passing Unnecessarily Near New ■ York. Piers.</p> <p>It is negligent navigation Cor a steamship, without necessity, to run at a speed o£ 8 or 10 knots within 300 feet of the ends of the piers along tlie New York side of the Hudson, where numerous ferryboats are constantly entering and leaving their slips, which cannot be jnslilied by any X>revious practice or custom, and which renders such vessel liable for any resulting collision with a ferryboat.</p> <p>2. Fame- .Steam Vessels Crossing — Duty op Privileged Vessel.</p> <p>The one of two crossing steam vessels which has the right of way has the right to rely on The performance by tlie other of her duty to keep out of the way. so long as there is reasonable time and space for her to do so; hut, when it becomes obvious that she cannot avoid collision by her own maneuvers, it is tlie duty of the privileged vessel to at once stop and reverse.</p> <p>8. Fame — Insufficient Lookout.</p> <p>Tlie Chicago, a ferryboat miming between New York and the New Jersey shore, and the City of Augusta, a steamship coming in from the sea, came in collision near tiie end of the New York piers, as tlie Chicago was about to enter her slip in the night, and the Chicago was sunk, being struck about one-tliird of her length from the stern. The vessels appeared to have sighted each other at about the same time, -which was not until the Chicago was about 200 feet, and the Augusta 400 or 500 feet, from the point of collision, although botli carried the usual lights, and there was nothing to obstruct the view between them. Tlie Chicago, being Cien too near the course of the Augusta to avoid collision by stopping, increased her speed and attempted to pass, ahead, signaling her intention; at the same time the Augusta made a similar signal, neither signal being heard by the other vessel. Held, that both vessels were in fault for failing H) sooner observe each other, and that the Augusta was further in fault in passing up at a speed of 8 or 10 knots within between 200 and 300 feet of the ends of tlie piers, without necessity, and because she failed to stop and reverse until within 25 feet of the Chicago, although it was evident, when she was 300 feet or more distant from the point of collision. that the Chicago was attempting to pass ahead and that collision could not otherwise be avoided.</p>

<p>In Admiralty. Suit for collision.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>On Demurrer to New Intervening Petition.</p>

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

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

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