Volume 103 — Federal Reporter

<p>1. Injunction — Grounds—Protection of Pecuniary Rights.</p> <p>A court of equity may properly grant an injunction restraining health, officers of tlie 'United States or of a city from imposing or enforcing unlawful restrictions upon tlie right of a complainant, and others for whom he sues, to travel or to leave the city in which they are, in the pursuit of their lawful business, where such right has a pecuniary value, and the enforcement of the restrictions complained of will result in irreparable loss and injury to tlie complainants.</p> <p>2. Health — Power of Health Board to Establish Rules — San Francisco Charter.</p> <p>The charter of tlie city and county of San Francisco vests the legislative power of the corporation in a board of supervisors, and provides that every legislative act shall lie by ordinance; and the board of public health thereby created, and charged with the duty of managing the hospitals, alms houses, etc., of enforcing the ordinances, rules, and regulations which may be adopted by tlie board of supervisors for the securing of good sanitary conditions and the protection of the public health, and of recommending such legislation, has no authority to itself enact legislation or establish rules and regulations for dealing with a supposed serious epidemic.</p> <p>8. Same — Powers of Health Officers — Legality of Measures Adopted.</p> <p>Health officers of a city should be clothed with sufficient authority to enable them to deal with conditions affecting the public health and to meet emergencies in a prompt and effective maimer, and they will be upheld in tlie exercise of a wide discretion in the execution of measures enacted to that end; but where tlie municipal authority has neglected to provide suitable rules and regulations upon the subject, and the executive officers are left to adopt such measures as they deem suitable for the occasion, their acts are open to judicial review, and. to be sustainable, their measures must respect the constitutional rights of individuals, be uniform in their operation, and reasonably adapted to secure the object in view.</p> <p>4. Same — Regulations for Protection against Contagious Diseases — ConSTITÜTIONALITY.</p> <p>The board of health of San Francisco adopted a resolution declaring its belief in the existence of bubonic plague in the city, and, in connection with the quarantine officer of tlie United States for the port, promulgated and. enforced an order prohibiting any Chinese or Asiatic person from leaving the city without first submitting to inoculation with a serum supposed to be a preventive, but the administration of which to a person who had been exposed to the disease was dangerous to life and contrary to medical authority. There were some 25,000 Chinese residents of the city, many of whom resided in the “Chinese quarter,” and many others scattered throughout other parts of the city. ' The regulation applied only to the Asiatic or Mongolian race, but included them as a class, without regard to the previous condition, habits, exposure to disease, or residence of the individual; nor did it prohibit them from going anywhere within the city. It was not shown or claimed that the disease existed in the country anywhere outside the city, nor was any evidence offered that the Mongolian race, as a class, was more subject to the disease than others. Held .that, conceding the power of the board to enact proper rules and regulations in the premises, the (one in question had no reasonable relation to the protection of the health of the inhabitants of the city, and was illegal and void, as an unconstitutional invasion of the rights of the persons against whom it was directed.</p> <p>6. Same.</p> <p>Such regulation, discriminating as it does against an entire class, whether native or alien, in violation of the constitutional guaranty of the equal protection of the laws, cannot be sustained by instructions from the supervising surgeon general of the marine hospital service of the United States, directing the health officer of the port to require transportation companies to refuse transportation to Asiatics except on his certificate; such order being based on regulations promulgated by the secretary of the treasury under Act March 27, 1800 (26 Stat. 31). That act provides that whenever it shall be made to appear to the satisfaction of the president that any one of certain contagious diseases exists in a state or territory, and that there is danger of the spread of such disease into other states or territories, he may cause the secretary of the treasury to promulgate such rules and regulations as in his judgment may be necessary to prevent the spread of such disease from one state or territory into another; but there is nothing in such provisions which justifies the promulgation of regulations in violation of constitutional rights, or the adoption and enforcement of such measures by subordinates in their execution.</p>

<p>1. Jurisdiction of Federal Courts — Limitation as to Subject-Matter in Controversy.</p> <p>Where a complainant invokes the jurisdiction of a federal court on the ground of diverse citizenship, the court has concurrent jurisdiction with a state court to determiné all the questions involved in the case. The fact that the complainant raises a federal question, by asserting rights under the constitution of the United States, does not restrict the court in such case to a determination of that question alone. .</p> <p>2. Health — Validity of Regulations — Power of Courts to Beview.</p> <p>A large discretion is necessarily vested in state or municipal authorities in determining what is a proper exercise of the police powers of the state for the protection of the public health, and what measures are necessary to meet particular conditions or emergencies; but their determination is not final, and is subject to supervision by the courts. They may not, under the guise of protecting the public, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful oceupatkms, and whether they have done so in a particular case is a judicial question.</p> <p>3. Same — Quarantine. Regulations' — Validity.</p> <p>The purpose of quarantine regulations in case of the existence of a contagious or an infectious disease is to limit the spread of such disease to the fewest possible number of persons, by isolating the persons already affected or exposed from communication with all others so far as possible. Where not exceeding 9 persons in a city were supposed to have died from the bubonic plague, aud no living persons were known to have contracted the disease, a regulation establishing a general quarantine district, embracing a territory covering 12 blocks, in which more than 10,000 persons resided, which prohibits persons from entering or leaving such district, but permits free intercourse between all persons within it, cannot be upheld as a reasonable regulation for preventing the spread of the disease, but its effect must necessarily he, if the disease exists within the district, to facilitate its spread among all the persons confined within its limits.</p> <p>4. Same — Constitutionality op Quarantine Regulations — Discriminating Enforcement.</p> <p>A law or municipal regulation, though fair and undiscriminating on its face, may be rendered invalid on constitutional grounds by the manner in which it is administered by the public authorities charged with its execution; and a municipal regulation establishing- a quarantine district is void, as in violation of the constitutional guaranty of the equal protection of the laws, where it is shown that it is enforced against all Chinese persons within the district, and against the buildings occupied by them, while it is not enforced against persons of other races, or against their residences, although situated within the limits of the district as defined in the regulation.</p> <p>5. Same — Review by Courts — Questions op Fact.</p> <p>In a suit to enjoin the enforcement of quarantine regulations adopted because of the supposed existence of a contagious disease in the locality quarantined, the court will not, under ordinary circumstances, undertake to review the finding of the proper health authorities that the disease exists and the quarantine is necessary.</p>

Hu it in equity by tlie receiver of an insolvent banking corporation of the state of Washington against its stockholders to enforce their statutory liability for the obligations and debts of the corporation.

This case comes up on appeal from a decree of the circuit court of the United States for the Eastern district of Virginia. 98 Fed.

<p>Equity — Taking Testimony — Objections to Evidence.</p> <p>A federal court will not pass upon questions of the relevancy or materiality of evidence during the examination of a witness before an examiner on a motion to compel an answer, but the proper practice is for the answer to be taken, and incorporated in the record, together with the objection thereto, which will be reserved for final hearing.</p>

<p>I, Wills — Validity—What Law Governs.</p> <p>Where a testator, having real and personal estate In Pennsylvania, and his domicile in that state, and having also real estate in Virginia and West Virginia, after certain specific bequests devises all the residue of his estate to a city in Virginia, the validity of such residuary devise, as respects the real and personal property of the testator In the state of Pennsylvania; is to be determined by the law of that' state.</p> <p>3. Same — Direction to Executors to Sell Real Estate — Effect.</p> <p>A direction to executors, in a will, to sell all of the testator’s real estate at the end of 20 years, works a conversion of the testator’s real estate, wherever situated, into personalty, as of the date of the testator’s death.</p> <p>3. Same — Charity—Enforcement.</p> <p>A dpvise of all the residue of a testator’s estate, remaining after payment of certain specific bequests, to a city, “to be expended in said city in the erection of school houses for the education of the poor,” is not void for indefiniteness.</p> <p>4. Same — Capacity of City to Take.</p> <p>Under Code Va. c. 05, conferring on any board of education or other corporation power to take a gift, devise, or bequest for literary or educational purposes, a city whose charter provides that it shall have all such powers as are or may be conferred on the councils of cities and towns having a population of 5,000, by the constitution and general laws of the state, and that the administration and government of said city shall be vested in a board called the “common council,” “and such other boards and offices as are now or hereafter may be provided for,” and for which a special board of trustees is created by the legislature, to administer the trust created by the will under consideration, is competent to take a bequ'est for the erection of schools for the edification of the poor.</p> <p>5. Same — Bequest in Blank — Effect on Residuary Bequest.</p> <p>A will bequeathed “the following sums of money to each of the persons named in Schedule A,” and the residue of the estate to a municipal corporation. A paper marked “Schedule A” was found and probated with the will, but was a blank, except as to the following caption: “List of persons to whom bequests in the following amount, and made and intended for Schedule A, mentioned in my last will.” Meld, that the residuary clause was not rendered uncertain because of the incomplete bequest to persons intended to be named in the schedule.</p> <p>6. Same — Perpetuities.</p> <p>A devise to a municipal corporation for a public use, with direction that the same be sold, and the proceeds invested for a stated number of years, or until the principal, with the accumulations, amounted to a sum named, when it should be applied to the purpose specified in the will, is not invalid because in violation of the rule as to perpetuities, since the whole beneficial interest in the lands, before and after sale, is given directly to the devisee.</p>

Motion by a judgment creditor, whose judgment was entered subsequent to the appointment of a receiver, to be allowed to intervene and set aside the decree appointing the receiver.

<p>Insurance — Construction of Policy — Goods in Transit.</p> <p>A policy of insurance which was in form a marine policy contained a ■printed provision in which it was stated that the insurance should “continue and endure until said goods and merchandise shall be safely landed at-as aforesaid.” None of the blanks in said provision intended to show the name of the vessel and the ports of shipment and destination were filled. The policy had stamped thereon a statement that the special term's and conditions governing the insurance were set forth in a rider attached, the contents of which should supersede anything to the contrary in the printed body of the policy, and the rider stated the insurance to be upon “oil in tank cars in transit.” Held, that the printed provision set out was intended, when properly filled out, to be applicable only to sea carriage, and was no part of the contract made by the policy in question, and that when a tank car of oil, covered by the policy, had been, delivered by the railroad which transported it to the insured, by being placed by its direction upon its private siding alongside its warehouse, the oil was no longer “in transit,” within the terms of the policy.</p> <p>Acheson, Circuit Judge, dissenting.</p>

<p>Wkongeul Death — Punitive Damages — Alabama Statute.</p> <p>Under the statutes of Alabama (Code, §§ 26, 27), the personal reprer sentative of a deceased minor child, in an action against the receivers of a railroad to recover for the death of his intestate through the wrongful act or negligence of defendants, or their servants, may recover punitive damages.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>1. Corporations — Actions to Enforce Statutory Liability of Stockholders — Limitations.</p> <p>Gen. St. Kan. e. 23, § 44, provides tliat if a corporation be dissolved, leaving debts unpaid, suits may be brought against stockholders. Id. par. 1200, provides that, as to creditors seeking to enforce additional liability of stockholders, the corporation shall be deemed dissolved if it has suspended business for more than one year. Held, that limitations against the enforcement of such liability begin to run at the expiration of a year from such suspension, whether the claim against the corporation has been reduced to judgment or not, since the creditor may immediately proceed against the stockholders on the dissolution of the corporation, without waiting to obtain a judgment against the corporation.</p> <p>2. Same.</p> <p>Code Civ. Proc. N. Y. § 394, providing that an action against a stockholder to enforce a statutory liability must be brought within three years after the cause of action accrues, applies to an action against a stockholder of a corporation of another state to enforce a liability imposed by the statutes of such state.</p>

<p>1; Bankruptcy — Discharge—Fraudulent Concealment of Property. '</p> <p>Under Bankr. Act 1898, § 29b, authorizing the discharge of a bankrupt unless he knowingly and fraudulently conceals any of the property belonging to his estate while a bankrupt, the mere concealment of property by the bankrupt is not ground for denying a discharge, if it was not done knowingly and fraudulently.</p> <p>2. Same — Objections by Creditors — Specification.</p> <p>A specification, in objections to the discharge of a bankrupt, that the latter has concealed property belonging to his estate in bankruptcy, but not charging that it was knowingly and fraudulently done, does not present any issue on the bankrupt’s application for discharge.</p> <p>3. Same — Amendments.</p> <p>Where the specifications in objections to the discharge of a bankrupt are defective, in not charging that a concealment of property by the bankrupt was knowingly and fraudulently done, the same may be amended by the insertion of such allegation after the evidence is in.</p> <p>4. Same.</p> <p>Objections to the application of a bankrupt for a discharge cannot be amended so as to present a new issue, as the failure to keep books, after the evidence is in and the objections have been overruled.</p> <p>5. Same — Recovery of Property by Trustee.</p> <p>The discharge of a debtor in bankruptcy in no way precludes the trustee from recovering property of the bankrupt’s estate which has been fraudulently transferred.</p>

<p>Bankruptcy — Involuntary Proceedings — Who are Creditors.</p> <p>Under Bankr. Act 1898, § 1, subd. 9, and section 03b, defining a creditor as one who owns a demand or claim provable in bankruptcy, and providing that unliquidated claims may be proved and allowed only after being liquidated, one having an unliquidated demand against an insolvent debtor is not such a creditor as is entitled to institute involuntary proceedings to have his debtor adjudged a bankrupt.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Homestead in Personal Estate — Sufficiency of Claim.</p> <p>A writing filed by a bankrupt with the referee in bankruptcy, claiming the “exemptions allowed a householder under the state law” in the property surrendered, and referring therein to the inventory made of said property by the trustee, wherein a cash valuation is affixed to each parcel or article, which writing is followed by the filing of a homestead deed, is a sufficient designation of the property claimed by the bankrupt to meet the requirements of Code Va. 1887, § 3639, providing that a homestead in personal estate shall be set apart in a writing signed by the householder, which shall designate and describe with reasonable certainty the estate so selected, and affix to each parcel or article the cash valuation thereof.</p> <p>2. Same — Exemption in Property not Paid for — Identification.</p> <p>Since, under Code Va. 18S7, § 3630, the householder’s right of exemption in personal property does not hold as against any execution or demand for the purchase price, a bankrupt, who has purchased goods and commingled them in a common stock, in making a claim for the homestead exemption in personal estate under the state law must designate the goods for which the purchase price has not been paid, and if he is unable to do this, because of their having been intermingled with goods paid for, he cannot claim an exemption as to any part thereof.</p> <p>3. Same — Right of Householder as against Mercantile Creditors.</p> <p>Since the right to a homestead exemption in personal estate holds against all claims except those for the purchase price, rent, and taxes, a bankrupt is entitled to a homestead, as against mercantile creditors, out of a stock of merchandise that has been surrendered in bulk to his trustee in bankruptcy.</p> <p>4. Same — Goods Paid for from Proceeds of Property not Paid for.</p> <p>Where the goods surrendered by a bankrupt were honestly acquired in the regular course of business, he is entitled to a homestead exemption in same, although they were paid for out of the proceeds of'goods hot paid for.</p> <p>5. Same -Pkaud — Pleading—Evidence.</p> <p>A general allegation in exceptions to a 'bankrupt’s claim for homestead exemption out of the personal esiate surrendered, that the excepting creditors were induced to give up tlieir goods by the fraud and misrepresentation of tlie bankrupt, and that the claim of a homestead is part of a scheme on the part of the bankrupt to hinder, delay, and defraud ills creditors, cannot defeat the homestead claim, where the evidence fails to show that credit was given because of any false statement or misrepresentation of the bankrupt.</p>

Appeal by tbe importers from a decision of the board of general appraisers which sustained the assessment of duty by the collector upon the merchandise in question.

<p>In Equity. 'Suit for infringement of trade-mark and for unfair competition. On fiual hearing.</p>

<p>1. Trade-Marks — Suits for Infringement — Damages Recoverable.</p> <p>The amount recoverable by the oWner of a trade-mark from a willful infringer is not limited to the profits made by the defendant, but includes also the damages resulting to the complainant from the injury to his business or the reputation of his goods.</p> <p>2. Same — Exemplary Damages.</p> <p>Exemplary damages cannot be awarded by a master on an accounting directed in á suit in equity for infringement of a trade-mark.</p> <p>8. Same — Costs.</p> <p>A decree for the complainant in a contested suit for infringement of a trade-mark carries all costs, in accordance with the usual rule in equity, unless under exceptional circumstances.</p>

<p>1. Federal Courts — Jurisdiction—CrrizExsuri’ ok Parties — Formal Parties —Plea in Abatement.</p> <p>The fact that merely formal parties, against whom no relief is sought, and who are residents of the same state with the real defendants, are made defendants, when they might properly be joined as plaintiffs, will not defeat the jurisdiction of the federal court, on the ground that the parties on one side aro not all citizens of different states from those on the other.</p> <p>2. Same — Amount in Controversy.</p> <p>Allegations in a complaint for the cancellation of a lease» and to enjoin the lessees from using the premises, that the value of the leased premises is $10,000, and that the rental value of the property is $2,400 a. year, is sufficient to give jurisdiction to the federal court, where the action is between citizens of different states.</p> <p>3. Lease — Forfeiture—Abandonment—Cancellation.</p> <p>Where tlie lessee has not only forfeited ids rights under the lease, but has abandoned the same, the lessor is entitled to have a cancellation of the lease in equity.</p> <p>4. Lease — Mutuality—Validity.</p> <p>A lease which puts it in the power of lessee to terminate the lease at will is void for want of mutuality.</p>

<p>1. Taxation — Construction of Statutes.</p> <p>Statutes imposing taxes are to he strictly construed, contrary to the rule applicable to remedial statutes, and the powers granted to officers thereby must he strictly executed.</p> <p>2. School Districts — Mode of Levying Taxes — South Carolina Statutes.</p> <p>Act S. C. Dec. 24, 1888 (20 St. at Large, p. 49), amended and re-enacted in 1893 (21 St. at Large, p. 402), which relates to school districts, and, among other things, requires the presentation of a petition to authorize the levy of a special tax in a district, and which further provides that it “shall not interfere with any school district which has heretofore been created by special act,” being a general statute, does not affect the powers of a district subsequently created by a special act, which itself prescribes the procedure for the levy of a special tax in such district; and a tax levied in the manner so prescribed is valid, although no petition therefor was presented.</p> <p>3. Taxation — Validity of Tax Sale — Acts of Officer. De Facto.</p> <p>A sale of lands in South Carolina under a tax execution directed to a sheriff is not unlawful because made by a person who acts as a deputy, with the approval of the sheriff, although his appointment as deputy has not been confirmed by the judge of the circuit court, as required by statute, but his acts are valid as those of an officer de facto.</p> <p>4. Same — Statutory Limitations — Sale of Excessive Quantity of Land.</p> <p>Under the statute of South Carolina (liev. St. §' 347) providing that a sheriff having a tax warrant for collection shall seize and sell so much of the property of the delinquent taxpayer “as may he necessary to raise the sum of money therein named and charges thereon,” the limitation is mandatory, and a sale of a tract of land worth $2,1500, and readily capable of division, to satisfy a tax warrant calling for only about $30, is unauthorized, and voidable hy the landowner,</p> <p>o. Mortgages — Right of Mortgagee to Accounting for Rents.</p> <p>A mortgagee of land cannot require a purchaser of such land at tax sale to account for rents received while in possession under his tax deed.</p> <p>6. Equity — Decree between Co-Defendants — Necessity of Cross Bill.</p> <p>A defendant cannot have a decree ag'ainst a co-defendant without a cross hill with proper prayer and process or answer, as in an original suit.</p>

<p>I. Public Lands — Mistake in Survey — Jurisdiction op Land Department.</p> <p>The land department of the United States has no power to correct errors in a survey of public lands after such lands have been sold, by reference to such survey, to purchasers in good faith; the remedy of the government, f a mistake has been made to its injury, being.by a suit in the courts.</p> <p>% Same.</p> <p>Where the United States has caused a township of public land, containing a navigable lake, to be surveyed, and a plat of the same made, showing the meander line of the lake, and the fractional subdivisions of land bordering and having riparian rights thereon, and has sold all the lands in the township in accordance with such plat, the land department has no jurisdiction or authority, on a claim that the meander line as shown on the plat is inaccurate, and is in fact at some distance from the lake, to survey and sell the lands lying between such line and the lake, as against bona flde owners of fractional lots, who- purchased the same on account of their riparian rights, and especially where no boundaries were marked on the ground by the surveyor, so that the location of the land could only he determined by purchasers bv reference to the lake shore, as the only natural boundary given. .</p>

<p>On Exceptions to the Report of the Master.</p>

<p>Appeal from tlie Circuit Court of tlie United Stales for the Western District of Pennsylvania.</p> <p>In Equity. The following is the opinion of the court: below (BUFFING TON, District Judge):</p> <p>As we view it, the decision of the original case depends on the answer to two questions:. First, has the trustee shown a right under iho mortgage to foreclose? And, secondly, if so, can W. R. Kami or tlie Penn Plate-Glass Company, later successive purchasers of the mortgaged premises, question the validity of the mortgage? From the very nature of a pledge or mortgage of property, a right to foreclose or sell the pledge arises, ex necessitate, and without, express grant of such power, upon default. “Such right of mortgage forelosure.” says Mr. Justice Matthews in Railroad Oo. v. Fosdick, 106 U. S. 47, 3 Sup. Ot. 10, 27 R. Ed. 47, “follows from the nature of the security, and arises upon its face, unless restrained by its terms.” When, then, the right of a mortgagee or pledgee to dispose of the pledge Is denied, a limitation or exception abridging sucli right should be shown; and such limitation, being in derogation of an inherent, essential right, must tie strictly construed. Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Go., 139 TJ. S. 342, 13 Sup. Ot. 532, 35 R. Ed. 310; Farmers’ Roan & Trust Oo. v. Northern Pac. R. Oo. (O. O.) 61 Fed. 546; Toler v. Railway Co. (0. O.) 67 Fed. 17!). Moreover as the provision enabling a mortgagee to take possession of mortgaged premises is held to be cumulative (Morgan’s R. & T. Railroad & Steamship Oo. v. Texas Cent. Ry. Oo.. 137 Ü. S. 171, 11 Sup. Ct. 61, 34 R. Ed. 625; Mercantile Trust Co. v. Missouri, K. & T. Ry. Oo. [O. 0.] 36 Fed. 221; Farmers’ Roan & Trust Co. v. Winona & S. W. R. Co. [C. O.j 59 Fed. 957; Dow v. Railroad Co. [G. O.j 20 Fed. 200; Credit Oo. v. Arkansas Cent. R. Co. rO. C.] 15 Fed. 46; Alexander v. Railroad Oo., 3 Dill. 487, Fed. Cas. No. 366), it follows that limitation on the exercise of such specific cumulative power cannot restrict the general generic right of foreclosure incident to the mortgage.</p> <p>The provision in the present mortgage relating to foreclosure by bill in equity is found in tlie last clause of article third. The clause therein found, "That, in case default shall he made as aforesaid,” refers to the default specified in article second, relating to entry sub conditione by the trustee, and- to the default specified in the first part of' section third, relating to a public sale sub conditione by the trustee. The first provision relates, inter alia, to a default in payment of interest, and is as follows: “In case default shall be made in the payment of any installment of interest on any of the aforesaid bonds according to the tenor of the said bonds, and of any of the coupons accompanying the same, or in the performance of any covenant, agreement, or stipulation herein contained, and hereby required to be kept and performed by the said party of the first part, and if such default should continue for the period of six months after demand made in writing by said trustee upon said party of the first part for the payment of the said moneys or the performance of the said covenants, it shall be lawful for the said trustee * * * to enter into or upon * * * the premises hereby conveyed.” The second provision, found in the opening of section third, embraces the default of interest specified above, and adds the default of principal. It is. as follows: “In case default shall be made as aforesaid, or in case default shall be made in payment of the principal of any of the said bonds or any part thereof, and in case such default shall continue for the period of six months after demand made in mating by the said trustee for the payment of the' said moneys or the performance of the covenant or covenants, it shall be also lawful for the said trustee, and upon receiving a written requisition, signed by majority in value of the bonds secured-hereby, then outstanding, with proper indemnification against costs, compensation, and expenses, it shall be the duty of the said trustee', or its successor or successors, after entry as aforesaid, or other entry, or without entry, personally or by its attorney or agent; to sell and dispose of all and singular •the premises, franchises, and contracts hereby conveyed and assigned, or intended so to be, as an entirety, or such part or parts of the same as shall be necessary, from time to time, at public auction.” The last clause of section third provides for judicial foreclosure, and is as follows: “And in case default shall be made as aforesaid, and shall continue as aforesaid, it shall also be lawful, and it shall be the duty of the said trustee and its successor or successors in the said trust, upon receiving a written requisition, signed by the holders of one-third in value of the bonds hereby secured and then outstanding, after entry as aforesaid, or other entry, to commence and prosecute such actions, suits, or proceedings at law or in equity as shall be necessary to obtain the sale of the said premises by and under judicial authority, and to bar and foreclose the equity of redemption of the said party of the first part, its successors and assigns, and of all persons claiming under them or any of them and the said premises hereby conveyed or intended so to be, with the appurtenances, and every part and parcel thereof.” Analysis of these three provisions shows that the first authorized an entry by the trustee in case interest was defaulted for six months, and retention and operation of the property until such interest was paid from the profits. Action under this provision was wholly at the will of the trustee. The bondholders had no voice or compelling power in its exercise. The second provision was for a public nonjudicial sale by the trustee. To the default of interest specified in the preceding section there was added default in payment of bond principal, and there was superadded a clause empowering a majority in value of the bondholders, on giving indemnity for costs, to compel the trustees to make such nonjudicial sale. The third provision, it will be noted, is for the same defaults, authorizing the entry of judicial procedure by the trustee. It is contended by the respondents that, by this last provision, the trustee could not resort to such judicial proceedings to foreclose unless upon the request of pne-third of the bondholders. By the complainants it is contended that the. language used was not a limitation upon the right of the trustee to resort to judicial proceedings, but conferred on the bondholders the power to compel the trustees to do that which- the default made it lawful and discretionary for it to do without such request. After careful consideration, we are of opinion the contention of the complainant is right. It is the natural construction of the language used, and is in accord with the general scheme of the mortgage. The first provision defines what it shall be lawful for the trustee to do in the way of simple entry and taking temporary possession. This provision, within the scope of its operation, broadly empowers sncli trustee to act, but imposes no duty upon him to do so, and empowers the bondholders to impose none. In the broad, untrammeled enabling power thus vested in the trustee, we find the construction and scope of the term “it shall bo lawful,” as employed in this mortgage. In the second provision, relating to nonjudicial sales, we find the same thought in the words “it shall also be lawful,” but find an added duty is cast on the trustee; that is, on request of a majority of the bondholders, the trustee is compelled to sell. That this is the proper construction of this clause there can be no question. Any other reading is a distortion of words. Now, the same general idea is found in the provision for judicial proceedings. The same words, “it shall also be lawful,” are found, and serve to indicate untrammeled .enabling power vested in the trustee, while introduced by the copulative “and,” in conformity with the preceding prevision, is the act which the bondholders can compel the trustee to perform. To read the terms, “it shall also be lawful,” and, “and it shall be the duty of the trustee,” as synonymous, and simply imposing a duty on the trustee at the request of the bondholders, is to deny the first phrase the meaning it unquestionably bears in the two preceding sections. Such construction would vest the trustee with the broadest discretion to make a nonjudicial sale, where he could easily abuse the power, and shear him of all personal discretion in seeking a remedy by a judicial sale, where the court could check any abuse of discretionary power. To warrant such construction, the language should be so explicit that no other was possible. After careful consideration, it is clear to us that the provision in reference to the bondholders was an enabling power, to be exercised at their option, and not a limitation or shearing of the right of the trustee to- foreclose. We are therefore of opinion the trustee liad a right to file the present bill without a prior request by one-third of the bondholders.</p> <p>This brings us to the second question, namely, whether the Penn Plate-Glass Company or W. K Kami, the subsequent purchasers of the mortgaged premises, can question the validity of the mortgage in suit. It will be noticed that the mortgagor is not contesting the right to foreclose or the validity of the mortgage. The mortgage is assailed by the successive purchasers, to wit, Kami and the Penn Plate-Glass Company. In examining the authorities cited, we must distinguish between those bearing on the question whether a purchaser has personally assumed payment of an existing incumbrance, and those which involve the question whether he takes subject to it. The question now before us is whether the purchasers took the land incontrovertibly subjected to the lien of the prior incumbrance, t.o wit, the mortgage in suit. This is a mixed question of fact and law. The Pennsylvania Plate-Glass Company having become insolvent, the court of common pleas of Westmoreland county, by virtue of the equity powers conferred by the Pennsylvania statute,_ took jurisdiction of its assets, and possession thereof by its receiver, and enjoined W. K Kami, the execution creditor, from proceeding on his execution. The mortgage in suit was not then due or defaulted, the trustee was not made a party to the hill, and, the mortgage being a first lien and duly recorded, the property unquestionably came, to said court subjected to the lien of the mortgage. Pater the receiver presented a petition to said court to sell the mortgaged property. If the mortgage was ultra vires, was fraudulent, or was given without consideration, it was in the power of the receiver or the corporation, by appropriate remedy, to free the company’s land from such unlawful lien. Not only did he omit to do this, but he elected to sell the equity of redemption, and to expressly subject the land, in the hands of the purchaser, to the lien of the mortgage. His purpose to allow tile mortgage debt to remain charged on the land, and thus avoid requiring prospective purchasers to pay (he entire sum at once, is shown in the petition, which says: “He further suggests to the court that the interest on the $250,-000 of bonds owed by said company will fall due on July 1st next, and that there is no way within his power by which the said interest can be paid, and the bonds prevented from falling due in accordance with the terms of the mortgage. If the real estate and plant of the said company are to he sold; in the opinion of your petitioner such sale should be held some time before July 1st, for the reason that the property can then be sold subject to the lien of the first-, mortgage, and therefore a very much less sum of money -will have to be raised by the purchaser than if the plant were to be sold under foreclosure proceedings by the trustees in the mortgage. This will result in opening the field to a larger number of bidders, and will probably have the effect of realizing more money from the sale for the benefit of the creditors, and possibly of the stockholders, than could otherwise happen.” The order of sale provided: “Property to be sold subject to the lien of the first mortgage of $250,-000, to secure the payment of the bonds, which said mortgage is recorded in Westmoreland county, in Mortgage Book 43, page 1, and subject to all taxes for the year 1894.” The return cites the sale made in accordance with the order, and that the property “was sold, subject to the payment of the first mortgage and taxes for 1894, discharged of all other liens, to W. L. Kann, for the sum of $37,000.” The sale being confirmed, a receiver’s deed was made July 2, 1894, to Kann, which recited: “The above-described propertj', under the order of court aforesaid, was sold and is now conveyed by the said receiver, and was bought and is now accepted by said grantee, subjected to a mortgage made by the said Pennsylvania Plate-Glass Company to the Farmers’ Loan & Trust Company of the City of New York, dated first January, 1891, recorded in Westmoreland county in Mortgage Book No. 43, page 1, and subject, also, to all taxes for the year 1894.” It will be noted that the purchaser was the execution creditor, who was enjoined from proceeding on his execution, and who, as a party to the proceedings, must be presumed to have had notice and knowledge thereof.</p> <p>Acceptance of deed bound the grantee to its conditions. “A grantee, having accepted a conveyance and enjoyed its benefits, is bound by its provisions.” Keller v. Ashford, 133 U. S. 620, 10 Sup. Cf 494, 33 L. Ed. 667. And the language used and the acts of the parties were such as to subject the land to the mortgage burden. So far as the corporation could do, this company by its receiver, and under the supervising control of a court of equity, waived all question as to the validity of the mortgage, and elected to sell the mere equity, subjected to its lien. The title acquired, and the condition on which it was acquired, being part of the same act, the acceptance of the former ipso facto weighted it with the accompanying burden. As to the legal effect of such action on the part of the selling mortgagor and the accepting vendee, we think the vendee accepted and was bound by the status of the mortgage as the mortgagor elected to leave it. The creator of the lien, who had the right to attack it or confirm it, has, prior to the purchaser acquiring any interest whatever in the land, elected to ratify it and sell the land subject to it. If in so doing he has done what he ought not to have done, or left un-' done what he ought to have done, that concerns the vendor alone. Such act has done the vendee no harm, has caused him no loss. What right, therefore, what equity, what interest, what standing, has the purchaser to question what his vendor has done? What right has he to release the land from the burden to which the vendor has chosen to expressly subject it? What equity or whose equity would.be worked out by such a course? The question in hand is not as to the effect of a judicial sale of incumbered property, without any specification of liens in the order of sale, of which Water Co. v. De Kay, 36 N. J. Eq. 552, is an instance, but it is the case of a court exercising its power to sell specifically subject to a lien and a deed made expressly subjecting the property conveyed to a specified recorded lien. In such case the purchaser of mortgaged premises takes but an equity of redemption. He cannot question the validity of the mortgage, else he would acquire an interest in the land never conveyed to him by the vendor. Freeman v. Auld, 44 N. Y. 50; Johnson v. Thompson, 129 Mass. 398; De Wolf v. Johnson, 10 Wheat. 367, 6 L. Ed. 343; Galkins v. Copley, 29'Minn. 471, 13 N. W. 904; Tuite v. Stevens, 98 Mass. 305; Dolman v. Cook, 14 N. J. Eq. 56; Conover v. Hobart, 24 N. J. Eq. 120; Post v. Dart, 8 Paige, 639; Shufelt v. Shufelt, 9 Paige,'137; Green v. Kemp, 13 Mass. 515; Morris v. Floyd, 5 Barb. 130.</p> <p>The cases from the various state courts disclose convincing reasons in support of the principle. The federal cases are to the same effect. In Bronson v. Railroad Co., 2 Wall. 311, 17 L. Ed. 732, a third mortgage was given by a railroad company, and, in express terms, was made subject to the bonds secured by a prior second mortgage. On foreclosure proceedings under the third mortgage the road was sold. Subsequently a bill to foreclose was filed by the trustees of the second mortgage, and a company which owned the equity of redemption was made a party. An attempt was made to question the validity of the second mortgage. But the right to do so was denied. The court there say: “Even if there had been any valid objection to these bonds under the second mortgage, it was competent for the obligor to waive them; and no better proof could be furnished of the waiver than the acknowledgment of the full indebtedness, by making the subsequent security subject to it. This was a question that belonged to the obligor to determine for himself when giving the third mortgage, but, besides this, what right have those coming in under it to complain? They come in with a full notice of the acknowledgment of the indebtedness and previous lien. And especially what right have the Milwaukee & Minnesota Gonrpany to complain, who purchased the equity of redemption through Barnes, their agent, subject to the previous incumbrance of .81.000,000? They have the benefit of that incumbrance, by an abatement of that amount in the price of the purchase.” In Jerome v. McCarter, 94 IT. S. 736, 24 L. Ed. 137, the same doctrine was announced, the court saying: “Nor is there any doubt entertainable respecting the amount due under the prior mortgages. Indeed, the company is estopped by the provisions of its mortgage, of which the complainant is trustee, from asserting that the entire amount of the two «8500,000 mortgages and of the receiver’s mortgage was not outstanding when the present mortgage was made. The full indebtedness was acknowledged, by making the junior mortgagee expressly subject to it; and. as there is no evidence that any portion of it lias been paid, it is not admissible for the mortgagors or their assignees in bankruptcy to deny it.” In American Waterworks Go. v. Farmers’ Loan & Trust Co., 20 G. C. A. 133, 73 Fed. 962, the question now before us was considered by the circuit court of appeals of the Eighth eireuii. In that case the American Waterworks Company of Illinois, having given two' mortgages, sold its plant to the American Waterworks Company of New Jersey, by a deed which described the said mortgages, and recited that the property was conveyed to the grantee company, “subject to said incumbrances.” On a bill to foreclose it, the purchaser sought to attack the validity of the mortgages. ■ In holding this could not be done, the court said, “The New Jersey Company, we think, is estopped from asserting the invalidity of the mortgages executed by its predecessor, the Illinois Company, by virtue of the well-established rule that a purchaser of properly, who accepts a conveyance thereof which described incumbrances existing thereon, and expressly declares that the conveyance is made subject thereto, will not be allowed to question the validity of such incumbrances.' One who thus buys property has no right to challenge the validity of a mortgage lien existing thereon at the date of his purchase, which his grantor by the terms of his conveyance did not see fit. to challenge, bat recognized in the most formal manner, by declaring that he conveyed the property subject to the existing lien. Whether such mortgage is valid or otherwise is no concern of the purchaser; for, in contemplation of law, he only acquires an equity of redemption in the property conveyed to him — that is to say, a right to discharge the mortgage debt,--and it would be a breach of good faith, having purchased this right and nothing more, to deny the validity of the incumbrance, and seek to avoid the payment thereof on that ground. As between the grantor and grantee in a conveyance made subject to an existing mortgage, the amount of the incumbrance should be regarded as part of the purchase price left unpaid at the date of the conveyance which the grantee undertakes to pay. At all events, he impliedly agrees not to challenge the validity of the incumbrance. The authorities to this point are amply sufficient, in our opinion, to preclude fhe New Jersey Company from defending against the foreclosure on the ground that Ihe mortgage is invalid.”</p> <p>In view of these authorities, and of the inherent justice of such a course, we hold that the land having been expressly made subject to the mortgage in suit, and having been purchased and accepted by W. L. Kann, and subsequently by the Penn Plate-Glass Company, subject to the same, neither of said parties can question its validity. No valid reason, therefore, being shown to .the contrary, a decree of foreclosure will be entered. Of the right of individual bondholders to participate in the proceeds of said foreclosure we express no present opinion.</p> <p>Supplemental Bill.</p> <p>During the pendency of the original bill the improvements on the mortgaged land were burned. An insurance of some three hundred thousand dollars, placed during the pending of the original bill, was on these buildings. Thereafter the trustee filed a supplemental bill, making the insurance companies parties, alleging the existence of an equitable lien on said insurance in favor of the bondholders, and praying the appointment of a receiver to collect and hold the proceeds of the policies. Such receiver was thereafter appointed. He has collected the larger part of the insurance, and holds the same subject to the order of this court. It therefore becomes the duty of the court to pass on the question of equitable lien.</p> <p>• There were two parties to this mortgage — the executing mortgagor and the accepting trustee. Now, the liabilities or obligations created by a contract can rest originally only on a party to it. If they do not rest on some party to the contract, no obligation whatever exists. When, therefore, the Pennsylvania Plate-Glass Company in its mortgage enumerated certain acts which the trustee might, in its discretion, require to be done,' it is clear that, unless it imposed the fulfilling of such requisition upon itself, it imposed it upon no one. Indeed, the nature qf the acts which the trustee was empowered in its discretion to require shows that they were such as the mortgagor would naturally. perform. Thus, the trustee could require further instruments of conveyance or assurance. These would be executed by the mortgagor, the owner of the fee. It might require the payment of taxes. These the mortgagor, against whom they were assessed, and who was legally bound for them, would naturally be the one to pay. So with the insurance. The owner of the property, the holder of the legal title, the person who had the insurable interest, would be the one to insure. Vesting in another a right to make a requisition implies an obligation to honor such requisition when made. We are therefore of opinion that by the terms of the mortgage the mortgagor company covenanted to insure on request of the trustee. The acts of the parties were in accord with such construction.' Prior to the receivership the mortgagor company kept the property insured for the benefit of the bondholders, and its obligation so to do was recognized and enforced by the state court during the receivership, by its issue of receiver’s certificates for the purpose. These policies were in force when ICann purchased. The .proofs show they were turned over to him, and he was informed by the receiver they were outstanding. The covenant of the mortgagor to insure on request being shown, demand being made upon it for such insurance, and its failure to comply continued for six months, vesting a right of entry and possession of the trustee, we next inquire, what was the relation to this duty of a successor in the possession and title of the mortgagor to whom such possession was delivered and the equity of redemption conveyed by an order of court, and deed based thereon, in the terms set forth in the foregoing opinion bearing on tire original bill?</p> <p>It has been strongly urged that the covenant to insure does not run with the land, and that this fact governs the ease. But this, as we view it, is not the crucial question of this cause. If the insurance made by the purchaser is impressed with an equitable lien in favor of the trustee, it is not because the mortgagor’s covenant runs with the land, but because, from the nature and subject-matter of the duty assumed by the mortgagor, the terms of the deed and its acceptance, the facts and circumstances of this particular case, and the law bearing thereon, the insurance placed by the purchaser becomes so liable. To the consideration of such facts and the law thereunto appertaining, we now turn.</p> <p>In an opinion herewith filed, disposing of the original bill, we have recited at length the provisions of the mortgage, the insolvency of the mortgagor company, the receivership proceedings in the court of common pleas of West.moreland.county, the sale of the property, together with the proceedings leading, thereto, and the deed .made in pursuance .thereof. The property was purchased by W. L. Kann for the sum of $37,000, and conveyed to him by deed dated July 2, 1894. He Hold tlie property until July 1, 1895, wlien he conveyed rhe same 1o the Penn Plate-Glass Company, of which company he was president, for 883,500. His deed recites, “The above-described property is now conveyed by the said parties of the first part, and is now accepted by the said party of the second part, subject to a mortgage made by the said Pennsylvania Plate-Glass Company to (lie Farmers’ Loan & Trust Company of the City of Now York for two hundred and fifty thousand (8250,000) dollars, dated Jan. 1, 1891, recorded in Westmoreland county, in ¡Mortgage Book No. 43, page 1; being the same property which Joseph W. Stoner, receiver of the Pennsylvania Plate-Glass Company, conveyed to Wm. L. Kann by deed dated July 2, 1894, and recorded in Westmoreland county, in Heed Book 235, page 257.” The Interest on the bonded indebtedness falling due on July 1, 1894, and January 1, 1805, was paid by Kann, but that payable .July 1, 1895, was defaulted. On November 29. 1895, written demand was made by the trustee upon the mortgagor, its receiver, upon Kami and the Penn Plate-Glass Company, to insure for the benefit of the bondholders. They failed to do so. and such default continued for more than six months prior to tlie filing of the bill. On the filing of the bill the trustee moved for the appointment of a receiver to take possession. The plant was then being operated by the Penn Plate-Glass Company, a large number of persons employed, the issues of the cause and the legal rights of the parties not determined. In this aspect of the cause, and the court being satisfied that a receiver could not operate the works, it declined io appoint a receiver. The question of insurance arose during the pendency of tlie application for a receiver; and thereupon counsel for W. L. Kann and the Penn Plate-Glass Company signified their willingness to placo insurance upon the property for the benefit of the trastee if they were bound to do so, but denied the liability of said parties to do so. Subsequently they did place a. large amount of Insurance upon the property, and during the pendency of the motion filed a guaranty, signed by W. L. Kann (tlie president of (he company) and Emanuel Wertheimer (a stockholder), conditioned as follows: “That, in the event of a loss by fire of the property described in the said Pennsylvania Plate-Glass Company mortgage, that then there shall be paid out (o the said Farmers’ Loan and Trust Company, trustee, in trust for the holders of valid bonds secured by, the said mortgage, a sum equal to the total amount of such valid bonds, out of policies of insurance existing in favor of the Penn Plate-Glass Company: provided, that it shall have been finally adjudicated that the Penn Plate-Glass Company, tlie present owner of the said property, is bound or liable by anything contained In the said mortgage, or the terms of its purchase of the described mortgaged premises, to keep and maintain insurance for the benefit of the holders of bonds secured by tho said mortgage. And it is provided, further, that in the event of a loss by fire, and the insurance money payable in that event is applied to the restoration of the plant of the Penn Plate-Glass Company, bound by the said mortgage, that then this obligation shall be null and void, without prejudice to the right of the Penn Plate-Glass Company, its successors and assigns, to deny Its liability to take out, keep, and maintain policies of insurance on said plant at any time for the benefit of holders of valid bonds secured for the said mortgage, or for the trustee of said mortgage. And it is further distinctly understood and agreed that, In tlie event of partial losses and partial restorations, the amount of the insurance money applied thereto shall be a credit on the account for which we have become bound by this obligation.” After the loss it. appeared that, in the insurance placed, the Penn Plate-Glass Company and W. L. Kann. Ms president, had placed a provision therein in terms excluding the bondholders from any interest in the policies. Whatever may be the effect of such provision as between the insurance companies and the insured, we do not regard it as a material consideration here. It was an act inter alios acta. The trustee and the court had no knowledge of it. It was not, done in pursuance of any agreement, and can in no- way affect the legal and equitable status and rights of tlie parlies before the court; for, if the purchaser was bound to insure for the benefit of the trustee, equity will consider the policies as placed in fulfillment of that duty, for it considers that as done which ought to be done. Pom. Eq. Jur. §§ 3(34-877. It always implies an intention to fulfill an obligation. Id. §§ 420-422. It regards and treats tliat as done which in good conscience ought to be done. Id. § 364.</p> <p>The question of the effect- of acceptance of a deed reciting that property was conveyed subject to a specified incumbrance is discussed in many Pennsylvania cases. In some it was held a personal liability, or an assumption of the incumbrance direct to the original creditor, was created; in others, that no such direct liability to the original creditor arose, but an agreement by the vendor with his vendee to indemnify the latter against having to pay the incumbrance. To warrant a decree for an equitable lien in this case, it is sufficient to hold that, as regards the covenant to insure, there was an agreement to indemnify, though, from the nature of the subject-matter, aud the special facts and circumstances, there are grave reasons for contending that the purchaser of the property in this ease became directly liable to the trustee to insure. The covenant of the mortgagor in reference to insurance was sui generis. It was not a covenant which necessarily bound the mortgagor to'the performance of any present or future thing. It obligated insurance, it is true, but only in case it was required by the trustee. The trustee might never exercise its right. Hence, while the possible liability existed, there was no certainty it would ever attach. Prom these considerations, it is clear that when the mortgagor came to sell the property there was no exact financial value which could be put upon this covenant to insure. It could not be a subject of barter and sale, because liability under it depended wholly and solely on the will of the trustee. It was created by the mortgage, but was a matter to be performed in futuro, but at once if required. Now, with this unfulfilled, future, and indefinite liability clearly resting by the mortgage on the mortgagor at the time of the sale, what, as between the vendor and vendee, became of it when the property was sold, and the vendee, by the terms of the deed, left the purchase money, to the extent of the mortgage debt, in the land, and agreed to indemnify the vendor against it? The duty to insure was- incidental and supplemental to the mortgage debt. Its purpose -was to make it more secure and insure the payment. As was said by the supreme court of that state in Miller v. Aldrich, 31 Mich. 4,18, when speaking of the relation of a covenant to insure to the mortgage: “Chapman had bound himself to afford Miller security supplementary to and connected yñth the mortgage. The mode agreed on had reference to the mortgage buildings, and was to be of a nature to keep the mortgaged property itself so far intact, as a means of security to perpetuate the safety of the mortgagee’s interest in case the buildings should burn. This stipulation was in equity a sort of adjunct to the mortgage, and was binding on Chapman, and on all others in his shoes with notice.” Now, if by acceptance of the deed the purchaser agreed to indemnify the vendor against the mortgage debt, shall he not much more be deemed to have assumed every incident which was made a supplemental, additional, covenantal means of insuring the payment of such mortgage debt? By the authorities already cited, it is clear that by the terms of the deed this property was subjected incontrovertibly to the burden of this mortgage. It did not lié in the purchaser’s mouth to question or release the land from the burden to which he and his vendor had subjected. So much for the rights of the trustee. As between the vendee and the vendor, the authorities are clear that by the terms of the deed the vendee agreed to indemnify the vendor against liability on the mortgage. Conceding for present purposes that, on a sale under the mortgage of the premises, personal liability of the mortgagor for the bonded debt ceased, yet, in the first place, no sale has thus far taken place; and, in the second, the company is still liable for the mortgage debt by virtue of its covenant to insure, and hence the need of indemnity against such covenant to insure. Was this liability indemnified by the vendee’s acceptance of the deed? In Campbell v. Shrum, 3 Watts, 60, the leading Pennsylvania authority, it was held that acceptance of an agreement to convey land “under and subject to the payment of all the purchase money and interest now due,” by a specified article of agreement, constituted an assumption by the vendee. In Blank v. German, 5 Watts & S. 42, the principles of an “under and subject” purchase are discussed, and it is there said: “Had the defendants below purchased the property subject to the mortgage debt, the ease would have been within the principle of Campbell v. Shrum, because the price would have been estimated at the clear value less the mortgage debt; aud it may be said that so much of the price would have been virtually retained to answer it, so that the plaintiff would have answered that much, had he been compelled to pay with other funds t.hán those set apart for the purpose in the defendant’s hands. As it would have been a fraud in them to retain his money and let him be pursued for it on his bond they would have been held liable on an implied promise to apply it to the purchase intended; and it may be said in every such case that he who purchases expressly subject to an incumbrance, as between the vendor and himself, makes the debt his own, which is the principle of Campbell v. Sbrum.” In Woodward’s Appeal, 38 Pa. St. 327, the words of the deed were, “subject to the payment of §2,000,---the mortgage debt.” It was there said: “It cannot be doubted that accepting a deed from Mr. Spackman for the house and lot, expressly subject to the mortgage, was an assumption by the vendee to pay it. The debt secured by the mortgage was that of the vendor, and, if its payment was not assumed by the vendee, the express subjection of the property to it by the deed amounts to nothing. The ultimate liability is still upon the vendor, and not upon the house, and the vendee has acquired the entire ownership, without paying or being liable to pay any more than the sum of §8,750.” In Moore's Appeal, 88 Pa. St. 452, prior cases were examined by Judge Sharswood, and summed up as follows: “An examination of the cases which have been decided on the legal effect of such a clause in a conveyance shows, we think, that, unless there exist special circumstances to raise a covenant to pay the incumbrance, it amounts only to an indemnity to the vendor. In the language of the opinions, 'the vendee makes the debt his own, as between him and the vendor, for his protection.’ ”</p> <p>The question is not affected by the Pennsylvania act of June 12, 1878 (P. I¡. 205), which provides that the giantee of real estate bound by mortgage, etc., shall not be personally liable therefor, except on an express assumption, and that the use of the words “under and subject to the payment of such ground rent, mortgage, or other incumbrance,” shall not, alone, be construed as to make such grantee personally liable as aforesaid. Prior to the passage of this act, as we have seen, it was held in some cases that the under and subject. clause constituted a direct assumption of the debt to tbe bolder of it; in others, that it created a mere agreement, as between vendor and vendee, to indemnify the vendor against the incumbrance. The act was then passed, which, as we read it, provided that the under and subject clause alone should not be construed to create a personal liability for the debt (that is, a direct assumption to the owner), but left unaffected the implied covenant to indemnify, as between vendor and vendee. In other words, while the purchaser subject to such incumbrance did not assume payment of the debt to the holder, he was still bound to indemnify his vendee against the incumbrance. In Blood v. Crew-Leviek Co., 171 Pa. St. 333, 33 Atl. 316, the deed of the freehold portion, made after the passage of the act, recited it was “under and subject to the lion” of a mortgage, and contained the further provision, “It is hereby agreed between the parties to this instrument that the said party of the second part accept the title * * * subject to the payment of the mortgages heroin mentioned.” Of these provisions the court say: “We have, then, an implied covenant to indemnify, arising from the ‘under and subject to the lien of’ clause, and an express covenant in the stipulation, beginning with the words, ‘It is hereby agreed’ to pay the mortgage debt to the holder of the mortgage.”</p> <p>After careful consideration of the law applied to this case, we are of opinion that Kann and the Penn Plate-Glass Company, the subsequent purchasers of the equity of redemption, undertook to indemnify the mortgagor against liability on its covenant in the mortgage to insure. The proofs show that request to insure was duly made by the trustee upon the mortgagor and upon the subsequent purchasers, which request was not complied with. It would therefore seem that by such failure to insure there was a default, and a direct liability of the mortgagor to the trustee upon the covenant to insure; and there was a default, and a liability of the subsequent purchasers to the mortgagor upon their agreements to indemnify. Such requests were made in writing more than six months prior to the filing of the bill. Default having continued more than six months, it became such a breach as warranted the trustee in either taking possession, selling at nonjudicial sale, or maintaining foreclosure proceedings. After the bill was filed a demand upon these parties to insure was also made at bar by counsel for the trustee at the time of the application for a receiver to take possession of the mortgaged premises, as we have noted above. Under the facts it would seem that a court of equity, having jurisdiction of the subject-matter and of all parties, had power to, and, to avoid circuity of action, would, direct the purchaser to insure for the benefit of the trustee. This court had jurisdiction of' the mortgage, and therefore of the mortgagor and mortgagee. Kann and the Penn Plate-Glass Company, who had bought subject to it, were also parties. The question of insurance, with the determination of the several rights or obligations of all parties in reference thereto, were kindred and germane to the foreclosure, and therefore to the principal subject of jurisdiction. The principle is clear that, where equity jurisdiction has once rightfully attached to a controversy, it will be made effective for the purpose of complete relief, and to dispose of all incidental and germane questions. Fetter, Eq. p. 13; Winton’s Appeal, 97 Pa. St. 395; Allison’s Appeal, 77 Pa. St. 227; McGowin v. Remington, 12 Pa. St. 63; Souder’s Appeal, 57 Pa. St. 498; Socher’s Appeal, 104 Pa. St 615. The trustee having exercised its right of requiring insurance, the mortgagor being insolvent, the purchaser being in possession and enjoyment of the premises, and all parties before the court, it would seem clear to us that a court of equity, by its very nature constituted with plastic power to secure direct results, and in pursuance of its principle of avoiding circuity of action, had the right to order and decree that the purchaser should place insurance upon the property for the benefit of the trustee. A court of equity having original jurisdiction to compel specific performance of a contract to indemnify (Chamberlain v. Blue, 6 Blackf. 490; Champion v. Brown, 6 Johns. Ch. 398; Fry, Spec. Perf. [3d Am. Ed.] p. 704), its jurisdiction and power to do so in this case, where the covenant to insure was incidental to the mortgage, the original subject of jurisdiction, and where, moreover, the breach of such covenant to insure was one of the grounds warranting the foreclosure, would seem clear. That the court did not see fit, in an interlocutory stage of the case, to make such order; that in such preliminary stage it did not enter into an immediate, definite ascertainment of its right or duty to do so, — cannot affect the relative right of the parties. Mere lapse of time will not prevent a court of equity from affording relief, where there was a right to relief when the bill was filed. Wilkinson v. Torkington, 2 Younge & C. Excb. 729.</p> <p>Pending the appointment of a receiver, the purchasers agreed to and did place insurance, and the improved property has been wholly destroyed. If the insurance goes to the bondholders, it represents an avoidance of loss for that which it held as security for money paid to the mortgagor. If the purchaser holds it, it speculatively gains by the destruction of that for which it had never paid, to wit, the $250,000, representing deferred purchase money. Now, on final hearing of this case, it being clear that the purchaser was liable at any time during its pendency to the entry of an order directing that insurance be entered for the benefit of the trustee, and the purchaser having in effect placed insurance subject to the determination of the court as to its liability to do so, why should not the court on final hearing enter the decree which it could have made in an earlier stage of the case? This insurance was placed by a party to this litigation under stress of an application for the appointment of a receiver, and a consequent exclusion from possession. It is now clear that such litigant should have placed the insurance for the benefit of the trustee, and was bound to do so if thereto required by the court. When now, on final hearing, the proceeds of that insurance are before the court, — when the position of the parties has not been changed, — -why should not this court on final decree stamp with an equitable lien the proceeds of a fund which it might have created by an earlier order? The position of the parties .has not changed. To say that the trustee had an insurable interest, and could itself have insured, does not affect the case. While it could do so, it could also require the mortgagor to perform this duty. The purchasers, with full knowledge of that duty on the part of the mortgagee, took the property, and undertook to indemnify the vendor against this covenant. This they have not done. They paid some $83,000- for the property. They insured it for more than 8300.000. and now, on 1bo destruction of tiie property, which was the substantial security for 8250,000 owing the trustee, they seek to avoid payment of the 8250.000, and to realize on the 883,000 paid by them the sum of upwards Of 8300,000 in insurance upon property for which they have never paid. The allowance of such a result, under the facts and circumstances, would be highly inequitable; for it is a principle of equity that in a contest between one who, seeking to make a gain, and one who is struggling to avoid a loss, equity will lean toward him who lias actually lost, rather than to Mm who merely seeks to gain. Miller v. Aldrich, 31 Mich. 416. After careful consideration, therefore, we are of opinion that, to- the extent of all valid outstanding bonds represented by the trustee, this fund is in equity and good morals stamped with an equitable lien, and that it is the duty and right of this court to enforce it.</p>

Appeals from the Circuit Court of the United States for the Eastern District of Texas. Held: owned, or asserted herein by any of such parties or quasi parties to this cause shall be transferred to the proceeds of the sale herein directed to be made, with like but no greater effect than the same appertained to the property itself, and subject to future determination by the court, except as herein otherwise specially provided.

<p>1. Gambling Contracts — Chattel Mortgages — Validity—Bankruptcy.</p> <p>A bill of sale intended as security for a loan of money to be used in dealing in differences, in the profits of which the vendee is to participate, is invalid as against the trustee in bankruptcy of the vendor.</p> <p>2. Sales — Delivery—Evidence—Validity against Trustee in Bankruptcy.</p> <p>Where, after the execution of a bill of sale as security for a loan, tbe vendor continues in possession and does business as before until adjudicated a bankrupt, and the bill of sale is not recorded, tbe vendee cannot claim title as against the trustee in bankruptcy of the vendor.</p>

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

<p>1. Treaties — Consular Powers — Deserter from Navy of Foreign Nation.</p> <p>A seaman who has deserted from the Russian navy while under assignment to a vessel in course of, construction in this country, but which has not as yet been acquired by the Russian government, and whose crew has not yet been organized, is not a deserter from a ship of war, within article 9 of the treaty of December, 1832, between the United States and the em'pire of Russia, providing that consuls and vice consuls may require the assistance of the local authorities for the arrest and detention of deserters from the ships of war and merchant vessels of their country.</p> <p>8. Same — Evidence.</p> <p>Under article 9 of the treaty of December, 1832, between the United States and the empire of Russia, providing for the arrest and imprisonment of deserters from tlie ships of war of their country upon application of consuls and vice consuls, in writing, to the competent tribunals, and proof, by the exhibition of the registers of vessels, the rolls of the crews, or other official documents, that such individuals formed part of the crews, one who has been imprisoned as an alleged deserter from the Bussian navy on application of a Bussian vice consul will be released on habeas corpus, where no register or roll of the crew, or other official document substantiating the vice consul’s averment, is produced.</p>

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

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

<p>Salvage — Amount of Award.</p> <p>The Penobscot, a schooner, valued, with her cargo, at $11,750, was on a shoal at the mouth of the (’ape Fear river, where she had been for two hours in a position of imminent danger, the wind and tide driving her further ashore; and the testimony showed that, without assistance, site would undoubtedly have been lost. Her crew had hoisted a signal of distress, and were preparing to abandon her. There was no one near, able to render assistance, except libelant, who was owner and master of a passenger steamer worth $20,000 or $25,000, lying at a wharf within sight. Seeing ihe danger of the schooner and her signal, he landed his passengers and went io her relief, at considerable risk to his vessel and crew, and, after half an hour’s work, succeeded in pulling her off the bar. and towed her io Wilmington. Held, that the services performed were not of a low order of merit, to he compensated by payment for the actual work done, but that libelant and his crew were entitled to a salvage award of $2,000. i 1</p>

<p>Circuit Court of Appeals — Jurisdiction.</p> <p>The circuit court of appeals is without jurisdiction to review the judgment of a circuit court dismissing a suit on a motion challenging its jurisdiction.</p>

<p>1. Circuit Court — Nonresident Corporation — Jurisdiction—Bill—Apparent Defect — Remedy.</p> <p>Where the circuit court is without jurisdiction, owing to the nonresidence in the district of a corporation defendant, and this fact is apparent from the face of the bill, advantage may be taken of the defect by a motion to vacate a decree entered pro confesso.</p> <p>2. Same — Service—Resident Director — Sufficiency.</p> <p>Act Cong. 1887, as amended by Act 1888, prohibits suit in the circuit court against any person, except in the district of which he is an inhabitant, and, where jurisdiction is founded on diverse citizenship, requires suits to be brought only in the district of the residence of plaintiff or defendant. Act 1872, § 13, as amended by Act 1875, § 8, provides that when, in a suit to enforcte a claim to, or remove a cloud or incumbrance from, real or personal property in the district, a defendant shall not be an inhabitant thereof, the court may make an order directing him to appear and plead. Held, in a suit by nonresident complainants, that jurisdiction of a defendant corporation not resident in the district where suit was brought was not acquired by service on its resident director, it not being alleged that the property in controversy was within the district.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This case is brought here by an appeal taken by the defendants in the court below from an order there entered granting an injunction upon a bill fifed by iho East Tennessee Telephone Company for the purpose of restraining said defendants from making or maintaining connections by means of wires, switches, or other devices with the wires or other property of the complainant. The facis material to the question involved In the controversy are these: About 18 years ago the East Tennessee Telephone Company, a corpolation organized under the laws of Kentucky, established in tlie city of Knoxville, Tenn.. and other near-by localities, a telephone system for the use of the patrons it secured there. This system was of the usual kind, operated by wires running to the telephones located in the offices or residences of its patrons, respectively. The telephones, wires, and all oilier apparatus employed for the purpose were and continued to be the property of the. East Tennessee Telephone Company. The use of the telephone was granted to the patron, and the service of tlie company’s system secured to him, at a certain fixed rental or rate. Four or five years ago the defendant, the People’s Telephone & Telegraph Company was incorporated under the laws of Tennessee for the purpose, among others, of furnishing telephone conveniences to people in the same territory, and this company has become a keen competitor with the East Tennessee Telephone Company for the patronage of the public. Many persons used both systems, and some time before the filing of the bill the appellant began selling and assisting those of its patrons using botli telephones in installing desk telephones, with switches and wires connecting the lines of both companies in such manner as that with one telephone the user could transmit and receive messages through either system at his pleasure. The appellee complained of this, but the appellant, claiming the right to do what it was doing, persisted, and indicated its purpose to continue its practice. Thereupon the complainant filed this bill, and moved for an injunction. An order to show cause was made, and the defendants filed an answer and accompanying affidavits in opposition. Upon tlie hearing Judge Clark granted the preliminary injunction prayed, restraining the defendants from installing or maintaining connection by the defendants with the property of the complainant.</p>

<p>1. Carriers — State Regulation of Rates — Validity of Kentucky Statute</p> <p>The Kentucky act of March. 10, 1900, relating to the charging of extortionate rates by railroads, provides that upon complaint to the state railroad commission that any railroad company has charged extortionate rates, or when the commission has reason to believe such rates are being charged, it shall be its duty to hear and determine the matter as speedily as possible, giving notice of the time and place of hearing to the company by mailing a letter to an officer or employs thereof; that the commission shall hear such statements, arguments, and evidence offered by the parties as it shall deem relevant, and may take depositions; that, if the commission shall determine that the company has been guilty of extortion, it shall fix a just and reasonable rate which said company may charge thereafter for like services, which rate shall be entered in its order book, and of which the company shall be given notice; that if the company, its officer, agent, or employé, shall thereafter charge a greater rate than that so fixed, such company, officer, agent, or employé shall be guilty of extortion, and shall be fined as provided in the act, upon prosecution by indictment in the courts of the state, which are' given jurisdiction of the offense. Under the constitution and laws of the state, the railroad commission is an administrative body, without judicial powers, and -without power, other than that given in the act, to "fix rates. Held, that such act is in violation of the constitution of the United States, conceding' that it was not. intended to apply, as it does by its terms, to interstate as well as to local rates — First, because any order made by the commission thereunder fixing a rate is not uniform in its operation throughout the state, but applies to one company alone, and thus denies to such company the equal protection of the laws; second, because any change in a rate established by a railroad company having been made to depend on a precedent decision that it has been guilty"of extortion, and to follow such decision as a penalty, such company is entitled to a judicial determination of that question, and such determination by a nonjudicial body, left to its own discretion as to what shall constitute extortion, and authorized to act merely upon a notice sent by mail to any employe of the company, does not constitute due process of law, nor does the act give the, courts, in subsequent criminal proceedings instituted thereunder, any power to review such decision, or to determine whether the rate fixed by the commission is reasonable and just.</p> <p>S. Same.</p> <p>Such act Is further Invalid as to the Louisville & Nashville Railroad Company, whose charter fixes maximum rates which it may charge, because, without attempting to repeal such charter, it empowers the railroad commission to subject the company to criminal prosecution and heavy punishment for charging the rates therein authorized.</p> <p>3. Samk.</p> <p>Such act. in attempting to confer judicial powers on the railroad commission. is also In violation of the constitution of Kentucky (sections 27, 28), which provides that the powers of the government shall be divided into three separate departments, — the legislative, the executive, and the judicial, — and each of them be confined to a separate body of magistracy, and that “no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others.”</p> <p>4 Federal Courts — PitEhniiN.VRY Injunction against Enforcement or State Statute.</p> <p>Where a state statute, by methods plainly in violation of the constitution of the United States, authorizes a railroad commission to fix a rate of charge for any single railroad company, and the criminal prosecution and punishment by line, or imprisonment of the company or any of Its officers or employes for making a charge in excess of such rate, a. federal court may properly grant a preliminary injunction against the enforcement of .such statute until its validity has been finally determined.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio.</p> <p>On the 7th. day of July, 1899, there was pending in the circuit court for the Southern district of Ohio, in the Eastern division thereof, a suit in equity, wherein the Metropolitan Trust Company was complainant, and the Columbus. Sandusky & Hocking Railroad Company was defendant, of which latter company Samuel M. Felton had prior to the above-mentioned date been' appointed receiver, and was at the said date acting as such. On the day above mentioned the said Felton, as receiver, filed an intervening petition in that suit against the Lake Shore & Michigan Southern Railway Company and the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, the grounds and objects of which are shown by a copy of the said petition, here set forth (omitting- title of the court and canse):</p> <p>“To the Judges of tho Circuit Court of the United States for the Southern District of Ohio, Eastern Division: Your petitioner, S. M. Felton, receiver, shows to the court: Among tho property in his possession as such receiver by virtue of his appointment by this court in this case on June 1, 1897, is 1he raii■oad track on Railroad street, in the city of Sandusky, Ohio, which extends .‘rom the easterly to the westerly ends of said street, the undivided half interest in which your petitioner acquired by deed executed to him by the Bnltinore & Ohio' Railroad Company, and tlio receivers of said company, pursuant o the order of this court in that behalf entered in the ease of the Mercantile .'rust Co. v. Baltimore & Ohio Railroad 'Company (No. 757) on April 22, 1898. ’hat said Lake Shore & Michigan Southern Railway Company and said devenid, Cincinnati, Chicago & St. Louis Railway Company, without any lawful glit, and notwithstanding your petitioner’s repeated protests to them, now are, d for some time past have been, using said track, running their engines and irs thereon and thereover. That said companies get access to said track with eir engines and ears over a connection therewith which it is necessary for rar petitioner to use. so that your petitioner cannot forcibly prevent their id unlawful use of said track without clanger to life and property. Your titioner therefore prays that said companies be required to show cause why they should not be committed for contempt for entering upon and using said property and operating their engines and ears thereover, and that meantime they may be enjoined therefrom, and that your petitioner may have such order and relief as may be proper. S. M. Felton.</p> <p>“State of Ohio,- Hamilton County — ss.: S. M. Felton, being first duly sworn, says that he believes the allegations of his foregoing petition to be true. Sworn to before me, and subscribed in my presence, this 5th day of July, 1899.</p> <p>“[Seal.] • S. E, Hibbard, Notary Public,</p> <p>“Hamilton County, Ohio.”</p> <p>The respondents therein mentioned were not parties to the original suit, but they appeared and answered the petition. Their answers were separate, but were identical. A copy thereof (omitting title of the court and cause, except the name of the answering company in the several answers) is as follows:</p> <p>“The Take Shore & Michigan Southern Railway Company, for answer to the petition of S. M. Felton, receiver herein, admits the acquirement by said receiver of an undivided one-half interest in the track named in- the petition, as averred therein, and that it has been, and still is, using said track. But this defendant avers that it is making such use under and by virtue of an agreement made by it with the Baltimore & Ohio Railroad Company before such acquisition by said receiver of an interest therein, and while said Baltimore & Ohio Railroad Company was the sole owner thereof, with full power to make such agreement. By said agreement said Baltimore & Ohio Railroad Company pays to this defendant $900 per annum for the use of this defendant’s track in Railroad street, in the city of Sandusky, Ohio, parallel with the track in the petition described; and this defendant pays to said Baltimore & Ohio Railroad Company fifty cents per car, loaded or empty, for all of its cars which use said track in the petition described, one-half of which trackage charge this defendant is advised and believes, and so avers, said Baltimore & Ohio Railroad Company has paid to said receiver since his acquirement of an interest in the track in the petition described. This defendant denies that its use of said track is improper or unlawful, and prays that its interests may be protected.”</p> <p>This answer was sworn to by one of the solicitors for the defendant. The jurat states that he says that he “is the attorney of the above-named defendant, and that all and singular the statements of the foregoing answer are true, as he verily believes.”</p> <p>Subsequently, the court deeming it necessary that the Baltimore & Ohio Railroad Company should be made a party to the proceeding, leave to the receiver was given .for that purpose. The last-named company appeared, and adopted the answer which the other two companies had filed. Replication to these answers was duly filed. Thereupon a motion for a preliminary injunction, Ijased upon the showing made by the pleadings, was brought on for hearing. The court, being of opinion that sufficient ground for an injunction was shown, granted an order whereby the defendants were enjoined from entering upon or using said track unless certain privileges on their own tracks should be accorded by the defendants to the petitioner. For the present purpose, it is not necessary to state the privileges mentioned in the proviso, as they are not material to the decision. From this order the several defendants to the intervening petition have appealed, and they assign the following grounds for error: “First, because, upon the face of the intervening petition of S. M. Felton, receiver, filed herein against this defendant, it appeared that the said S. M. Felton was not entitled to relief by injunction; second, because, upon the face of the said record and proceedings, it appeared that S. M. Felton was not entitled to relief by injunction, preliminary or final; third, because no case was made upon the same record or proceedings for a preliminary injunction.”</p>

James T. Hurst, a resident of Wayne county, Mich., had conducted a large lumber business for some years preceding the transaction hereinafter recited, extending over the states of Minnesota, and Michigan and the dominion of Canada.

<p>1. Evidence — Judicial Notice — Regulations of Lighthouse Board.</p> <p>The courts of admiralty will take judicial notice of the regulations of the lighthouse board, made upon the, authority of an act of congress, and prescribing the number and kinds of lights to be placed on the draws of bridges across navigable streams, although they are neither pleaded nor offered in evidence.</p> <p>2. Negligence — Lights on Draavbridge — Requirements of Statute.</p> <p>Under the regulations of the lighthouse board, requiring the suspension of lights on drawbridges, so that three red lights will be seen up and down stream when the draw is closed, and three green lights Avhen it is open, the failure of a city to maintain such lights on a draudiridge erected by it is such negligence as will render it liable for damages to a steamer resulting from such omission.</p> <p>3. Same— Contributory Negligence — Damages.</p> <p>Where a city is negligent in failing to maintain the lights required by law on a drawbridge, and the pilot and captain of a steamer are also negligent in attempting to take their boat through the draw before they are assured that it is fully swung, the damages sustained should be diAdded.</p>

A charter was issued by the state of West Virginia on April 18, 1881, to the Wheeling, Parkersburg & Charleston Railway Company, for the purpose of constructing and operating a railroad from the city of Wheeling to a point at or near the city of Charleston, in the same state: the name of this company being afterwards changed, hy proper proceedings, to the Ohio River Railroad Company.

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

<p>At Law. On motion of defendants for judgment on the ground of misjoinder of parties defendant.</p>

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

<p>1. Agreed Statement of Facts — Admission’ in Evidence.</p> <p>Where parties agree to a statement of fads to which is attached, as an exhibit, the findings and decision oí a referee thereon, made in pursuance of a reference by the parties, and the statement is signed as approved by counsel for both, an objection to the admission of the exhibit in evidenee is not tenable, especially as tbe bill of exceptions stows that the statement was offered, by consent.</p> <p>2. Objection to Evidence — Failure to Assign Ground — Effect.</p> <p>Where no reason or ground is assigned for an objection to evidence, and none is so manifest that the trial court would not fail to understand it, the objection is properly overruled.</p> <p>3. Assignment of Error — Particularity—Sufficiency.</p> <p>O. O.. A. Rule 11 (31 O. O. A. exlvi., 90 Fed. exlvi.) requires that assignments of error shall set out separately and particularly each error asserted and intended to be urged. Held, that mere general complaints that judgment was rendered for the wrong party are not a compliance with the rule, and, in the absence of plain error in the record, will he disregarded.</p> <p>4. Sale — Deferred Payment — Marketable Title-Sufficiency.</p> <p>Where by the literal terms of a contract, on reference, by the buyer and seller of a license to use a patent, a deferred payment is to be made only in the event of the seller’s being able to show a perfect legal title to the patent, but the context and the circumstances show that a good, sound title was meant, and the referee finds that the seller has a good marketable title, It is not error to render judgment for the seller in the amount of the payment; such finding showing a substantial compliance with the agreement for reference.</p> <p>5. Overruling Motion for New Trial — Review on Writ of Error.</p> <p>Error in overruling a motion for a new trial cannot he considered on writ of error.</p>

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

<p>1. Evidence — Privilege or Witnesses— Exposure to Criminad Prosecution —Bankruftcy Proceedings.</p> <p>Under Const. Amend. 5, providing that no person shall bo compelled in any criminal case to be a witness against himself, a, witness in proceedings before a referee in bankruptcy cannot be compelled to testify to the consideration given for certain hank checks made to the witness by a bankrupt, where he stales that his answers might tend to criminate him, and 1he evident .purpose of the examination is to show that the checks were given for gambling debts, the receipt of which, under the laws of the state, is a criminal offense.</p> <p>2. Same — Immunity from Prosecution.</p> <p>Bankr. Act, § 7a, subd. 9. providing that no testimony given by the bankrupt shall he offered in evidence against him in any criminal proceeding, even if applicable in favor of a witness other than the hanknipt in bankruptcy proceedings, is not sufficient to secure the full protection intended to be afforded a witness under Const. Amend. 5, providing that no person shall be compelled in any criminal case to be a witness against himself.</p>

<p>In Bankruptcy.!</p>

<p>In Bankruptcy. Sur report of commissioner.</p>

<p>1. Internal Revenue — Tax on Manufactured Tobacco — Construction of . War Revenue Act.</p> <p>A manufacturer of tobacco after April 14, 1898, placed stamps on a quantity of manufactured tobacco at the existing rate of tax of 6 cents per pound; and suck tobacco remained in its factory at the time of the passage of the war revenue act of June 13, 1898, by section 3 of which the tax was increased to 12 cents per pound, with a proviso that upon articles manufactured and removed from the factory before the passage of the act, bearing tax stamps affixed and canceled subsequent to April 14th and which articles were at the time of the passage of the act held and intended for sale, a tax equal to one-half the difference between the tax paid and that levied by the act should be levied and eolléeted. Meld, that the affixing and canceling of stamps thereon amounted constructively to a removal of such tobacco for sale, within the meaning of the new act, and that it was subject only to an additional tax of 3 cents per pound, the same as could have been assessed upon it had it been physically removed from the factory.</p> <p>2. Same — Assessment of Additional Tax.</p> <p>The collector having assessed and collected an additional tax of 6 cents per pound on such tobacco while it still remained in the factory, whereas it was not subject to the payment of any tax until its removal for consumption or sale, his action amounted to a finding of the jurisdictional fact that it had been removed and was being held for sale, which, as against the government, fixed its status for taxation under the act, and rendered the collection of any additional tax above 3 cents per pound illegal, and such excess recoverable by the taxpayer.</p>

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

<p>1. Patents — Construction of Claims.</p> <p>Where an article of manufacture, as described in the claim of a patent therefor, does not differ from the same article as previously known In the art, the only novelty being in the process of manufacture as described in the specification, such process is an essential element ol' the invention, and the specification must bo read as a part of the claim.</p> <p>(. Same — Infringement—Metallic Screening.</p> <p>The Golding patent, No. 297,382, for an improvement in slashed metallic screening, while for a product as an article of manufacture, is limited to the article described in the claim, when made by the process described in the specification, and is not infringed unless such process is employed.</p>

In Equity. Suit for infringement of a patent. On final hearing. This bill in equity is based upon the infringement of claims 1, 2, 9, 10, 11, 12, 14, 17, and 27 of letters patent No. 478,218, applied for June 26, 1891, and issued on July 5, 1892, to George Martin Brill, for an improvement in car trucks.

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

<p>1. Patents — Contributory Infringement.</p> <p>One who makes and offers for sale to the public an article adapted for use in a patented process, with the intent and purpose that it shall be so used, and which is so used by purchasers, is liable as a contributory infringer.</p> <p>2. Same — Anticipation—Measure of Proof.</p> <p>One who alleges anticipation to defeat a patent must establish his claim by clear and cogent evidence.</p> <p>3. Same — Process of Filtering Beer.</p> <p>The Slockkeim patent, No. 378,379, for a process of filtering beer, was not anticipated by the King apparatus for straining beer in racking off, for which an application for a patent was made which did not recognize or describe the principle of keeping the beer during filtration under both forward and back pressure to prevent the escape of the gas, which is an essential feature of the Stockheim process.</p> <p>4 Sa me — Infrin g kmknt.</p> <p>The manufacture and sale of a filter differing in no essential particular from that described in the Stockheim patent, and adapted for use and used in the process of such patent, held contributory infringement, against which a preliminary injunction should be granted.</p>

<p>Patents — Anticipation—Stork- Sbrvioe Apparatus.</p> <p>The Goodfellow patent, No. 493,(521, for a store-service apparatus, claims 1, 2, 3, 5, and 13, covering the method of propelling a carrier along a way or track by means of a flexible cord or device running along the track under the upper wheels of the carrier and over pulleys above, or over the under wheels of the carrier and under pulleys below at each end, which by being pulled over the pulleys separates itself from the way, causing the carrier to move from one end of the way to the other, were not anticipated, and are valid.</p>

<p>Patents — Invention—Steam Packing.</p> <p>The Perry patent, No. 462,278, for a steam-joint packing, consisting of a ring made of a piece of hollow tubing, having an outer covering of rubber, and the ends united by a dowel-pin, is void for lack of invention.</p>

<p>1. Patents — Construction of Claims.</p> <p>Definitions and admissions made by an applicant for a patent in the course of the proceedings in the patent office, in order to avoid the state of the art as adduced by the office, by differentiating his invention from those disclosed by the references, are always binding upon him in the subsequent construction of his patent.</p> <p>2. Same — Infringement—Fireproof Material.</p> <p>The Lantzke patent, No. 024,828, for improvements in fireproofing material, is limited by the prior art to material produced in the precise manner described, which, as shown by the claims of the patent and by the statements made by the patentee during the progress of the application, in the patent office, has for its characteristic feature the use of a middle layer or core of permeable fabric, saturated with an incombustible hardening solution, to either side of which sheets of asbestos are fastened by being pressed on before the solution hardens. As so construed, held not infringed by material formed by pressing together two sheets of asbestos, one of which is coated with the solution, which was well known and used in the art prior to the patent.</p>

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

<p>In Admiralty. Libel to recover pilotage.</p>

<p>Pilots — Obligation to Take Pilot — Barge in Tow.</p> <p>A barge without motive power, in tow of a tug having a regular pilot on hoard, is not within the provisions of Code N. C. if 3480, 3481, 3519, requiring vessels to employ a pilot in crossing the bar at the mouth of Cape Fear river, and passing up and down the river, and providing for a forfeiture where any one not being licensed acts as pilot in such ease. In contemplation of law, the tug and tow are one vessel, and the pilot of the tug is the pilot of the voyage.</p>

<p>1. Collision — Distribution of Damages between Vessel and Cargo — Hart-er Act.</p> <p>The whole object of the Harter act is to modify the relations previously existing between the vessel and her cargo, and it does not affect the relative rights of vessel and cargo owners as claimants against a second vessel for damages arising from collision. •</p> <p>3. Same — Right to Priority.</p> <p>Where both vessels were in fault for a collision in which one was sunk, with her cargo, the cargo owner has the superior lien upon the fund available for reparation, in the absence of contract affecting such right.</p> <p>3. Same — Loss of Cargo — Subrogation of Vessel Owner to Insurance.</p> <p>Where, In a suit for limitation of liability arising out of a collision which resulted in the loss of the second vessel and her cargo, such vessel, although adjudged equally in fault, claimed and was awarded exemption from liability to her cargo owners under the provision of the Harter act, her owners have no right to be subrogated to the claims of the cargo owners against the insurer of the cargo, under the “benefit of insurance” clause of the bills of lading, because the court awards the entire fund for distribution to the cargo owners in preference to the vessel owners on account of the vessel’s contributing fault, on the theory that such action necessarily imposed on the vessel the liability for the loss of cargo'. In such case the payment of claims entitled to legal preference, as permitted by admiralty rule 55, cannot be said to take anything from the holders of inferior claims, who have no interest in the fund until preferred creditors have been satisfied.</p> <p>4. Same — Total Loss of Vessel — Measure of Damages.</p> <p>Where a vessel is sunk and totally lost in a collision, and her full value is awarded her owners as damages, they are not entitled, in addition, to recover the amount she would have earned under an unexpired charter.</p> <p>5. Same — Priority in Distribution of Damages — Claims of Crew for Loss of Effects.</p> <p>The negligence of a ship is so far imputable to her officers and crew that they are entitled to recover from another vessel but half the damages sustained in the loss of their effects as the result of a collision for which their own vessel was equally in fault, and their claims therefor are subordinate to those of the cargo owners.</p> <p>6. Same — Claim of Charterer for Loss of Freight.</p> <p>The claim of a charterer having full control and management of a vessel, and supplying her master and crew, for loss of freight resulting from a collision, for which such vessel was adjudged equally in fault, against the fund arising from the sale or bonding of the other offending vessel in proceedings instituted by her owners for limitation of liability, stands on the same footing as that of the owners of the chartered vessel, and is subordinate to that of the owners of her cargo.</p>

<p>1. Circuit Court — Jurisdiction—Amount in Controversy — Allegation—Denial — Absence of Evidence — Effect.</p> <p>In the absence of a plea to the jurisdiction of the circuit court, an allegation in ihe bill that the amount of damage exceeds $2,000, though denied by answer, is sufficient, in the absence of proof, to give the court jurisdiction, and hence a finding of the amount of damage is unnecessary to sustain the jurisdiction.</p> <p>g. Eminent Domain — Statute—Extraterritorial Force.</p> <p>A statute of one state to confer the power of condemning lands situated in another state for public purposes would be ineffective.</p> <p>3. Riparian Owner — Ordinary Plow of Water — Nature of Rioirr.</p> <p>The right of a riparian proprietor on a nonnavigablo stream to the use of its ordinary flow of wafer, undiminished by an unreasonable use by a proprietor above him, is not an easement or appurtenance, but is inseparably annexed to the soil, and is parcel of the land itself.</p> <p><L Same — Diversion of Water — Public Use — Absence of Compensation— Continuing Wrong.</p> <p>The seizure and permanent diversion of the waters of a stream by a municipal corporation without compensation to the lower owner is a continuing wrong, which is not excused by the fact that the appropriation is for the irablic benefit.</p> <p>5. Same — Injunction—Propriety of Remedy.</p> <p>Injunction to prevent a permanent and unauthorized seizure and diversion of the waters of a stream is the appropriate and effective remedy: the legal remedy of action for damages being inadequate, in providing for the recovery of only such damage as has already accrued, and hence necessitating a multiplicity of suits.</p> <p>6. Same — Absence of Serious Damage.</p> <p>The right of a riparian owner to an injunction to restrain the unauthorized diversion of the waters of a stream exists independently of the fact that his damage from the diversion is not of large amount or serious character.</p> <p>7. Same — Compensation to Owner — Alternative Decree.</p> <p>Though, where the defendant has committed a permanent injury to property, without pretense of a right to take and retain it, a court of equity, in enjoining the trespass, will not render a decree in the alternative providing that unless compensation be made to the injured owner the injunction will issue, yet the issuance of the order may be properly delayed to allow the parties to agree between themselves as to compensation.</p>

<p>Appeal from trie Circuit Court of the United States for the Western. Division of the Western District of Tennessee.</p> <p>On motion to amend mandate.</p>

Appeals from tbe Circuit Court of the United States for the District of South Dakota. These four suits were instituted by the appellee, Sweeney, to foreclose four certain and different mechanics’ liens for powder and explosives furnished by him to subcontractors for the construction of certain sections of the railroad of the appellant the Grand Island & Wyoming Central Railroad Company.

<p>Taxation — Liability of Half-Breeds to State Laws.</p> <p>One born of a white father and an Indian mother, and who is a recognized member of the tribe of Indians to which his mother belongs, is an Indian, and not subject to taxation under the laws of the state in which he resides.</p>

In Equity. On rule to show cause why a restraining order previously granted should not be continued.

<p>Constitutional Law — Street Improvement — Assessment against Abutting Pkopbbty — Benefits—City Ohaktek.</p> <p>The provisions of a city charter authorizing the common council of the city to contract for grading and paving its streets, and to assess the expense thereof, except that of cross walks and intersections of cross streets, against the abutting property, according to tbe extent of frontage on the street improved, without any reference to the question of benefits, and providing for notice only by publication in the newspapers of the completion of the assessment roll, and that it will remain in the office of the assessors for inspection, but providing no tribunal having authority to reduce the assessments or to review the amount thereof, except for the purpose of ascertaining if they are mathematically correct, are in conflict with the fourteenth amendment to the constitution of the United States, providing that no state shall deprive any person of his property without due process of law.</p>

<p>In Equity. On motion for preliminary injunction.</p>

In Equity. On demurrer to bill. William L. Bidwell, of Connecticut, who sues in his own right, and Franklin" E. Woodford, of New York, as executor of Emerson A. Phelps, late of Connecticut, have brought this bill against W. A. Huff, individually and as trustee, against the mayor and council of the city of Macon, and against Edison Huff and A. P. Herrington, all of whom are citizens of this district.

<p>In Equity. On motion for preliminary injunction.</p>

<p>On Order to Show Cause for Contempt.</p>

<p>Í. Public Lands — Railroad Grants — Construction.</p> <p>Under 13 Stat. 365, granting to the Northern Pacific Railroad Company every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of said railroad line, as said company might adopt, whenever on the line thereof the United States had full title, not reserved, sold, granted, or otherwise appropriated, and free from exemption or other claims or rights at the time the line of said railroad was definitely fixed and a plat thereof filed in the office of the commissioner of the general land office, the grant to the railroad eomi>any attached to all such lands, within the limits designated, as were not sold, or subject to sale, entry, or pre-emption right at the time the general route of defendant’s road became fixed by the definite location thereof.</p> <p>2. Same — Lands Excepted — Constbuotion.</p> <p>The fact that certain lands had been filed upon in the proper land office of the United States before defendant’s railroad was definitely fixed opposite thereto is not sufficient to Include them in the lands excepted from the grant to the Northern Pacific Railroad Company, under 13 Stat. 365, and described as not reserved, sold, granted, or otherwise approi>riated, and free from pre-emption or other claims or rights at the time the line of said road was definitely fixed, if proof of occupancy of and payment for said land was not made within 30 months after the date of such filing.</p>

Motions on behalf of defendant the National Nickel Company and one Sylvester F. Field, who claims to he a judgment creditor of defendant, having the right of redemption, to vacate a sale made by the special master, and to set aside the order of the court confirming the sale.

<p>Motion to Direct Verdict.</p>

<p>Action under the Tucker act, tried ky the court without a jury.</p> <p>The following are the findings of fact:</p> <p>I.</p> <p>Claimant, a citizen of fhe United States, was, on May 19, 1891, appointed an assistant inspector of steam vessels for the. district of New York, under section 4414, Rev. St. U. S., with compensation at the rate of $2,000 per annum. He took and forwarded the oath required by law. and while holding such office of assistant inspector of steam vessels he was appointed special inspector of foreign steam vessels. Said appointment reads as follows:.</p> <p>II.</p> <p>“Division of Appointment».</p> <p>“Treasury Department, Office of the Secretary,</p> <p>“Washington, D. C., May 19, 1891.</p> <p>“Mr. John Miller, New' York City, N. Y. — Sir: Under the provisions of an act of congress approved August 7th, 1882, entitled ‘An act to amend section 4400 of title 52 of the Revised Statutes of the United States, concerning the regulations of steam vessels,’ yon are hereby appointed to serve, in connection with your appointment as assistant inspector of steam vessels, as a special-inspector of foreign steam vessels, without additional compensation, for the port of New York, N. Y.; the appointment to take effect from date of oath.</p> <p>“[Signed] Respectfully yours, Charles Foster, Secretary.”</p> <p>III.</p> <p>Thereupon the claimant took the oath therein referred to, which was in the usual form of an oath of office, and transmitted fhe same to the secretary of the treasury. He was not required to, and he did not, give nor offer to give the bond prescribed by statute for the office of special inspector of foreign steam vessels. From the time of taking the oath aforesaid until March 1, 1895, the claimant performed whatever duties were required of him as special inspector of foreign steam vessels at said port.</p> <p>IV.</p> <p>By letter'dated November 20, 1893, from the secretary of the treasury, under the provisions of section 4414 of the Kevised Statutes of the United States, the claimant was appointed an assistant inspector of boilers of steam vessels for the district of New York, with compensation at the rate of two thousand dollars ($2,000) per annum. Subsequently claimant accepted said appointment, and duly qualified by taking the prescribed path of office, and by forwarding the same to the treasury department: No bond was required. He then and there entered upon the discharge of his duties, and continued to perform the same until the appointment of his successor on October 8, 1894.</p> <p>V.</p> <p>On or about November 20, 1898, claimant received from the secretary of the treasury a communication, of which the following is a copy:.</p> <p>“Division of Appointments.</p> <p>“Treasury Department, Office of the Secretary, ■</p> <p>“Washington, D. C., November 20, 1893.</p> <p>“Mr. John Miller, 73 Henry Street, Brooklyn, N. Y. — Sir: Under the provisions of an act of congress approved August 7, 1882, entitled ‘An act to amend section 4400 of title 52 of the Kevised Statutes of the United States concerning the regulation of steam vessels,’ you are hereby appointed to serve, in connection with your appointment as assistant inspector of boilers of steam vessels, as a special inspector of foreign steam vessels, without additional compensation, for the district of New York; the appointment to take effect from date of oath, which must not be administered before December 1, 1S93.</p> <p>“(Signed] Kespeetfully yours, W. E. Curtis, Acting Secretary.”</p> <p>VI.</p> <p>On or about the 20th day of November, 1893, the claimant took the oath above referred to, which was in the usual form of an oath of office, and transmitted the same to the secretary of the treasury on that date. He was not required to nor did he give or offer to give the bond prescribed by statute for the office of special inspector of foreign steam vessels. From the time of taking the oath of office the claimant performed whatever duties were required of him as special inspector of foreign steam vessels.</p> <p>VII.</p> <p>On or about September 8, 1894, claimant received from the secretary of the treasury a communication, of which the following is a copy:</p> <p>“Division of Appointments.</p> <p>“Treasury Department, Office of the Secretary, '</p> <p>“Washington, D. O., Sept. 7, 1894.</p> <p>“Mr. John Miller, Assistant Inspector of Boilers of Steam Vessels, New , York, N. Y. — Sir: Your services as assistant inspector of boilers of steam .vessels at the port of New York, Second district, are hereby discontinued, to take effect upon the appointment and qualification of your successor.</p> <p>“[Signed] Kespeetfully yours, J. G. Carlisle, Secretary.”</p> <p>VIII.</p> <p>On or about October 9, 1894, the claimant in like manner received the following communication:</p> <p>“Division of Appointments.</p> <p>“Treasury Department, Office of the Secretary,</p> <p>“Washington, D. C., October 8, 1864.</p> <p>“Mr. John Miller, Assistant Inspector of Boilers of Steam Vessels, New York, N. Y. — Sir: Referring to department letter of the 7th ultimo, you are hereby informed that, a successor having been appointed, your services as assistant inspector of boilers of steam vessels for the port of New York will not be required from and after the receipt of this communication.</p> <p>“[Signed] Respectfully yours. J. G. Carlisle, Secretary.”</p> <p>IX.</p> <p>The law which created the office of special inspector of steam vessels was repealed March 1, 1895.</p> <p>X.</p> <p>The claimant had not been paid any of the salary attached by law to such office, the amounts due therefor being $2,000, with interest from May 25, 1892; $2,000, with interest from May 25, 1893; $2,000, with interest from May 25, 1894; $1,555, with interest from March, 1895.</p>

<p>1. Master and Servant — Injury to Employe — Negligence—Pleading.</p> <p>A railroad company is liable for injuries sustained by one of its servants employed as a boiler maker and repairer of ironwork on locomotives, through the breaking of a running board which the employe was directed by the company’s foreman to stand upon for the purpose of making repairs to a locomotive, where the company knew it was in an unsafe condition, and failed to inform the servant thereof.</p> <p>2. Same — Liability for Acts of Foreman.</p> <p>The duty' of exercising reasonable care in furnishing a servant a reasonably safe place to work being that of the master, a railroad company cannot delegate this duty to a foreman without placing such subordinate in its own position, and binding- him to perform the same duties devolving upon the company.</p>

The judgment challenged by this writ of error directs the city of Tittle Bock, its mayor, clerk, and city council, the plaintiffs in error, to issue and deliver to the relator YV.

<p>1. Insurance — Representation—Warranty.</p> <p>A representation in insurance is a statement by the applicant to the insurer regarding a fact material to the proposed insurance, and it must lie not only false, but fraudulent, to defeat the policy. A warranty in insurance is a part of the contract, an agreement that the facts stated by the applicant are true, and a condition precedent to a recovery upon it; and its falsity in any particular is fatal to an action upon the policy.</p> <p>2. Employer’s Indemnity Bond — Warranty in Application.</p> <p>A written statement made by employers to the obligor in a bond of indemnity against the dishonest acts of their employé, to the effect that they will invariably apply certain checks to his action, which the parties expressly agree by the statement itself and by the bond shall be the basis of the latter, and a condition precedent to a recovery upon it, is of the nature of a warranty, and not of a representation, and a failure to comply with tlie promise it contains is fatal to an action upon the bond.</p> <p>3. Surety Discharged p.y Violation of Condition.</p> <p>A surety is discharged if a condition known to the obligee, upon which the surety agreed to be bound, is not complied with.</p> <p>4. Contract — Party in Default cannot Recover.</p> <p>He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure to perform.</p> <p>5. Same — Modification—Substitution of Terms.</p> <p>Parties to a mutual agreement have the same power to modify it by contract that they had to make it, and, when they mutually agree to substitute new terms for the original stipulations of their contract, the old terms cease to have effect, and the substituted stipulations take their place, and become binding upon the parties.</p> <p>6. Same — Waiver.</p> <p>A waiver is the result of an intentional relinquishment of a known right, or of such words or acts as estop the holder of the right from asserting that he did not relinquish it.</p> <p>7. Same. .</p> <p>The casual receipt by the obligor in a bond of a single cheek signed by the agent of the obligees, without the counter signature of their bookkeeper, is not sufficient evidence of a waiver by the obligor of its right to insist upon an agreement by the obligees to invariably require the counter signature of their bookkeeper upon the checks of their agent to warrant the consideration of this question by the jury.</p> <p>.(Syllabus by the Court.)</p>

The firm of A. Vaccaro & Go. was composed of three brothers, — A. Vaccaro, B. Vaccaro, and A. B. Vaccaro. A. Vaccaro died August 7, 1899, and the Memphis Trust Company qualified as his administrator.

<p>Bankruptcy — Refusal to Confirm Composition — Appeal.</p> <p>Under Bankr. Act 1898, § 25, allowing appeals in bankruptcy proceedings from the courts of bankruptcy to the circuit court of appeals, “from a judgment granting or denying a discharge,” no appeal lies from n refusal of the court of bankruptcy to confirm a composition offered by a bankrupt to his creditors, since no certificate or decree of discharge is either granted or denied in proceedings for the confirmation of a composition, and such appeal is contrary to the general scheme of the act.</p>

Information on behalf of the United States for the forfeiture of certain packages of smoking tobacco for violation of the interna] revenue laws.

<p>1 New Trial — Jury™Peremptory Challenges — Time fob Making — State Statute.</p> <p>Under Mill. & V. Tenn. Code, § 6050, providing that, “in impaneling a jury for the trial of any felony, the court shall not swear any of the jurors until the whole number are selected for a jury,” the state, on the trial of an indictment for criminal conspiracy, under which defendant may be punished capitally, is entitled to peremptorily challenge a juror who has been passed and accepted by both sides after their examination of him on his voir dire, and the jury has been completed, but, not sworn.</p> <p>2. Same — Common-Law Rule.</p> <p>The role at common law being that the right to peremptory challenge is open until the jury is sworn to try the case, the state is entitled, on the trial of an indictment for a felony in the federal courts, independent of any statute, to challenge a juror peremptorily after he has been passed and accepted by both sides, and the jury completed, but not sworn.</p> <p>8. Same — Challenge for Cause — Partiality of Juror.</p> <p>After a juror has been accepted by both sides, and has taken his seat in the box, lie may, upon announcing himself as feeling disqualified to act impartially, before being sworn, be directed by the court to stand aside.</p> <p>4. Same — Challenges—Practice in Federal Courts.</p> <p>The federal courts are not bound to follow the practice of the state courts in respect to the allowance of challenges to the jury in criminal cases, the primary consideration being, by whatever mode of challenging adopted, to secure to the accused all of his rights of challenging.</p> <p>5. Same — Time—Prejudice.</p> <p>Where defendant in a criminal case lias the right of 14 peremptory challenges to the jury remaining to Mm, he cannot complain of the state being allowed, before the jury is sworn, to peremptorily challenge a juror who has been once passed and accepted by both parties.</p> <p>6. Same — Separation—Prejudice.</p> <p>Where the separation of the jury is made a ground for new trial by defendant, he must show prejudice by something more than the bare fact of separation, unless the circumstances of the separation are of themselves sufficient to indicate prejudice.</p> <p>7. Same — Burden of Proof.</p> <p>Allowing a juror, under the eye of an officer having the jury in charge, to go into the lavatories and closets, to go to a drug and other stores, to ask the marshal for supplies, and to speak to men in the court room in the hearing of the marshal, is not such a separation of the juror as creates a presumption of prejudice, and imposes upon the state the burden of proving that no prejudice resulted.</p> <p>8. Same — Unsworn Bailiff.</p> <p>The omission to have the bailiffs placed in charge of the jury specially sworn, on the trial of a felony, is not a ground for new trial in the federal courts, although it is so under the practice of the courts of the state where the trial is had.</p> <p>9. Same — Taking Notes of Testimony — Suppression by Court.</p> <p>The refusal of the court, on the trial of one for a felony, to permit certain of the jurors to take notes of the testimony, and requiring them to surrender notes previously taken by them until after the trial, is not ground for a new trial.</p> <p>10. Same — Challenge for Cause — Prejudice.</p> <p>Where the jury, on the trial of a felony, was sworn when 14 of defendant’s peremptory challenges were unused, defendant is not entitled to a new trial because a challenge for cause by the state was sustained to two jurors, to whom a former officer of the court had spoken in excuse of defendant’s crime, and with expressions of friendship.</p> <p>11. Indictment — Duplicity—Conspiracy—Murder.</p> <p>Under Rev. St. U. S. § 5508, providing for the punishment of conspiracy to injure or intimidate citizens in the exercise of their civil rights, an indictment charging one with having conspired to injure,, oppress, threaten, and intimidate a United States marshal and his posse, and to deprive them of their constitutional right to arrest him on legal process, and resulting in the killing of the deputy marshal, is not objectionable as charging defendant with both conspiracy and murder.</p> <p>12. Conspiracy — Acquittal of Resulting Crime — Punishment.</p> <p>Although one charged with conspiracy to intimidate citizens in the exercise of their civil rights, in violation of Rev. St. U. S. § 5508, and with murder as the result of such conspiracy, be acquitted of the murder, he may yet he punished for the conspiracy, if that charge is established.</p>

<p>1. Contract for Payment of Money — Maturity—Demand.</p> <p>In connection with an agreement by which the complainants were to manufacture cigars and furnish the material therefor to the defendant for three years, 1he accounts to be settled monthly, the complainants loaned to the defendant about if 10,000 to take up its discounted notes. As security for this loan, defendant sold and transferred to complainants all of its fixtures, labels, brands, trade-marks, and merchandise in the cigar business. It was agreed that, as complainants used the defendant’s labels for the manufactured cigars, they should pay or credit the defendant therefor, and the amount should be applied towards the payment of the loan. No time was declared for the maturity of the loan. About 2% years after the loan, plaintiffs made demand for the balance due thereon, and, payment not being made, they sold the collateral at public auction. •Held, that the loan was not made for 3 years, but was payable on demand; nor were the labels to be the entire reliance of plaintiffs for payment during the life of the contract, so that the right to ultimate payment was postponed until its termination.</p> <p>S. Pledges — Sale—Notice.</p> <p>Written notice that the property pledged by defendant would be sold by plaintiffs at half past 12 o’clock the next day was deposited In the mail box of the president of the defendant company about the close of business hours the day before the sale, but not received by him until 10 o’clock the next day, and advertisement of the sale was made in an evening newspaper of the same day, and in a morning paper of the day of the sale. Held, 1hat the notice was insufficient to give title to the purchaser at the sale, since it gave defendant no opportunity to redeem the property, or save its equity.</p>

<p>1. Patents — Infringement—Knitting Machines.</p> <p>Tlie Powell patent, No. 510,934, for improvements in web-holder actuating mechanism for automatic knitting machines, claims 1 and 2, construed, and %d<$ not infringed by mechanism, designed to accomplish the same result, made in accordance with the Bennor patent, No. 557,641.</p> <p>2. Same — Scope of Patent.</p> <p>It is not open to a patentee to claim either the effect or function of the mechanism designed by him, so as to cover any or every device for accomplishing the same result; but, to constitute an infringement, such device must operate in substantially the same way as, and be a known equivalent for, the mechanism of the patent.</p> <p>3. Same — Presumption of Noninfringement — Issuance of Patent.</p> <p>Where a patent has been issued for the alleged infringing device used by a defendant, he is entitled to the benefit of the presumption arising from such fact, that his device does not infringe the prior patent.</p>

<p>L Patents— In fringement — Store- 8k rvice Apparatus.</p> <p>The Osgood patent, No. 357,851, for an improvement in cash-car apparatus, the device described consisting of a car rigidly suspended by iwo wheel hangers from a horizontal wire, along which it Is moved by a. push of the hand, discloses patentable invention, was not anticipated, and is valid, although entitled lo a narrow construction. Claim 1, as so construed, is not infringed by a carrier having a single wheel, although it has underneath guides at either end to prevent oscillation, which is accomplished in the device of the patent by the second wheel; nor by a device in which the wire track is inclined so that the car runs thereon by gravity.</p> <p>2. Same — Invention—Buffer for Cash Car.</p> <p>The Osgood patent, No. 293,192, for an improvement in cash-ear apparatus, claim 2, covers an arresting stop or spring buffer adapted to receive and hold the car, which, as described In the specification, consists merely of a forked wire or spring so placed that the car enters between the ends of the arms, and is arrested and held thereby; and is an obvious mechanical expedient destitute of invention.</p>

In Equity. Suit for infringement of a patent. On motion for preliminary injunction. The patent sued upon is No. 360,070, March 29, 1887, to George Westing-house, Jr., for improvements in fluid pressure automatic brake mechanism.

<p>Patents — Invention—Electric Light and Gas Fixtures.</p> <p>The Stieringer reissue No. 11,544 (original No. 294,697), for a combined gas and electric light fixture, is void for lack of patentable invention, in view of the prior patent to the same inventor, which covered a device for utilizing gas fixtures for electric lights with safety, the improvement on such device embodied in the later patent, by which certain of the arms of the fixture were still used for gas, while the others carried electric lights, being one which would readily occur to a mechanical electrician.</p>

The decree of the Circuit Court for the TQastern District of Wisconsin appealed from is one dismissing for want of equity a hill to enjoin the appellee from infringing Letters Patent No. 547,732, dated October 8, 18&5, issued to George W. Marble for a wooden-rim bicycle wheel; and Letters Patent No. 506,430, dated October 10, 1893, issued to Charles I\ Harrington for a wheel. 90 Fed. 488.

This is a suit in rein against the steamship Progreso to recover damages for breach of a contract by which her owners chartered said steamship to the Seattle & Yukon Steamship Company for two voyages between Seattle and St. Michaels, with an option for two other voyages between the same ports.

<p>1. Removal of Causes — Petition—Allegation of CiTTZENSinr.</p> <p>The absence ol! any allegation, in a petition for removal of a cause to the federal court, identifying the plaintiff with the person to whom the policy of insurance sued upon is made payable, is not fatal where the person named in the complaint and in the policy is so well known that the name alone is sufficient as a deseriptio personae of the plaintiff.</p> <p>2. Same — Action by Assignee of Coxtbact.</p> <p>Where an action is brought in a state court upon a policy of insurance by one purporting to be the assignee of the party to whom the policy issued, but who the complaint shows was originally' a principal party to the contract, and is the person to whom the defendant promised indemnity, so that the assignment was a useless formality, it is not necessary that a petition for removal of the cause to the circuit court of the United States show that the assignor of the cause of action sued upon is a citizen of a different state from that of the defendant.</p> <p>3. Same — Sepakáblk Causes of Action.</p> <p>Where a complaint in an action in a state court states four distinct causes of action agreeably to the rules of ideading in such state, and one of such causes of action is within the jurisdiction of the circuit court of the United States, the cause is removable to the latter court in its entirety, although the record fails to show that the remaining causes of action would have been within its jurisdiction if sued upon separately.</p>

<p>1. Mutual Insurance — Mortuary Fund — Garnishment.</p> <p>The credits due or to become due a mutual insurance company upon mortuary calls and premiums from persons insured in the association, being a trust fund for tlie payment of tlie losses of contributors to it, cannot be diverted by garnishment or an order of court to tlie payment of the judgment of a mere creditor, who is not a member of the association.</p> <p>2. Federal Court — Injunction—Proceedings in State Court — Validity— Receive us.</p> <p>More than 60 days after judgment in an action against plaintiff in a state court, the plaintiff therein filed a supplemental petition to obtain satisfaction of the judgment by subjecting the mortuary calls and premiums thereafter to become due the defendant association; and thereupon Hie slate court; on the same day, although no notice of the petition had been served upon the association, transferred tlie cause to the equity docket, and appointed a receiver for the association in that state, and directed it to collect all the income and revenues of the association from its policy holders. Held, that the proceedings under the supplemental petition were void, and did not constitute a proceeding pending in the state court, within- Her. St. 17. S. § 720, which forbids the issue of an injunction by a federal court against proceedings in a state court.</p> <p>3. Same.</p> <p>The order appointing the receiver in the supplementary proceedings in the state court being a nullity, the receiver is not an officer of the state court, and therefore the receiver and the plaintiff in the state court may be enjoined in a federal court from receiving the mortuary assessments' and premiums due the plaintiff herein.</p> <p>4. ' Same — Irreparable Injury — Multiplicity of Suits.</p> <p>The holders of complainant’s certificates being numerous, a mortuary call being due in a few daj-s, and its payment to any other person than the association being likely to result in the lapse of many certificates and in irreparable injury to many members, besides doing serious injury to the business of the association, and causing a multiplicity of suits, and the mortuary calls being, moreover, not subject to any'form of garnishment, the plaintiff is without any adequate remedy at law, and is entitled to an injunction restraining the judgment creditor and the receiver appointed by the state court from seeking to reduce the income and revenues of complainant to possession for the satisfaction of said judgment.</p>

<p>Attorney and Client — Settlement—Liability of Attorney to Accounting —Res Adjudicata — Pleading.</p> <p>An attorney, while representing a receiver appointed in Illinois in suits pending against N. in Wisconsin, purchased for a nominal sum an outstanding claim against the estate represented by the receiver, brought suit thereon, and attached the debt due the estate in the hands of N., and then effected a settlement with N., whereby all of the moneys due from the latter to the estate of the receiver were appropriated to the payment of the claim purchased save $1,000. To a bill filed by the receiver against the attorney for an accounting the attorney pleaded an adjudication in the action of the receiver against N., that the receiver acquired no title to the property in Wisconsin by his appointment in the Illinois court, and that defendant became privy to said adjudication, and entitled to the protection thereof, as to property purchased after the judgment was rendered. Keld that, the settlement with N. having been effected while the relation of attorney and client subsisted, defendant’s liability to account for the proceeds thereof could not be resisted by any plea in respect to the legality of the receiver's claim.</p>

<p>In Equity. On motion for preliminary injunction.</p>

Tliis is a, bill to restrain trespass and remove a cloud from the title to a large tract of wild mountain land claimed to lie within the Seventeenth civil district of Monroe county, Tenn. The complainant claims title under a grant from the stale of Tennessee. The defendants claim title to the same under a grant from the state of North Carolina.

Hearing on complainant's pleadings and proofs of the plea of the trustees of Hamilton College to the hill of complaint and of plea of same to the cross bill. ,

<p>Equity — Pleading Former Adjudication — Duplicity.</p> <p>A plea setting up, as former adjudications, judgments in two separate suits or proceedings, is bad for duplicity.</p>

In Equity. Suit by the United States to cancel certain certificates and patents to lands issued under a grant to aid in the construction of a wagon road. On pleas and demurrer to cross bill.

<p>Appeal — Review—Findings op Fact.</p> <p>Where a circuit court, with the consent and agreement of parties, appoints a master wiih authority to take testimony and find all issues of law and fact, findings of fact made hy the master and confirmed by the court are conclusive on appeal unless plain error is unmistakably shown; and, unless such plain error is found, tlxe appellate court will not review questions of law which could only arise on a state of facts different from that found.</p>

<p>In Equity. Suit to quiet title, and to enjoin trespasses on land claimed by complainant under an entry from the United States, but to which no patent had been issued. On motion for preliminary injunction, demurrer to bill, and motion by complainant for judgment on the pleadings.</p>

<p>In Equity. i?ur exceptions to master’s report distributing proceeds of sale.</p>

<p>1. Constitutional Law — Due Process of Law — Franchise of Corporation —Taking for Public Use.</p> <p>The taking by a municipal corporation, for the use of the municipality, of a system oí waterworks belonging to a private corporation, nnder an act of the legislature providing that the valuation to he paid therefor should he the “fair value of said property for the purposes of its use by the city,” and that “such value shall he estimated without enhancement on account of future earning capacity, or good will, or on account of the franchise of said company,” is a taking without just compensation, and is therefore in conflict with the fourteenth amendment to the constitution of the United States, providing that no person shall he deprived of his property without due process of law.</p> <p>2. Same.</p> <p>Where the franchise granted by the legislature to a private corporation to erect waterworks to supply a city with water is not exclusive, the subsequent grant to the city of the right to build competing waterworks does not constitute a taking of the corporation’s property or franchise, within the fourteenth amendment to the constitution of the United States, providing that no person shall he deprived of his property without due process of law.</p> <p>8. Same.</p> <p>By St. Mass. 1893, e. 471, a city was authorized to build its own waterworks, notwithstanding the previous grant of a franchise to xilaintiff, but was required to first submit to a vote of its people the questions: First, whether it should purchase the existing works of plaintiff, if the latter desired to sell; and, second, whether it should maintain its own waterworks. The city having voted to supply itself with water, but not to purchase the works of plaintiff, St. Mass. 1894, c. 474, was passed by the legislature, obliging the city to purchase plaintiff’s works before proceeding to supply itself with water, if plaintiff within 30 days after the passage of the act notified the mayor of the city of its desire to sell, and provided that, if the xiarties were unable to agree upon terms of sale, appraisers should he appointed, who should determine the fair value of the property “for the purposes of its use by the city,” and “without enhancement on account of future earning capacity or good will, or on account of the franchise of said company.” Mehf, that whether the right of the city to build competing waterworks under the act of 1893 existed or not when the act of 1894 was passed, neither the competition authorized under the act of 1893, nor that threatened under the act of 1894, being illegal, the compulsion upon plaintiff to sell its works under the act of 1894 without just compensation, or have the value of same destroyed by the competing works of the city, did not constitute the sale one under duress, which was in effect a taking of plaintiff’s property by the city without compensation, within the fourteenth amendment to the constitution of the United States, providing that no person shall he deprived of his property without due process of law.</p>

<p>United States — Liability nor Torts — Negligence in Operating Elevator —Personal Injury.</p> <p>While the license extended by the United States to the public to use its passenger elevator in a post-office building imposes upon the government the duty to use ordinary eare to see that the facilities offered to its licensees are in a condition of reasonable safety, no implied contract arises from such relation to carry the passenger to his destination, which will entitle one who is injured through the incompetence of a person in charge of the elevator to maintain an action against the United States for damages, under Act March 3, 1S87 (24 Stat. 505), permitting a recovery against the United States for claims founded upon any contract, express or implied, with the government of the United States, or for damages, in cases not sounding in tort.</p>

Id Error to the 'Circuit Court of the United States for the District of Kentucky. This action was brought by the receiver of the German National Bank against the Fidelity & Deposit Company of Maryland to recover upon a bond given to indemnify the bank against loss by fraudulent acts of J. M. McKnight as president thereof. It appears in the record that on June 1, 1894, McKnight was elected vice president, and executed his bond for one year.

<p>1. Insurance — Indemnity against Loss by Insolvent Debtors — Constijuction of Bonds.</p> <p>Two bonds of indemnity against loss by the insolvency of debtors were issued to a mercantile company, the second being a renewal of the first. They contained identical provisions to the effect that-any loss covered by the terms of such bond, and resulting from sales and shipments made during its term, but which should not become provable, under its conditions, before its expiration, might be proved under a renewal thereof “under and subject also to the terms and conditions of such renewal”; and also that, in case such bond was a renewal, losses accruing during its term on sales and shipments made during the term of the preceding bond might be proved thereunder, “subject, also, to the terms, conditions, and limitations of said preceding bond.” Held, that under such provisions one evident purpose of a renewal was to extend the protection of the preceding bond to losses on sales during its period which did not technically become provable before its expiration, and hence that such losses arising from sales and shipments made during the term of the first bond and proved during the term of the second were governed by the terms and conditions of the original bond, rather than those of the renewal, as to matters in which the two differed. 1</p> <p>2. Same — Initial Loss to be Borne by Insured.</p> <p>A bond of indemnity guarantied the insured against loss not exceeding $20,000, resulting from the insolvency of debtors “over and above the loss of $2,000, agreed first to be borne by the said indemnified.” It contained further provisions that “the claims provable under this bond include only the amount to be first borne by the indemnified and the amount of this bond,” and that “no amount against any one such insolvent debtor shall be covered for more than $10,000.” Held, that under such provisions the initial loss to be borne by the insured must he deducted from the amount of “covered” or “provable” loss, which would require the aggregate amount of such covered loss to he $22,000 to authorize a recovery of the full amount of the bond.</p> <p>3. Same — Application of Payments.</p> <p>Under a provision of a bond of indemnity against loss by the insolvency of debtors that “when the amount of a claim against any debtor at the time of insolvency exceeds the amount covered by this bond all amounts realized or secured therefrom shall be deducted pro rata,” the insurer is entitled to have credited an amount paid the insured by a third person in settlement of a suit brought to charge him with liability for the debt as a partner as an amount realized upon the claim.</p> <p>4. Same — Payment of Premium.</p> <p>An insured in an indemnity bond gave a short note for a renewal premium, which was paid by a check payable to the insurer, which cashed the check and retained the money. A renewal policy was issued, reciting the receipt of the premium, and in an action on the two bonds the answer admitted the execution of the second bond. Meld, that under such circumstances the defendant could not deny to the second bond the same effect as though the premium had been paid in cash at the time the note was given.</p>

<p>In Bankruptcy. On application by bankrupt for discharge.</p>

<p>Bankruptcy — Sufficiency of Petition — Unauthorizf.d Alteration.</p> <p>An amended petition in bankruptcy, executed as such by a creditor to be filed in proceedings previously instituí ed, cannot, after sucb execution, and after the proceedings have been dismissed by the court, be converted into an original petition by striking out tbe word “amended,” and be made the basis of a new and independent proceeding; and where it has been so filed it will be dismissed on the facts being made to appear to the court.</p>

<p>1. Manufacturing- Corporation — Act of Bankruptcy — Preference—Dissor I.UTION of Corporation.</p> <p>A manufacturing corporation, which has permitted three judgments to be taken against it, and executions to be issued thereon, and its property to be advertised for sale thereunder, and which thereafter institutes proceedings for the dissolution of the corporation, is chargeable with having committed an act of bankruptcy, within Bankr. Act, § 3a, subd. 3, providing that an act of bankruptcy may be committed by suffering or permitting, while insolvent, any creditor to obtain á preference through legal proceedings, and not having vacated or discharged the same at least five days before sale.</p> <p>2. Same — Dissolution of Corporation.</p> <p>The commencement of voluntary proceedings for the dissolution of a manufacturing corporation does not have the effect to extinguish the liens of all levies on executions against the corporate property, so as to relieve the corporation from the operation of Bankr. Act, § 3, subd. 3, providing that an act of bankruptcy is committed by permitting a creditor to obtain a preference through legal proceedings, and not having discharged the same at least five days before sale.</p>

<p>t. Customs Duties — Construction oe Terms Used in Statute.</p> <p>Terms which had no commercial meaning at the time they were used in a lariff statute must be construed, in accordance with tbeir plain, natural meaning. •</p> <p>2. Same — Cuassteication—Drilled Pearls.</p> <p>Pearls which, though not si rung, have been drilled or pierced, are not dutiable under paragraph 496 of the tariff act of 1897, as “pearls in their natural state, not strung or set,” nor are they within any of the other jewelry paragraphs, but must tie classified for duty under the general provisions of section 6, covering manufactured or partly manufactured articles not enumerated.</p>

<p>On Petition by H. G-. Wilshire for Writ of Habeas Corpus.</p>

<p>1. Habeas Corpus — Petention op Minor in Military Service — Ase—Evidence.</p> <p>Upon application by a parent for a writ of habeas corpus for the release of his minor son, who is unlawfully detained in the military service of the United States,, the testimony of the petitioner as to the date of the birth of the son is not sufficient to establish the age of the latter, when it is evident that it can he supported, if true, by the usual documentary evidence.</p> <p>2. Same — Military Offense — Conflict of Jurisdiction.</p> <p>The federal courts will entertain jurisdiction for writ of habeas corpus for the release of a minor, under the age of 21, who is detained in the military service of ¡he United States under enlistment, in violation of Rev. St. § 1117, although charges have been filed against the minor hy an officer of the army for violation of Act July 27,1892, § 3, making fraudulent enlistment, and the receipt of pay or allowance thereunder, punishable fey court-martial, if the charges have not been acted upon hy the executive department of the government.</p>

<p>1. Extradition — Power of Congress to Authorize.</p> <p>It is within the power of congress to provide by statute for the extradition of fugitives from the justice of a foreign country without any reciprocal treaty, but as a matter of international comity, and such power is not affected by the character of the criminal procedure in such country, or by the fact that the alleged offender against its laws may be a citizen of the United States.</p> <p>8. Same — Constitutionality of Statute — Foreign Country Occupied by United States.</p> <p>Act June 6, 1900, amending the extradition laws by authorizing the extradition of persons charged with violation of the criminal laws of any foreign country or ierriiory which, or any part of which, is occupied by or under the control of the United States, is not unconstitutional, as applied to Cuba, on the ground that under the constitution the United States cannot occupy or exercise control over the island, since its inhabitants are free and independent. The United States was in military occupation of the island as the territory of an enemy a,t the time it compelled Spain, as the result of the war, to relinquish her sovereignty over it, and may constitutionally continue such occupancy until the political branch of the government shall determine that it is no longer necessary.</p> <p>3. Same — Proceedings—Objections to Documents.</p> <p>Technical objections to documents in extradition proceedings as to matters of form are not entitled to favorable consideration by the courts, and If the certificates, signatures, etc., are in substantial conformity to the requirements of 1he statute, and give reasonable assurance of authenticity, it is sufficient.</p>

<p>1. Extradition — Issues in Proceeding — Aot June 6, 1900.</p> <p>Under Act June 6, 1900, providing for the extradition of persons charged with violation of the criminal laws of any foreign country occupied by or under the control of'the United States: “provided, further, that such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing prohable cause that he is guilty of the offense charged,” it is the sole function of the judge before whom such proceedings are had to determine the question of probable cause upon evidence which is competent under our laws, and it is not his province to enter upon the question whether the accused, if surrendered, will be accorded a fair and impartial trial.</p> <p>2. Same — Probabt.e Cause — Sufficiency op Evidence.</p> <p>In proceedings for the extradition of the defendant to Cuba to answer to a charge of embezzling public funds as a public officer, evidence that he was the head of the bureau of finance in the department of posts of the Island of Cuba, which bureau issued stamps to the postmasters of the island, and received the remittances therefor, and deposited the same in bank; that defendant personally received and receipted for such remittances, and directed the amount of each deposit, himself making up the packages therefor; and that during a considerable time the receipts, as shown by the hooks, uniformly exceeded the deposits, — is sufficient to establish probable cause, and warrant the holding of the defendant for extradition. i</p>

In Equity. These were three suits between the same parties for infringement of three several design patents. On final hearing.

<p>1. Patents — Invention—Ertopmíl of Improver.</p> <p>Where the device of a patent is workable, and embodies a novel and important principle in the art, a subsequent inventor who has adopted the principle and has improved the device in its details after it has been tested by practical use cannot deny patentability to the original invention on the ground that it was inoperative and crude.</p> <p>2. Same — Infringement—Electric Motor Regulators.</p> <p>The Knight patent, No. 428,169, for an improved electric motor regulator, the principal feature of which is a locking device which prevents the movement of either the regulating lever or the reversing lever, except when the other is in a predetermined position, was not anticipated and is valid. Claims 1, 2, 3, and 4 also held infringed by an electric controller made in accordance with the Harris patent, No. 587,733, which is within the letter of the claims, and the same as the device of the Knight patent in its main operative features, although some of the minor details are neither the same nor equivalents.</p>

In Equity. Final hearing upon pleadings and proofs of a suit for infringement of United States' letters patent No. 296,601, to Hermann Albrecht, April 8, 1884, for an ice-chipping tool.

<p>In Equity. Suit for infringement of patent. On final hearing.</p>

<p>1. Patents — Invention—New Combination of Old Elements.</p> <p>To render a combination of old elements patentable, it must produce a new and useful result, or an old result in a new and useful manner; and furthermore the conception and embodiment of the combination must involve the exercise of the inventive faculty, and not merely the skill of a mechanic familiar with the art</p> <p>2. Same — Evidence of Novelty — Extensive Use.</p> <p>. The fact of the popularity and extensive use of a patented mechanism is entitled to consideration on the question of invention only when that question is in doubt on the other evidence. It cannot sustain a patent for an alleged invention which is clearly without patentable novelty.</p> <p>8. Same — Invention—Duplication of Parts.</p> <p>Invention cannot be predicated of the mere duplication or multiplication of well-known mechanisms.</p> <p>L Same — Printing Machines.</p> <p>The Eirm patents, No. 410,271, claim 6, No. 415,321, claim 7, and No. 529,680, claims 11, 12, and 13, all of which relate to improvements in printing machines, are void for lack of patentable novelty in view of the prior art.</p>

<p>Patents — Anticipation—Guide for Printing Press.</p> <p>The Hodgman patent, No. 340,785, for an under-guide for printing machines having a continuously rotating impression cylinder, is not rendered invalid for want of patentable novelty by the McElroy device, covered' by patent No. 285,826, which relates-to improvements in-a stop cylinder press,. and contains no part which could perforin the function of the Hodgman invention in a continuously rotating cylinder press.</p>

In Admiralty. Suit to recover damages on the ground of the negligence of the defendant city in failing to removeoan obstruction from a navigable stream.

<p>In Admiralty. Suit for damages resulting from unseawórthiness of lighter.</p>

<p>1, Salvage — Conduct oe Salvors — Proximate Cause of Danger — Evidence.</p> <p>As the claimant was crossing tlie bar at the entrance of a harbor she received a signal of one whistle from libelants’ tug, responded with a single whistle, immediately ported her helm, and, after proceeding two or three minutes on her course, struck a shoal in rough water, by reason of which her rudder post was broken, and she signaled for assistance. After getting off the bar, the claimant, being in a helpless condition, was washed on the bar a second time, before the tug went to her assistance, and the latter even then did not come nearer than 400 feet, because of the shallowness of the water. Thereupon the claimant launched her own boat, and carried a line to the tug, whereby the latter was able to give her hawser to the claimant, and to tow her to a place of safety and for repairs; the service lasting about two hours. Held, that the channel being wide enough for two vessels to pass, and the claimant, in any event, having the right of way, because of her having commenced to cross the bar first, her deviation from her course was an error of navigation, which, rather than the signal of tlie tug, was the proximate cause of her stranding, and that therefore the service rendered by 11m tug was a salvage service, for which the libel-ants were entitled to compensation.</p> <p>2. Same — Amount of Recovery.</p> <p>A steamer of the value of $40,000, being without rudder, and aground in shoal water in a rough sea, was towed by libelants’ tug to a place of safety; but neither the tug nor any of her crew was exposed to the slightest danger in performing such service, and the ordinary charge for the tow-age of the vessel would have been $175. Meld, that the libelants were entitled to recover $1,000 as salvage, three-fourths of which sum should go to the tug, and the balance to her master and crew, in proportion to their wages.1</p>

In Admiralty. Suits in rein to recover damages Cor injuries to the American ship Columbia .and to the British bark Ravenscourt, caused by a collision between the two vessels while both were being towed to sea by the steam tug Tyee, owned and operated by the Puget Sound Tugboat Company. Hearing on the merits. Decree in favor of the Ravenscourt.

<p>Brokers — Employment to Sell Vessel — Commission—Evidence—New Trial.</p> <p>Plaintiff, having been authorized by defendant’s superintendent, acting under orders from the general manager of the company, to sell one of defendant’s vessels, subject to 5 per cent, commission, called tbe attention of the purchasing officer of the United States government to the vessel, and the superintendent, knowing of plaintiff’s action, offered the vessel to the government at a price fixed by the general manager. The latter thereupon summoned defendant’s trustees, who ordered the sale made, and the general manager ordered its consummation through the superintendent. Defendant’s officers disclaimed any knowledge of plaintiff’s connection with the sale, hut there was evidence of frequent interviews between plaintiff and the superintendent, and communications made by the latter to the home office of the company, respecting the sale of the vessel, and the authority to sell subject to' a commission. Meld, that the evidence of plaintiff’s employment to make a sale at the commission named justified the submission of the question to the jury, and supported a verdict in his behalf.</p>

<p>In Admiralty. Suit to recover freight and to enforce a lien therefor.</p>

<p>In Admiralty. Suit in rem to recover for a personal injury.</p>

<p>Admiralty — Claim rou Sinking Vessel — Neglect to Display Lioirrs.</p> <p>In a channel i'roin 400 to 450 feet wide, eight vessels were moored abreast oil a coal dock on a dark and foggy night, occupying nearly 190 feet of the channel, at a distance of .‘550 feet from a steamboat dock. The masters of the vessels went to bed, knowing of the fog, and, if any lights at all were displayed outside the cabin, they were only those of ordinary lanterns. When about five-eighths of a mile from the coal dock, the claimant:, which was approaching the steamboat dock, reduced her speed to one bell, blew fog signals, and, before the collision in question, had stopped her engines, so that the vessel was being carried by the fide. The pilot in charge of the wheel of the claimant was a man of long experience, and the compass course pursued by him carried his steamer about 100 feet off the face of the coal dock, which course was approved by previous experience. Although three men besides the cap fit in were in the how of the claimant on the lookout, the vessels at the coal dock were not discovered until within about 50 feet, when the pilot gave the signal to hack, hut the forward movement was not stopped before the steamboat struck a barge belonging to the libelant, which was driven forward up the river and sunk, and for which damages are claimed. Meld, that common prudence demanded that vessels appropriating so large a portion of the channel should employ adequate means to make their presence known, and that, the course of the claimant’s pilot being a fair navigation of the channel, in the absence of any warning apprising him of interruption the libel should be dismissed.</p>

<p>Admiralty — -Appeal—Requiiung Amendment of Pleadings.</p> <p>Where tho pleadings in a suit in admiralty are so deficient that the court on an appeal cannot properly apply the evidence in the record, or justly determine the rights of the parties, but there is apparently no design to suppress the facts, the decree below will be set aside, and the case remanded for the filing of new pleadings.</p>

<p>In Admiralty. Suit in rem to recover damages for breach of charter.</p>

<p>In Admiralty. Suit to recover for supplies furnished to a vessel.</p>

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

<p>Collision — Steam Vessels tn Foo — Evidence Considered.</p> <p>Evidence in support of a libel and cross libel for collision considered, and held insufficient to sbow that a collision between two steamers in East river during a fog was due to negligent navigation on the part of either vessel, and both the lihel and cross libel dismissed.</p>

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

<p>In Admiralty. Gross libels for collision.</p>

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

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

<p>In Equity. On motion to dismiss for want of jurisdiction.</p>

This is a case in equity to enjoin the defendant from pasturing sheep on uninclosed .grazing land owned by the complainant. Argued and submitted on final hearing. Decree for complainant.

<p>In Equity. On exceptions and demurrers to original and supplemental bills.</p>

<p>In Equity. Suit to foreclose railroad mortgages. On petition of intervention.</p>

<p>1. Bankruptcy — Discharge—Grounds of Refusal.</p> <p>The burden rests upon a creditor to establish by convincing proof that a bankrupt, since his adjudication, has concealed property belonging to hi's estate from his trustee, and that the" concealment was knowingly and fraudulently made, to defeat his right to a discharge on that ground.</p> <p>2. Same — Fraudulent Concealment of Property.</p> <p>The fact that a bankrupt, after his failure in business, many years before Bankr. Act 1898 was enacted, conducted business in the name of his wife, with capital borrowed by her, for the purpose of preventing his creditors from reaching the product of his industry and skill, does not render property which is thereby accumulated in the name of the wife, and to which he never had any title, legal or equitable, assets of his estate on his subsequent adjudication as a bankrupt, so that his failure to schedule such property or report the same to his trustee constitutes a knowing and fraudulent concealment of property, or the making of a false oath to his schedule, which will defeat his right 'to a discharge.</p> <p>3. Same.</p> <p>Property transferred by an insolvent to his wife years prior to the passage of Bankr. Act 1898, which was purchased by him principally on credit, and subsequently paid for from the proceeds of business conducted by him as agent for his wife, is not assets of his estate which he is required to schedule on his subsequent adjudication as a bankrupt, in the absence of proof that it was held for him on a secret trust; and his failure to so schedule it is no bar to his discharge under such act.</p>

<p>Telegraphs — Occupation of Streets — Revocation of Permit.</p> <p>A general telegraph company, granted a permit by a city to erect poles and wires in the streets and alleys of the city, cannot, under cover of its franchise, confer the right to use such streets and alleys upon a separate company desiring to construct a local system, without the consent of the city, and an attempt to do so will justify the city in revoking its franchise.</p>

This was a proceeding by a railroad company under the statutes of Arkansas to condemn right of way and also an easement to cross the right of way and tracks of another company.

<p>1. Process — Service on Foreign Insurance Company — Validity.</p> <p>Under Code Va. §§ 1205-1207, providing that no insurance company which is not incorporated under the laws of the state shall make any contracts of insurance within this state until such company shall appoint a citizen of the state its agent upon whom may he served all lawful process-against the company, and that until such appointment is made service of process may he served upon the auditor of public accounts, service of process upon the auditor, in an action against a foreign insurance company conducted upon the assessment plan, and which lias no agent or attorney in this state upon whom service of process may he made, is void, since such corporations are controlled hy Act May 18, 1887, and amendments Thereto, which makes no provision for the service of process upon a foreign assessment company during the existence of a vacancy in the office of such agent or attorney.</p> <p>2. Same — Insufficiency of Copy Sent to Defendant.</p> <p>A copy of process mailed to a foreign insurance company, pursuant to Code Va. § 1267, in- which the day, month, and year of its issuance are left blank, is not sufficient to constitute a legal service under the statute.</p> <p>8. Same — Jurisdiction.</p> <p>Upon a foreign insurance company ceasing to do business in the state of Virginia, it is no longer amenable io the jurisdiction of the courts of that state, under Code Va. §' 1207, providing that service of process in actions against a foreign insurance company may be made upon the agent of the company, or. in the absence of the appointment of an agent for such purpose, then upon the auditor of public accounts.</p>

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

<p>Libel — Pleading—Special Damages.</p> <p>In an action for libel, to entitle the plaintiff to prove special damages on account of the loss of business contracts alleged to have been prevented by the libel, he must set out the names of the persons with whom such contracts would have been made.</p>

<p>Bankruptcy — Exemptions—Authority op Court to Set Apart.</p> <p>While it is the duty of the trustee, under Bankr. Act 1898, to set apart the homestead exemption of the bankrupt, his action is not final, but the courts of bankruptcy are expressly given jurisdiction, by section 2, subd. .11, to determine all claims to exemptions; nor does rule 17 of the general orders (89 Eed. viii., 32 C. C. A. xix.), allowing 20 days for exceptions to the setting apart, apply to the bankrupt, who may petition the court in relation to his claim to exemption at any time while the property is still unadministered.</p>

<p>Bankruptcy — Discharge—Requiring Payment on Fee.</p> <p>Where a bankrupt files an affidavit of inability with his petition, a referee has no authority, under Banltr. Act 1898, to require him to pay the statutory fee, as a condition to ihe granting of a discharge; such power being given to the court alone by rnle 35, subd. 4, General Orders (89 Fed. xiii., 32 G. O. A. xxxiv.), to be exercised on proof of ability only.</p>

<p>1. Bankruptcy — Exemptions—State Statute.</p> <p>Under a state statute exempting to a debtor bis “best swine or meat of a swine,” tbe fact that a bankrupt bas a part of tbe meat of a swine does not deprive bim of tbe right to select bis best remaining swine as exempt.</p> <p>2. Same.</p> <p>Under tbe Vermont statute exempting- to a debtor “two borses kept and used for team work,” a bankrupt is not entitled to claim as exempt a liorse kept and used as a racer, and not otherwise, although be bad been casually used on a few occasions for work, and also in carrying members of tbe bankrupt’s family to and from work or school.</p>

<p>Bankruptcy — Homestead Exemption — Vermont Statutes.</p> <p>Tinder the statutes of Vermont, as at common law. prior to Acts 1896, p. 34, a husband entitled to c-urtosy became vested with an estate for life in property conveyed to his wife; and such act, which provided that he should, on the death of his wife, be entitled to one-third in value of the property in fee, in lieu of curtesy, did not affect the life estates of husbands, which had previously vested. Also, under the statutes of the slate, a husband is entitled to a homestead exemption, to the extent of $500 in value, lo bo allowed from the estate he holds in the property occupied by him and his family as a homestead, without regard to the value of the fee where his interest is less, and such homestead interest is subject only to debts contracted before its acquisition. Meld, that the homestead right of a bankrupt in property occupied by him as a homestead, the title to which was conveyed to his deceased wife prior to 1896, dated from the time of such conveyance, and not from the taking effect of a devise to him of a life estate in the property made by the will of his wife.</p>

<p>Bankruptcy — Discharge—Failure to Keep Boors.</p> <p>Unless the failure of a bankrupt to keep books of account or records is found to have been “with fraudulent Intent 1o conceal his true financial condition and in contemplation of bankruptcy,” it cannot be made the ground for refusing him a discharge under Bankr. Act 1898, § 14b.</p>

<p>1. Bankruptcy — Proceedings por Sale op Homestead.</p> <p>Where a trustee finds the homestead property of the bankrupt, which exceeds in value the homestead exemption, indivisible, he may apply to the referee for an order of salo, and it is not essential to the validity of a sale so ordered that the proceedings should be filed with the clerk of the bankruptcy court.</p> <p>3. Sake — Homestead Exemption.</p> <p>Where a bankrupt made no application to retain his homestead and pay the excess in value over the statutory exemption, and no objection to an order for its sale by the referee, he cannot thereafter attack the validity of such sale; nor has he any ground for objecting to the deduction from his share of the proceeds of the value of other assets, not exempt, which he has received without objection from the trustee.</p>

<p>In Bankruptcy. On report of referee.</p>

<p>Bankruptcy — Homestead Exemption.</p> <p>It is the duty of a trustee to set out the bankrupt’s homestead; and where it is subject to debts, so as to render a sale necessary, the cost of converting it into money should be borne by the trustee, and the entire proceeds above the amount of such debts paid to the bankrupt.</p>

<p>Bankruptcy — Jurisdiction of Court of Bankruptcy — Insolvency Proceedings in State Court.</p> <p>Property of which a bankrupt was In the actual occupancy as a homestead at the time of the adjudication, and to which he had some title which had not been devested by pending proceedings In insolvency against him in a state court, was brought, by the adjudication, within the jurisdiction of the court of bankruptcy.</p>

<p>Bankruptcy — Assets—Life Insurance Policy.</p> <p>An endowment policy of insurance on the life of a bankrupt, payable to him, or, in case of his death before its maturity, to his mother, if living, and, if not, to his assigns or legal representatives, has a cash surrender value, within the meaning of Bankr. Act 1898, § 70a, cl. 5, where the company issuing it offers to pay a sum in cash for its surrender, although it contains no provision requiring such payment, and passes to the trustee as assets, unless the bankrupt pays the surrender value, subject to such rights therein as may be established by the bankrupt’s mother.</p>

<p>Í. Customs Duties — Valuation of Foreign Coins — Proclaimed Value sum Basis of Estimate.</p> <p>Under Tariff Act 1891, § 25 (28 Stat. 552), providing that the values oi standard foreign coins shall be estimated quarterly by the director of '¡he mint, and be proclaimed by the secretary of the treasury, and that the values so proclaimed shall be followed in estimating the value of all foreign merchandise exported to the United States, the secretary of tin-treasury has no authority to direct the liquidation of an entry for customs duties on the basis of the exchange value of the foreign coin as declared by the consular certificate.</p> <p>2. Same — Approval of Wrong Estimate — Effect.</p> <p>The approval hy the secretary of the treasury of the liquidation of an entry for customs duties by the collector of the port upon the basis of the exchange value of the foreign coin specified in the invoice, as declared in the consular certificate, does not amount to a reliquidation of the entry-under Tariff Act 1894, § 25 (28 Stat. 552), providing that the secretary of the treasury may order the reliquidation of any entry at a different value-, upon satisfactory evidence that the value in United States currency of the foreign money specified in the invoice was at the date of certification at least 10 per cent, more or less than the value proclaimed during the quarter in which the consular certification occurred.</p> <p>2. Same — Review of Estimate by Circuit Court.</p> <p>The action of the collector of a port, declining to accept the proclaimed value of a foreign standard coin, and in adopting the value declared in tlie consular certificate, thereby increasing the amount of customs duty to be paid upon imported merchandise, although approved by the secretary of the treasury, is reviewable, on the protest of the importer, by the board of general appraisers and by the circuit court under Customs Administrative Act June 10, 1890, §§ 14, 15, providing for an appeal by an importer from a liquidation by the collector of a port to the board of general appraisers, and from the board to the circuit court.</p>

<p>Omtoms Duties — Custom House Bonds — Damages for Breach.</p> <p>The amount recoverable for the breach of a custom-house bond taken under Itev. St. § 2899, by the refusal of the principal obligor to return packages on demand of the collector, is double the estimated value of the particular packages so withheld, as liquidated damages; and such amount is not a harsh or excessive penalty, the object of the statute in requiring the bond being to secure the return of the packages when demanded, to obviate the necessity and trouble of resorting to extrinsic evidence to ascertain their contents.</p>

On exceptions to petition of intervention filed in proceedings to condemn and forfeit property for a violation of the internal revenue laws.

<p>Aliens — Deportation of Chinese — Merchants.</p> <p>Where a Chinese person is shown to have been a member of a firm of merchants in this country for seven years, with $1,000 invested as his share of the capital, the fact that he has lately visited China, and returned from there, nothing being shown as to his manner of re-entry, does not warrant his arrest and deportation.</p>

<p>Aliens — Chinese Exclusion — Evidence oe American Nativity.</p> <p>Unimpeached and uncontradicted testimony that a person of the Chinese race, seeking to enter the United States from China, was horn in this country, when direct, positive, and circumstantial, cannot be disregarded, and must be held to overcome the presumption of his Chinese nativity.</p>

<p>Patents — Priority oe Invention — Wire Bustles.</p> <p>In a suit by the owner of the Kiel patent, No. 626,207, for a wire bustle, for infringement by bustles manufactured by defendant under the Taylor & Hammond patent, No. 617,452, which apparently covers the same invention, and is prior in date of application and of issue, evidence offered by complainant to show priority of invention held insufficient, and the hill dismissed without prejudice.</p>

<p>In Equity. Suit for infringement of a patent. On motion for preliminary injunction.</p>

<p>Petition for Limitation of Liability.</p>

<p>In Admiralty. On exceptions to commissioner’s report.</p>

<p>Jurisdiction of Federal Court — Diversity of Citizenship — Citizenship of Administrator.</p> <p>An appointment as administrator by a probate court of a citizen and resident of another si ate does not change his citizenship, so as to confer jurisdiction on a federal court, on the ground of diverse citizenship, of an action brought by him, as such administrator, against a citizen of tlie state where he resides.1</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>These are two suits in equity in aid of .two actions at law brought hy the same plaintiff to enforce alleged liens of attachment upon property of James McHenry, which it is claimed were obtained hy service of the warrants in the actions at law, and which ‘‘have become defective hy the death of McHenry and the nonappearanee of a personal representative” in such actions at law. The suits were heard on pleas and answers and proofs. The circuit court held that: “If no attachment had been issued in tbe action at law, it is manifest that there would be nothing on which to base the action in equity. It is only because of the lien alleged to have been acquired that the aid of equity is invoked. If the complainant had no lien, there was nothing for equity to aid. The mere fact that an attachment issued is of no consequence, unless it fastened itself upon some property of the defendant, and impounded it so that the plaintiff could reach it if he obtained a judgment.” The circuit court further held, upon the question whether or not the attachments had become liens on any property of McHenry, that the complainant was concluded hy an adverse decision of the state supreme court in an action of interpleader wherein the complainant and the defendants Perkins, Fowler, and Dunning were parties. The bills were dismissed (99 Fed. 502), and complainant appealed. The facts are sufficiently set out In the opinion.</p>

<p>In Equity. On final bearing. For former opinion, see 98 Fed. 145, and 101 Fed. 19.</p>

This was an action at law by the plaintiff, as receive**, to recover an assessment on shares of stock in a national bank.

At Law. On demurrer to matter set up in the answer of defendant as barring the action.

<p>Action at law ior the recovery of money paid out on a fraudulent telegraphic order, and t.o obtain damages for fraudulent conversion.</p>

<p>Bankruptcy — Failure to Select Trustee — Appointment by Referee.</p> <p>It is proper for a referee to require a letter of attorney before allowing another to vote on tlie claim of a creditor in the election of a trustee, and, when the creditors in attendance cannot make a selection, — a majority in number voting for one person, and a majority in amount for another, — to himself appoint the person favored by a majority of the creditors.</p>

<p>1. Bankruptcy — Petition by Trustee against Attorneys — Sufficiency of Notice.</p> <p>Under Bankr. Act 1898, § 60d, wbicb requires a court of bankruptcy, on petition of a trustee, to re-examine a transaction by wbicb tbe bankrupt, prior to tbe filing of a petition by or against bim, paid money or transferred property to any attorney, and to order a repayment of any amount paid, beyond a reasonable fee, a proceeding for that purpose, bad on petition of tbe trustee, is one administrative in character, in which tbe jurisdiction of tbe court is not dependent on tbe service of regular process, as in a suit, but is expressly given by tbe statute; and a notice of a bearing therein before a referee, given by mail to tbe attorneys interested, a reasonable time before such bearing, is sufficient.</p> <p>2. Same — Referees—Furnishing Copies of Proceedings.</p> <p>Referees in bankruptcy are required by Bankr. Act 1898, H 39a, cl. 3, to furnish parties in interest with such information as may be requested, as to proceedings before them, but they are not required to furnish copies of such proceedings; and tbe jurisdiction of a referee to proceed with a bearing on a reference made by tbe court is not affected by bis refusal to furnish a party, on demand, with a copy of tbe petition on which the bearing is based, and of tbe order of reference.</p>

<p>Bankruptcy — Discharge—Making False Oath in Proceedings.</p> <p>A voluntary bankrupt, before filing his petition, gave his attorneys an order for a sum of money due him for wages, but not yet payable, in payment of a past indebtedness to such attorneys, for their services in the bankruptcy proceedings, and to secure the payment of an installment of alimony which he was required by a decree of court to pay to his wife. He thereafter stated in his schedule, to which he made oath, that he hr.d paid nothing to his attorneys for their services in the proceedings, and had assigned no property for the benefit of creditors. The amount so assigned was greater than the value of the assets scheduled. EeJd, that he was guilty of making a false oath, within the meaning of Bankr. Act 1898, § 29b, which was punishable by imprisonment, and deprived him of his right to a discharge under section 14, subd. 1.</p>

<p>Bankruptcy — Judgments against Bankrupt — Effect of Adjudication.</p> <p>Under Bankr. Act 1898, § 67f, which provides that all attachments, judgments, etc., taken against an insolvent within four months prior to the filing of a petition in bankruptcy against him are “to be deemed null and void in case he is adjudged a bankrupt,” a judgment so taken is rendered void for all purposes by the adjudication, and no proceedings can ever be had thereon, even in case the bankrupt is refused a discharge, but the creditor is remitted to his original cause of action.</p>

<p>1. Bankruptcy — Bankrupt Withholding Property — Contempt—Power' to Punish.</p> <p>An involuntary bankrupt who withholds property from his trustee in bankruptcy is liable to punishment as for contempt of court, notwithstanding Kev. St. § 990, providing that no person shall be imprisoned for debt in any state, on process issuing from a court of the United States, where by the laws of the state imprisonment for debt has been abolished; but the power of the court to punish in such cases should be cautiously exercised.</p> <p>2. Same — Evidence.</p> <p>Where a bankrupt denies the possession or control of property alleged to he withheld by him from his trustee in bankruptcy, his possession of such property must be established by uudisputable testimony, to render him liable to punishment for contempt because of such retention.</p> <p>3. Same.</p> <p>An apparent deficiency of assets reported by a bankrupt, according to capital invested, goods purchased, and claims proved, will not warrant his punishment as for contempt of court, where his bank account shows that during the period covered by such computation ihe bankrupt paid within about $700 of the amount of such deficiency upon the debts of a firm of which he was formerly a member, and that the balance not so accounted for ntay be attributed to the loose manner in which the business was conducted.</p> <p>4 Same — Exemptions—Not Allowed out op Personal Property not Paid por.</p> <p>Under Const. S. C. art. 2, § 32, which allows a debtor to hold personal property exempt from attachment to the amount 'of $500, hut provides that no property shall be exempt for payment of obligations contracted for the purchase of such property, a bankrupt is not entitled to such exemption out of the proceeds of a sale by the trustee in bankruptcy of merchandise which has not been paid for.</p> <p>5. Same — Homestead—Purchase Made with Proceeds op Merchandise not Paid por.</p> <p>Dnder Const. S. O. art. 2, allowing a debtor a homestead in lands to the value of $1,000, which shall be exempt from attachment, except for debts for the purchase price, where it appears that the debtor had at least $1,000 in money when he commenced business, he will be entilled to claim as exempt a homestead subsequently purchased with the proceeds of merchandise not paid for, if at the time of the purchase he had no such contemplation of bankruptcy as would constitute the purchase a fraudulent diversion of moneys properly belonging to his creditors.</p> <p>6. Same — Appraisement.</p> <p>Where Ihe evidence tends to show that the property claimed by a bankrupt as a homestead is worth more than the value allowed by the laws of the state, the same may be appraised, and, if it exceeds the legal value, it will he assigned as a homestead, upon payment to the trustee In bankruptcy of the sum above such value.</p> <p>7. Same — Allowance to Bankrupt’s Attorney.</p> <p>Under Bankr. Act 1898, ¶ 64b, providing for the allowance of a reasonable attorney’s fee to the bankrupt in involuntary proceedings, where the attorney for the bankrupt is required to prepare schedules of the bankrupt’s assets and liabilities, and attend references before the referee in matters involving the conduct of the bankrupt’s business prior to his bankruptcy, an allowance to the attorney of a fee of $90 out of the estate in the hands of the trustee is not excessive.</p>

<p>1. Bankruptcy — Procedure for Review.</p> <p>The fact that an appeal is taken in bankruptcy proceedings, and a petition for revision also filed, both relating to the same subject-matter, does not defeat tbe right to have the matter determined on the merits in whichever proceeding is held to be appropriate.</p> <p>3. Same.</p> <p>Tbe proper proceedings to review an order of the court in bankruptcy requiring a bankrupt to indorse a license for sale is by petition to revise, and not by appeal.</p> <p>3. Same — Assets of Estate — Liquor License.</p> <p>A liquor license issued by the authorities of a city under the police laws of the state, transferable subject to the approval of such authorities, which is ordinarily granted, and which for that purpose has a recognized value of from $4,000 to $5,000, conditipned upon the acceptance of the transferee by the authorities, on the bankruptcy of the license is available as assets of his estate, under Bankr. Act, and he may be required by the court to execute the transfer necessary to enable the trustee to convert it into money for the benefit of the estate. While such a license is not in itself property, regarded merely as an evidence of authority to do business under a police regulation, under the circumstances stated it represents a substantial investment of tbe bankrupt’s capital which would otherwise be subject to the claims of his creditors; and, so long as such capital is in such form that it can be converted into money at his option by merely executing an assignment, it constitutes property, within tbe meaning and intent of tbe statute, which he has no right to withhold from his creditors.</p> <p>4. Sa,me — Intervention in Proceedings.</p> <p>Where a liquor license owned by a bankrupt and converted into money by his trustee by order of the court had previously been pledged by the bankrupt, the pledgee is entitled to intervene in the bankruptcy proceedings for the purpose of asserting his claim to the payment of his debt from tbe proceeds. .</p> <p>5. Same — Jurisdiction of Court.</p> <p>Where there are several proceedings in bankruptcy against two persons who claim several interests in the same subject-matter, and the trustee of one bankrupt voluntarily submits himself to tbe jurisdiction of the court of bankruptcy in summary proceedings relating to the estate of the other for the purpose of disposing of the property claimed in common, the court has jurisdiction in such proceedings to dispose of his interest in such property.</p> <p>6. Same — Matters Revibwable — Compliance with Order.</p> <p>Where a liquor license was issued to two persons, named therein, and one of the licensees in summary proceedings in the matter of the other’s bankruptcy was required by tbe order of the court in bankruptcy to indorse the license for sale, and did so indorse it, ho lias no remedy against the order by application to the circuit court of appeals, because whatever action that court might take would he futile. It seems that his remedy, if any, would have been hy refusing to make the indorsement, and by taking proper measures for review in case he was proceeded against for contempt.</p>

<p>Patents — Utility—Spotting Tobacco Leaves.</p> <p>The Rickard patent, No. 604,338. for an improvement in the art of treating tobacco leaves, which consists in sprinkling the. leaves of the growing plant with chemicals — preferably, a solution of potash, hut including any alkali — which produce spots, and are claimed to improve the quality of the leaves for use as cigar wrappers, is void, because not useful; the only effect of the treatment, if not the only object, being to spot the tobacco, and counterfeit the leaf spotted by natural causes.</p>

<p>Í. Patents — Designs—Limitation as to Subject of Patent.</p> <p>Design patents refer to appearance, and not to mechanical utility, and are intended to apply only to mailers of ornament, in which the utility depends upon the pleasing effect imparted to the eye, and not. to any new function. A calk for a horseshoe is not a proper subject for such a patent.</p> <p>2. Same — Hoksbsiioe Calk.</p> <p>The Eowe design patent, No. 26,587, for a design for a horseshoe calk, is void because the article is not an appropriate subject for a design patent.</p>

, This is a bill in equity filed by the appellant, Mark A. Smith, for the purpose of obtaining an injunction against an infringement of certain patents by the appellee, Charles T. Ridgeiy, and to recover for profits and damages. The parties to the suit were originally joint owners of the patents. They were issued to Ridgeiy for himself, and as assignor of a one-half interest therein to Smith.

Appeals from the District Court of the United States for the 'Southern District of New York. These cases come before this court on appeal by Nicholas J. Boylan and Syndenham Scott, the claimants, as owners of the steamship George Farwell, from decrees of the district court, Southern district of New York, sustaining libels filed against said steamship for repairs and supplies.

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

<p>1. Federal Courts — Injunction Staying Proceedings in State Court — Jurisdiction on Removal.</p> <p>Rov. St. § 720, prohibiting a federal court from granting an injunction to stay xiroceedings in a state court, excexrt in relation to bankruptcy matters, does not prevent the removal upon the usual grounds of a suit from a state court in which such an injunction has been granted; and in case of such removal, under section 4 of Act March 3, 1875, the injunction previously granted remains in force until dissolved or modified by the federal court.1</p> <p>2. Injunction — Grounds—Proceedings under Power of Uminent Domatn.</p> <p>Where two railroad companies have each instituted proceedings for the condemnation of the same land for right of way under the California statute, which expressiy authorizes the court in such proceedings to determine the respective rights of different parties seeking- condemnation of the same property, a court of equity will not interfere by injunction in behalf of the party whose proceedings were first commenced, so long as the other conducts its proceedings in accordance with the statute, but will leave the rights of the parties to be determined by the special tribunal designated by law.</p>

In Equity. On application for preliminary injunction to restrain the use of market quotations as made on complainant’s exchange.

<p>Equity — Pleading—Plea.</p> <p>Where the object of a bill is to overturn an alleged successful fraud and conspiracy accomplished by decrees of a court collusively obtained, and the answer denies all averments of fraud and collusion, it is impracticable to determine the validity of a plea setting up in bar the proceedings and decrees attacked until the issues of fact joined by the bill and answer have been found.</p>

<p>1. Taxation — Ohio Statute — Assessments by County Auditor.</p> <p>Under Rev. St. Ohio, §§ 2781, 2782, which make it the duly of a county auditor to list and value property which the owner has failed to return for taxation, or as to which he has made a false return, the functions of the auditor are not judicial, but ministerial, being merely those of an assessing officer, whose determination is not conclusive, but is subject to review in the courts in a suit authorized to be brought for that purpose by section 5848; and it is no objection to the validity of such provisions that the auditor is allowed by law a percentage on the taxes collected.</p> <p>2. Same — Construction of Statute.</p> <p>The provisions of Rev. St. Ohio, § 2782, relating to the procedure by a county auditor for the assessment of property omitted to be returned or falsely returned by the owner, are applicable to proceedings under either that or the preceding section, including the requirement of no-' tice to the taxpayer.</p> <p>3. Constitutional Law — Due Process of Law — Assessments for Taxation.</p> <p>The assessment of property for taxation, although without notice to the owner, is not in violation of the provision of the fourteenth amendment to the constitution against depriving any person of his property without due process of law, where, as by Rev. St. Ohio, § 5848, the owner is expressly given the right to test the validity of the assessment by a suit to enjoin the collection of the tax, the amount of which and of the assessment are matters of public record at all times after the assessment is made.</p>

<p>POSTMASTBBS — NONMAILABI.E jVÍATTBB — SUIT TO COMFET. ACCEPTANCE.</p> <p>Act Sept. 26, 1888' (25 Stat. 496) § 1, declaring certain matter to be nonmailable, and vesting the postmaster general with power to exclude-it from the mails, by reasonable implication also vests him with authority to determine what matter is nonmailable thereunder; and, tin! courts cannot review his action in that regard unless he acts maliciously or fraudulently or exceeds his authority. Hence, in a suit to compel a postmaster to accept for transmission through the mails matter inclosed in certain envelopes, an answer setting up as a defense an order from the postmaster general directing the defendant to decline to accept such envelopes, on the ground that they contained matter printed thereon which rendered them nonmailable under the statute, is not evasive, but is responsive to the bill; it being the defendant’s duty to obey such, order.</p>

Action in equity to enjoin defendants from collecting tolls from complainant.while conveying the United 'States mail over a certain toll road.

Action to determine the right of possession involved in an adverse claim to certain mining ground, pursuant to section 2326 of the Revised Statutes of the United States. On demurrer to complaint.

<p>1. Pleading — Motion to Strike Out — Ohio Practice.</p> <p>The objection that a defense pleaded in an answer is Immaterial cannot be made by a motion to strike out, under the Ohio practice, but should be taken by demurrer.</p> <p>8. Same — Sufficiency of Answer.</p> <p>Where the petition of a county treasurer, in conformity to the state practice, alleges that a certain amount stands charged upon the tax books of the county against the defendant as personal taxes and penalties, which is due and unpaid, and asks judgment therefor, without specifying on what property such taxes were levied, a denial in the answer that defendant had any of a particular kind of property subject to taxation does not state a defense, either in whole or in part.</p>

In Bankruptcy. On application of the assignee of the bankrupt under the state insolvency laws for allowance of compensation and expenses.

In Bankruptcy. The following is the report of Referee GEORGE S. BERNARD: To Hon. EDMUND WADDILL, Jr., Judge of Said Court: The undersigned referee respectfully reports to your honor’s court that from the transcript of the record of the proceedings had before him in this cause from the date of the reference up to the 13th day of November, 1899, filed with the report of the undersigned made on the 14th day of November, 1899, from the transcript of the record of the subsequent…

In Bankruptcy. In the matter of the claim o£ a seller for a return of goods alleged to have been secured by the bankrupt by false representations.

<p>In Bankruptcy. On objections to jurisdiction.</p> <p>8am Appel was in business in Fremont, Neb., and continued to reside there until August 29, 1899, on which date he removed to Chicago. On September 1, 1899, three creditors (Julius Herman & Co., Stern, Falk & Co., and Arnold, Louchheiiu & Oo.) filed a petition against Sam Appel in bankruptcy. Subpoena, was forthwith issued, but not served, as Sam Appel from and after August 29, 1899, had been a resident of Chicago, and continuously absent from the Nebraska district. On October ti, 1899, Keith Bros. & Co., Kohn Bros., and Sweet, Dempster & Co. filed in court proof of their respective claims against Appel. March 8, 1900, these interveners filed a petition in intervention, and on April 4, 1900. service was made of the original petition and petition of intervention upon Appel in Chicago.</p>

<p>1. Appeal — Transcript—Effect of Omitting Evidence.</p> <p>Neither counsel for an appellant nor the clerk can' determine conclusively what parts of the record are necessary to the hearing on appeal in the circuit court of appeals, and, where the certificate does not show that the record is a full and complete transcript of the entire proceedings, it should appear by stipulation or otherwise that it does include all that is necessary to a determination of the matters involved in the appeal; but it is desirable that it should contain no immaterial matter, and a failure to incorporate the entire record will not be held ground for dismissing the appeal, but the appellee should, if not satisfied with the transcript as filed, seasonably move the court to require the incorporation'of such other papers and evidence as he deems necessary and points out.</p> <p>2. Bankruptcy — Record on Appeal.</p> <p>Where a referee in bankruptcy on petition of a party desiring a review by the judge of an order made by him, in accordance with the requirements of Bankr. Act 1898, § 39, subd. 5, and rule 27 of the general orders (32 G. A. xxvii., 89 Fed. xi.), has certified to the judge the question presented, “a summary of the evidence relating thereto, and the finding and order of the referee thereon,” and the matter has been heard and determined by the judge on the record so made, the original evidence before the referee is no part of the record in the court, and cannot be required to toe included in the transcript on an appeal from its decision.</p> <p>3. Same — jÜIatters Reviewable by Appeal.</p> <p>Under Bankr. Act 1898, g 25, subd. 3, which gives a right of appeal “from a judgment allowing or rejecting a debt or claim of five hundred dollars or over,” such an appeal includes as an incident any question as to the rank or lien of such debt or claim in the distribution of the bankrupt’s estate; at least, where such question is one of controverted fact and law.</p>

<p>Bankruptcy — Right to Discharge — Failure to Keep Books of Account. •'</p> <p>The action of an insolvent in mingling money of his own with that his 'wife, and depositing it together in banks in his wife’s name, without keeping any books of account or records showing what portion of such deposits was owned by‘him, for the purpose of preventing his creditors from reaching it, when such practice was continued until he filed his petition in voluntary bankruptcy, constituted a failure to keep books of account or records with fraudulent intent to conceal his true financial condition, and in contemplation of bankruptcy, which debars him from his right to a discharge, under Bankr. Act, § 14b.</p>

<p>Prosecution for Murder. The defendant was convicted at Laredo, Tex., April term, 1900. On motion for a new trial.</p>

<p>Federal Courts — Habeas Corpus — State Prison.</p> <p>Where a person has been regularly indicted for tbe violation of tbe criminal statutes of a state, and is in the custody of the state authorities, he will not be discharged before trial by a federal court, on .habeas corpus, on the ground that he was forcibly and illegally brought within the jurisdiction, but he will be required to submit his rights under the federal laws for adjudication, in the first instance, to the courts of the state.</p>

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

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

<p>In Equity. Suit for infringement of reissue patent No. 11,657, to Thomas J. Brough (original No. 559,670), for a hydrocarbon burner.</p> <p>On demurrer to bill.</p>

In Equity. Suit for infringement of a patent. On motion for a preliminary injunction, beard July 10 and 11, 3900. The following are the affidavits for complainant: Affidavit of William E. .Tolbert. William E. Jolbert, of lawful age, being duly sworn, deposes and says: I reside in Berlin, N. H., and am a mason by trade. I worked at the mill of the Burgess Sulphite Fibre Company at Berlin, N. IL, and worked upon the lining of all the digesters now in use in that mill.

<p>1. Shipping — Construction of Charter — Injury to Ship from Cargo of Asphalt.</p> <p>Under a time charter of a steamer to be employed in such lawful trades between ports of the United States and the West Indies or Caribbean Sea as the charterers might direct, the owners warranting her to be “tight, stanch, and strong, and every way fitted for the service,” the owner cannot recover from (he charterers for injury to the vessel from bringing a cargo of asphalt from Trinidad, which was loaded under direction of the master; for, while such cargo is peculiar and requires special fittings, and subjects the surrounding parís of the vessel to more than the usual lateral pressure when shipped in bulk, it is not only lawful merchandise, hut constitutes one of the chief articles of export from the island, and was clearly -yvitliin the terms of I he charter, which placed the risk of the sufficiency of the vessel upon the owner.</p> <p>2. Samp: — Injury to Cargo in Loading — Liability of Ship.</p> <p>A provision of a charter requiring the charterer to supply the slings for loading cargo is complied with by furnishing the proper rope from which the slings are made, and the vessel is liable for an injury-to the cargo in loading caused by improper splicing of the slings by the seamen, who are furnished by the owner.</p>

<p>In Admiralty. Suit for collision. On exceptions to report of commissioner awarding damages.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. On application for leave to take further proofs.</p>

<p>On Petition to Superintend and Revise from the District Court of the United States for the Eastern District of North Carolina. In bankruptcy.</p>

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

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

<p>Appeal from the District Court of the United Slates for the Eastern District of Missouri.</p>

<p>Demurrer to Complaint in an Action at Law.</p>