Volume 104 — Federal Reporter

<p>JURISDICTION OF FlODERAT, COURTS — DISTRICT IN WHICH SUIT MUST BE BROUGHT -Corporations.</p> <p>A corporation of New York having its office in Buffalo, which does not maintain, and has never maintained, any office or place of business in the state of Ohio, is not “found” in that district, within the meaning of the federal statutes, so as to be subject to suit there, merely because one of its officers is temporarily in Ohio, superintending work being done by the corporation in a harbor, under a contract with the United States; and service of process upon such officer confers no jurisdiction on the courts of the state or district over the corporation.1</p>

<p>Circuit Courts of Appeals — Jurisdiction—Cases Involving Federal Question.</p> <p>Where the controlling question in a case involves the construction and application of the constitution of the United States, the circuit court of appeals should decline to take jurisdiction, although the question was not raised by the plaintiff’s pleading, and the jurisdiction of the circuit court was not dependent upon it.</p> <p>McCormick, Circuit Judge, dissenting.</p>

<p>1, Quieting Title — Title op Complainant to Support Suit.</p> <p>Although one out of possession may be authorized, under a state statute, to bring an action in a federal court to quiet title or remove a cloud, it is essential to his right to relief that be established the legal title in himself.</p> <p>2. Courts — Jurisdiction to Convey Real Estate — Lands in Another State.</p> <p>While a federal court of equity may compel a conveyance of lands in another state by a decree in personam against a party who holds the title, it has no jurisdiction to itself transfer the title to such lands by a sale anc. conveyance made through its master or commissioner.</p> <p>8. Equity — Laches—Suit to Remove Cloud on Title.</p> <p>Where the defendants, in a suit in a federal court to quiet the title to unoccupied lands and for the cancellation of certain conveyances as clouds upon complainant’s title, claim through conveyances based upon sales for taxes, some of which wore executed 25 years before the commencement of the suit, and the latest 9 years before, the court will refuse relief to the complainant on the ground of laches, without regard to the .state statute of limitations, and although fraud is charged, where no adequate excuse is shown for the delay.</p>

<p>Evidbhce — Proceedings of Oorforatiohs — Records.</p> <p>Under Code W. Va. c. 53, § 52, which. requires corporations to keep records of tbeir proceedings, the records of a corporation of that state constitute the best evidence of facts which should be shown thereby, such as the names of incorporators and officers, the action taken at meetings, etc.</p>

<p>1. Equity — Pleading—Insufficiency op Bill.</p> <p>A bill is demurrable wbicb is so defectively drawn that it is impossible for the court to determine the questions attempted to be presented for decision.</p> <p>2. Public Lands — Suit to Determine Private Rights — Jurisdiction op Courts.</p> <p>A suit in equity cannot.be maintained to determine the rights of the parties in a tract of land so long as the title to such land remains in the United States, and a contest between the parties in respect to it is still pending in the land department.</p>

<p>'Equity Pleading — Amendment op Bill — Stating Inconsistent Causes op Action.</p> <p>Where the object sought by a bill was to establish a trust in complainant’s favor in a tract of land, and to compel the defendant to convey the title thereto to complainant, on the ground that, through fraud and irregularities, defendant had been permitted to enter the land from the United States, a second pleading, which seeks to quiet the complainant’s title to the land, cannot be regarded as an amendment of the original bill, ■which may he filed raider leave to amend, since it not only stales a different canse oí action, but one which depends for its support on a different and inconsistent state of facts.</p>

In Equity. Suits to quiet title .to lands. On motions for preliminary injunctions and for the appointment of receivers, and on demurrers to the bills.

<p>Eminent Domain — Taking fob, Public Purposes — Injury Incident to Improvement op Navigation.</p> <p>Where the United States government, in the proper exercise of its powers, has undertaken the improvement of the navigation of a river, and by means of the dams and other works therein built has caused' a permanent rise in the level of the water of such river, resulting in the flooding of rice land adjacent, which was previously protected by embankments, and drained into the river, so as to render it permanently valueless for any purpose, such action constitutes a taking of the land for public purposes, within the meaning of the fifth amendment to the constitution, and the owner is entitled to recover just compensation therefor.</p>

This action was brought by the defendants in error against the plaintiff in error, as assignee of a ground lease, to recover rent which accrued after the defendant had assigned to another.

<p>1, Interest — Liability op County — Overdue Coupons.</p> <p>Under the law' of Illinois, as declared by the supreme court, interest is recoverable only when authorized by statute, and the general statutory enactments on the subject do not apply to the state, or to counties, or municipal corporations, unless expressly so provided; hence interest is not recoverable on interest coupons from county bonds after tlieir maturity, where they contain no agreement to pay interest.</p> <p>2. Same — Acceptance op Principal.</p> <p>Where interest is not stipulated for in an obligation, although it may be recoverable under the statute as damages, it cannot be recovered after acceptance by the creditor of full payment of the principal, and it is immaterial that lie accepted the principal under protest.</p>

<p>COUNTY Boxbr — Invalidity ob- Statute Authorizing— Bona Fidk Holdkks.</p> <p>The supreme court of Illinois having declared void section 20, Act March 10, 1869, authorizing the issuance of bonds in aid of the St. Louis & Southeastern Kailway Company, which was incorporated by the same act, as in violation of the state constitution, such decision is binding on the federal courts, and bonds issued by a county under such provision, being without authority ol law, are not rendered valid by any recitals they contain, and are unenforceable in the hands of all holders.</p>

<p>in Bankruptcy. On exceptions to decision of referee.</p>

<p>In Bankruptcy. Hearing on petition in involuntary bankruptcy.</p>

<p>1. BAXKRÜPTCY — ImMQUIDATED CLAIMS — WllAT ARE PROVABLE.</p> <p>Iiankr. Act 1898, ¶ 63, subsoc. “b,” which provides for the liquidation by the court of unliquidated elaims against the bankrupt, and that they may thereafter be proved against his estate, covers only such elaims as, when liquidated, are provable debts under the specifications of the preceding suhseciion “a,” and does not authorize the liquidation and proof of elaims arising ex delicto, unless they are bf such a nature that the claimant might, at his election, waive the tort, and recover in quasi contract.</p> <p>2. Same — Rescission op Sale for Fraud — Effect.</p> <p>Creditors of a bankrupt, who have been permitted to rescind contracts by which they sold goods to the bankrupt, on the ground of fraud, and to recover from the trustee such of the goods as came into his hands, are not thereby precluded from having tlieir claims for the proceeds of the goods which had been previously sold by the bankrupt liquidated by the court, and proving the same as debts against the estate; they being entitled to treat such proceeds of their property as money received to their use.</p>

<p>In Bankruptcy. On motion to confirm the report of tfie referee recommending a discharge.</p>

<p>Customs Buttes — Act Appuioabuk— Si'Ii’kioienot ov Protest.</p> <p>Where the only question of difference between an importer and a collector with reference to the assessment for duty of goods entered on J uly 24, 1897, was as to whether they were dutiable under the act of 1891 or that of 1897, they having been first appraised under the former aud after-wards reclassified under the latter, a protest by the importer, on payment of the duty, which clisüncüy states his claim that they should have been assessed under the former' act, is sufficient, although it does not specify the particular provisions of cither act which were held or claimed to be applicable.</p>

<p>Prosecution for an Offense against the Postal Laws. On demurrer to indictment.</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The decree appealed from dismisses the bill of complaint for want of equity, and is based on the opinion of the trial court that the patent in suit is invalid both for uncertainty and for lack of novelty. 100 Fed. 451. The bill alleges .infringement of letters patent No. 367,732, issued to the appellant, as assignee of (Joseph Van Ruymbelce, August 2, 1837, for a fertilizer. The original application was filed July 27, 1885, and called for a patent for the process described; but this was re£usod_ hy the patent office for sundry reasons stated by the examiners, including (lie following: That “there is no specific process described”; that “neither tire specifications nor the claims” comply with the law; and that “many other inventors have treated the same and similar material to that of the applicant with the same chemicals.” Thereupon, the application being changed to oue for the product, the patent was finally allowed for “certain new and useful improvements in fertilizers,” with the following specifications and claim:</p> <p>“Liquids technically known as ‘tank-waters,’ produced by the rendering of meats and fatty substances, contain so much of soluble gelatinous substances that, when evaporated, the product is so sticky and deliquescent that its utilization as a fertilizer lias been abandoned. My present invention consists in the production from rank-water of a fertilizer free from undue deliquescence and viscidity, which I accomplish by rendering insoluble the gelatinous substances contained in these waters without the loss of any of the solids in solution, and without the transformation of them into several different products, each of which products requires to be differently and separately treated for utilization, as is the case when the stickiness is corrected by heat. In iny method of making this new fertilizer by rendering insoluble the gelatinous substances contained in those liquors I preferably use a solution of sulphate of iron, and, for the purpose of ascertaining the minimum quantity to be used, I determine, first, the specific gravity of the liquid to be treated; secondly, the proportion of gelatinous substances which it contains. The class and character of the meats rendered and the tank-water therefrom vary so much in the relative proportions of fibrine and gelatine which they contain that it is necessary to make a chemical test of a sample of tank-waters about to be treated. (Phis test consists in gradually adding to such sample of tank-water a solution of iron of known strength; and in my experience I have found that for one hundred parts of solids in solution in the tank-water it requires from fifteen to twenty per cent, of green copperas, which is added in solution to the tank-water, and mixed thoroughly therewith. This compound is then evaporated under 250° to 300° Fahrenheit, preferably by steam, after which it is placed In an open vessel, in thickness of one inch, and for a period of about ten hours is subjected to a heat of about 350“ Fahrenheit, when it will become hard, brittle, and easy of pulverization. The heat should not be raised much higher than 350°, because the material would thus again become sticky, blacken, and suffer loss of ammonia. By this means the substances in solution in the tank-waters, with all the nitrogen they contain, are preserved in the resulting non-viscid, non-deliqueseent fertilizer, rich in nitrogen, with soluble phosphate and potash. Instead of using sulphate of iron, as an equivalent I may use the same proportions of chloride of iron, sulphate of aluminum, alum, acetate of lead, or other soluble salts of iron or aluminum, or twenty to thirty per cent, of organic tannins, or five to ten per cent, of chlorine or its equivalent hypochlo-rides. These are the proportions when either class of these chemicals is used alone, but, if used in combinations, equivalent proportions of each will take the place of the others. I am aware that the described chemical ingredients have been used in the treatment of sewage and similar liquids, but such use has been for the purpose of preventing odorous decomposition, and not for rendering insoluble gelatinous compounds, such liquids not usually containing gelatine. Having described my invention, what I claim is: The within-described nitrogenous fertilizing material, consisting of the undecom-posed coagulated albuminoids of concentrated tank-waters freed from undue deliquescence and viscidity.”</p> <p>The appellee, Swift & Co., is operating as licensee under letters patent issued to Omar T. Joslin, April 11, 1893, for a “process of making fertilizer from tank-water”; and the following is stipulated as the process actually employed by the appellee, in conformity with such patent, producing the fertilizer which is alleged to infringe the appellant’s patent:</p> <p>“The tank-water is first concentrated to a consistency of about thirty-five degrees Baumé, at a temperature of 140 degrees F. The resultant product is called ‘stick.’ To the stick there is added two per cent, of sulphuric acid of from sixty to sixty-six degrees strength. The mass is then' stirred for a few minutes to allow decomposition to take place. There is then added in solution enough sulphates formed by dissolving waste fuller’s. earth in sul-phuric acid so that on completion of the process the finished product will contain, on dry basis, eight per cent, of such sulphates. The mass is then stirred about ten minutes. Pressed cooked blood is then added until the finished product will contain, on dry basis, seventeen per cent, of blood, and the mass is stirred about ten minutes. The product is then finished by drying in shallow pans in a steam oven. This process is sometimes varied as follows: As a substitute for the two per cent, of sulphuric acid there is sometimes used an equivalent quantity of waste sinews or ligaments from slaughtered animals, dissolved in sulphuric acid. Another change is that, as a substitute for the pressed cooked blood, there is used about half the quantity of blood, and the deficiency is supplied by using steamed hoofs, the quantity of each and either depending upon the supply of either or both on hand; but usually there is a sufficient quantity of hoofs used so that the finished prodfiet will contain from eight to twelve per cent, of hoof, on dry basis.”</p> <p>In support of the defense of anticipation in the prior art, numerous letters patent of the United States were introduced, and the following are specially referred to and discussed in the testimony of the experts: Gale’s, No. 38,040, for an “improvement in treating phosphatic guanos”; Wilson’s, No. 90,328, for an “improved process of treating offal-gelatine and scrap for the manufacture of fertilizers”; Stephens’, No. 144,877, for an “improvement in the manufacture of fertilizer by using plaster of Paris with animal matter”; Shaw’s, No. 146,285, for treating slaughter-house wash for a fertilizer; North’s, No. 165,172, for an “improvement in fertilizers”; Halverson’s, No. 171,613, which distinctly claims “the improved process of utilizing ‘soup’ described, consisting in treating the same with persulphate of iron”; Terne’s, Nos. 228,955, 246,242, 269,487, 282,411, relating to the treatment of sewerage and tank-waters; Huet’s, No. 242,777, for treatment of animal substances, etc., for making a fertilizer; Myerson’s, No. 163,099, and Strype’s, No. 318,826, for treatment of blood; also several patents issued on applications of Joseph "Van Ruymbeke, both prior and subsequent to the patent in suit, for the treatment of tank-waters to produce fertilizers.</p>

<p>In Admiralty. Libels against a vessel and against an insurance company to recover advances made on inland freight charges on a cargo shipped on through bills of lading, and destroyed by fire at the wharf while loading.</p>

<p>In Admiralty. s3uit to recover damages for injury to cargo.</p>

<p>In Admiralty. Libel for freight and cross libel for damages.</p>

<p>In Admiralty. Suit to recover damages for injury to cargo.</p>

<p>1. Collision — Steam and Sail Vessels Crossing — Speed in Fog.</p> <p>A steamer, which was in the track of coastwise vessels, going at a speed of 13 knots an hour, at whicli speed she could not be stopped in a less distance than 1,400 feet, in a fog so dense that another vessel could not be seen at a distance of more than one-eighth of a mile, was not going at a moderate speed, within article 16 of the act of August 19, 1890 (26</p> <p>Stat. 326), which took effect on July 1, 1807 (29 Stat. 893), which provides that “every vessel shall, in a fog, mist, falling- snow or heavy rain storm, go at a moderate speed, having careful regard to the existing circumstances and conditions,” and must be held-in fault for a collision with a schooner which was entitled to the right of way.</p> <p>2. Same — Evidence of Sounding of Pog Signals.</p> <p>The distance at which a fog horn can be heard varies so greatly with the direction and the particular conditions of the fog and atmosphere that the fact that the fog signals of a schooner were not heard by an approaching- steamer until two or three minutes before collision, while the whistle of the steamer was heard on board the schooner for half an hour previously, is entitled to little weight in determining whether the horn was sounded at the intervals required by article 15 of the act of August 19, 1890 (26 Stat. 325), which took effect on July 1,' 1897 (29 Stat. 893).</p> <p>3. Same — Lookout.</p> <p>Where the lookout on a small schooner saw an approaching steamer as soon as she could be soon through the intervening- fog, the fact that he' was stationed on the after house, instead of at the bow, cannot be held a fault contributing to a collision between the two vessels, nor can the fact that men -were not stationed ready to make a change in the sails in ease of emergency, where a change of course could not have been made in time to avoid collision after the approaching steamer was seen.</p> <p>4. Same — Improper Maneuvers — Tacking in Pog.</p> <p>A schooner cannot be held in fault for a collision with a steamer in a fog, the primary cause of which was the excessive speed of the steamer, because half an hour before the collision, and after hearing the whistle of the steamer, she tacked on a course which might bring- her across that of the steamer, especially where the tack she was on previously had brought her as near the shore as it was prudent to go.</p>

u .Appeal from the District Court of the United States for the Eastern District- of Wisconsin., In Admiralty. On September 25, 1897, Henry Rahr, the appellee here, and the owner of the steam tug Agnes C., exhibited his libel in the court below against the steamer P. H. Birkhead in a cause of collision.

This cause comes to this court upon the alleged error of the circuit court of the United States for the district of Montana in awarding a peremptory writ of mandate to compel the payment of a judgment recovered in said circuit court hy .Tames H. Mills, receiver, against the city of Helena, on the 1st day of December, 1897, for the sum of 831,319.

<p>In Error to tlie Oircnit Court of the United States for the Eastern Division of the ¡¿Southern District of Ohio.</p>

The defendant in error J. E. Miller recovered judgment against the plaintiff in error, the Louisville & Nashville Railroad Company, for an injury sustained while making a coupling. Miller was a switchman who had been in the service of the company but four days when he sustained the injury for which he sued.

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>Action by administratrix of Charles Beckert for the negligent death of the intestate while in the service of the plaintiff in error. Judgment for the plaintiff below, and defendant sued out writ of error. Charles Beckert was employed in the repair shops of the railroad company. A locomotive engine was reported as having a leaky plug. By order of one James E. Feeney, who was general foreman of the roundhouse and repair shop, Beckert was directed to go into the fire box and remedy the leak. Though the fire had been drawn from the fire box, it was still very warm, and the steam gauge showed a pressure of 16 pounds inside the boiler. Beckert undertook to stop the leak by driving the flue plug tighter, using a hammer for the purpose. The leaky plug was a screw plug. Hammering upon it for the purpose of driving it tighter broke or crushed the threads which held it in place to such an extent that it was driven out by the steam pressure in the flue, and Beckert and his helper were scalded to death by the escaping steam and hot water. The evidence established that leaky boiler flues are often plugged to prevent escape of steam and water into the fire box. Sometimes the end of such a flue is threaded, and a brass screw plug then screwed tightly in, so as to fill and close the end of the flue. But another and common method was to close the flue by driving a tapering iron plug, adapted to the size of the flue, into the open ends, thus closing it. Both methods were then in use in the engines of the plaintiff in error. When such a flue plug leaks it is first necessary to determine whether it is a screw or driven plug. If a screw plug, the leak is often stopped, if the plug was not defective, by tightening it up with a wrench. A driven plug is ordinarily tightened by driving it in with the hammer. An experienced mechanic can readily tell from the metal and from the appearance of the exposed end of such a plug whether it is of the one kind or the other, and whether it should be tightened with a wrench or hammer. But the appearance of the exposed ends.of such plugs in the fire box is likely to be much affected by the smoke and flames to which they are exposed; but in such case'it is shown that an experienced mechanic can determine the metal of the plug by the sound when tapped with a hammer, and thereby know whether it is a screw plug or driven plug. To drive a screw plug in with a hammer is manifestly dangerous, as the threads are liable to be crushed, and, if there is steam in the boiler, it is quite liable to be blown out. This was just what occurred in the case of Beckert. For some reason he used a hammer instead of a wrench, and undertook to tighten a screw plug by driving it in. The threads were thereby crushed, the plug driven out, and he lost his life as a result of doing the work in a wrong way.</p>

Habeas corpus. On May 1, 1899, Charles S. Houston; a bankrupt, filed a petition in bankruptcy in tbe district court of the United States for the district of Kentucky.

Appeals from the Circuit Court of the United States for the Southern District of Ohio. These cases aré of a similar nature, and will be considered together.

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

<p>1. Shipping — Damage to Cargo— Harter Act — Efficient Cause of Loss.</p> <p>To entitle the shipowner to exemption from liability under the third section of the Harter act, the damage must have “resulted” from the causes therein specified. If the causes of the loss are several, one of which is negligence of the carrier not within that section, and that negligence, and not the sea peril, would, under the settled rules of construction as between ship and shipper, be deemed the efficient cause of the loss, then the exemption of the statute does not apply.</p> <p>3. Same — Damage to Cargo — Unfastened Porthole — Seaworthiness.</p> <p>The steamer M. carried case goods in a between-decks compartment in which was a port 8 or 10 feet above the water line. While on á voyage from New York to London this port was found open, having let In sea water which damaged the cargo, as the port had been unfastened at the Inception of the voyage. The compartment was filled with case goods, so that In order to close the port from the inside during the voyage it would have been necessary to open a hatch that was battened down and remove cargo in order to get to the port. Evidence was given that the port had been once closed by the carpenter when the loading began, and the cause of Its being afterwards opened during loading did not satisfactorily appear; the most probable surmise being that it was done by workmen engaged in stowing the cargo, who afterwards forgot to' refasten the port. Melé, that the open port at the beginning of the voyage, the condition of which was unknown to the officers of the ship, made the ship unseaworthy as to cargo stowed in that compartment, since knowledge that such a port is open is one of the indispensable requisites and conditions for closing it when necessary during the voyage.</p> <p>8. Same.</p> <p>The failure of the owner to maintain a watch on the ports during loading, and the negligence by which the port was suffered to remain open when the ship sailed, held a failure “in proper stowage,- care and custody” within the first section of the Harter act.</p> <p>Í Same — Harter Act — “Management op the Ship. ”</p> <p>Melé, that whether the term “management of the ship,” within the third section of the Harter act does or does not include the care of the ports in the immediate preparation for the voyage, negligence in the care of the ports, so far as necessary to seaworthiness, is not excused by that section, because the shipowner is himself made answerable by that section for due diligence in the fitness of the cargo compartments, including the closing of the ports or other acts necessary to seaworthiness of the vessel, so that he is answerable for a failure by any of his servants in that regard.</p> <p>5. Same — Bill op Lading — Exemption op “Robbers” and “Barratry.”</p> <p>It was urged that the port had been opened feloniously in an attempt at theft;t helé, (1) that there was no sufficient evidence of such acts, and (2) quaere, whether in any event the exemption of “robbers” and “barratry” could be extended beyond the direct and proximate consequences of accomplished acts of theft or robbery or to mere incidents of such attempts unaccomplished, which diligence would have avoided.</p> <p>0. Same — Bill op Lading — Exemption por Latent Defects.</p> <p>The hill of lading exempted the carrier for “latent defects even existing before shipment or sailing on the voyage; held, that an open port, though unknown to the master before sailing, was not such a “latent defect”</p> <p>7. Same — Damage to Cargo — Bill op Lading — Exemptions to Apply “During Loading” — Harter Act.</p> <p>A bill of lading provided that the exemptions therein “shall apply not only during the loading and voyage, but during the discharge and until the goods are actually delivered to the consignee”; held, that the shipowners’ exemptions were not thereby extended in this case, since the bill of lading in adopting only the Harter act exemptions in these respects, expressly excluded all losses resulting from negligence in regard to seaworthy conditions.</p>

<p>In Admiralty. Suit to recover for shortage in delivery of cargo.</p>

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

<p>Appeal — Reversal—Failure ok Declaration to Snow Jurisdictional Facts.</p> <p>The judgment of a circuit court will be reversed on writ of error, when the record fails to show the diversity of citizenship necessary to give that court jurisdiction; but the plaintiff, on payment of the costs of the trial had, will be permitted to amend Ms declaration to show such jurisdictional facts.</p>

<p>1. Municipal Bonds — Street Improvement — Application—City’s Duty — Division op Proceeds.</p> <p>Acts 20th Gen. Assem. Iowa, c. 20, § 1, declares that cities may improve streets, etc., and assess the cost on abutting property, and provides that such assessment shall constitute a sinking fund for the payment of the improvement of the street on which the property abuts, “and should be -used and appropriated for no other purpose,” and, to provide for defraying the cost of such improvements in the first instance, the city may issue bonds, all of which shall express on their face the name of the street to defray the cost of which they were issued, and that the proceeds of such bonds shall be used for no other purpose than the payment of the cost of improving the particular street therein named. Held, that a city, having issued such bonds, was charged, as a trustee, with the duty of collecting and applying thereon the assessments on the property abutting on the particular street therein named.</p> <p>8. Same — Trusts—Appraisement—Equity Jurisdiction.</p> <p>Where a bill against a city having issued bonds for a street improvement under Acts 20th Gen. Assem. Iowa, c. 20, § 4, charged that the city had misappropriated assessments collected to other streets, in violation of the act, and to the payment of other bonds, and that other assessments were still uncollected, which the city would also misappropriate unless restrained, a court of equity had jurisdiction to compel the city to perform its duty, as trustee, to collect and properly apply such assessments; notwithstanding the city, by the terms of the bonds, had Incurred an absolute liability for their payment, which would sustain an action at law.</p>

<p>1. Bill of Review — Objection to Time of Filing — Pbactice.</p> <p>Where a bill of review affirmatively shows that it was not filed in time under the law and the practice of the court, the objection may be taken by demurrer; otherwise it should be made by answer.</p> <p>S. Same —Effect of Leave to File.</p> <p>The fact that a bill of review for error of law apparent on the face of the record was filed by leave of court is no defense to the objection that it was filed out of time, since such a bill may be filed without leave as a matier of right, and the leave granted gave no additional rights.</p> <p>3. Same — Limitation of Time fok Filing — Application of Statute Regulating Appeals.</p> <p>There being no statute fixing the time within which bills of review must be filed, federal courts of equity extend tbe provisions limiting tbe time for suing out an appeal or writ of error by analogy to bills of review for error appearing on the face of the record; and, where Uie time for taking an appeal from a decree is limited by tbe statute to six months, a bill of review on that ground will not be entertained after the expiration of that time.</p>

<p>1. Statutes — Amendatory Acts — Validity.</p> <p>In the absence of constitutional restriction, an amendatory statute will be uphéld though it purports to amend a statute which has previously been amended, or which was for any reason invalid.</p> <p>2. Same — Amendment of Judiciary Act.</p> <p>26 Stat. 828, § 7, creating the circuit courts of appeals, which authorized an appeal to that court from an interlocutory order granting or continuing an injunction, was amended by Act Feb. 18, 1S95 (28 Stat. 666), “to read as follows: * ⅜ By Act June 6, 1900 (Stat. 1899-1900, p. 660), the original section was again amended, without any express reference to the prior amendment, “to read as follows: * ⅞ Held, that the later act was valid, and operated to repeal the amendatory act of 1895.</p> <p>3. Appeal — Order Denying Preliminary Injunction.</p> <p>26 Stat. 828, § 7, creating the circuit courts of appeals, as amended by Act June 6, 1900 (Stat. 1899-1900, p. 660), contains no provision authorizing appeals from interlocutory orders denying an injunction, and since said amendment an appeal from such an order will not lie.</p>

This suit involved a controversy between a judgment creditor and a mortgagee of real estate over the priority of their respective liens. The appellee, the Trust Company of America, obtained a judgment on September 16, 189.'!. for $'11,502.20, in the district court of Shawnee county, in the state of Kansas, against Erasmus Bennett and Edwin R. Bennett, upon a debt which they incurred in the year 1891.

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

<p>1. Receivers — Jurisdiction to Appoint — General Receivership por Corporation.</p> <p>The courts in any jurisdiction may, in a proper case, take possession through receivers of property within its limits, independently of the question of the domicile of the owner; but, where the purpose of a suit is to wind up a corporation, or a joint-stock association, or a partnership, on account of alleged insolvency or fraudulent transactions, or where a-general receivership of the property of such concern is sought, the initial proceedings should' be, at the place of domicile, and other receiverships should be Ancillary thereto.</p> <p>2. Corporations — Appointment op Receiver — Hearing on Application.</p> <p>An interlocutory receivership of a corporation should not he granted, except in extreme emergencies, unless after public notice, so that creditors and stockholders generally may intervene and be heard on the application if they desire. A receiver is not essential to give the court jurisdiction over the assets of the corporation, which attaches from the time of the filing of the bill; and, moreover, the court may, in case of emergency, take actual possession of such assets by appointing its marshal custodian, without interfering with the usual operations of the corporation.</p> <p>!S. Same — Requisites of Bilí,.</p> <p>To justify a court in appointing a receiver for a corporation, it is essential that the bill should entitle the complainant to some final equitable relief to which the receivership is appropriately incidental.</p> <p>4. Same — Grounds for Appointment of Receiver — Application by Minority Stockholders.</p> <p>A court of equity in the domicile of a corporation will not appoint a receiver therefor on a bill filed by minority stockholders, to the end merely that such receiver may appear and represent the corporation in litigation instituted by complainants in a court of another district, to which the corporation is a necessary party, but in which it has refused to appear in accordance with a vote of a majority of its stockholders. Whatever remedy the complainants may have in such case, an interlocutory-order appointing a receiver for the corporation is not appropriate.</p> <p>5. Same.</p> <p>A court of equity will not, on the application of minority stockholders, interfere with what has been approved by the majority, unless the complainants have a clear and substantial grievance.</p> <p>6. Same.</p> <p>The general rules with reference to the appointment of temporary receivers stated.</p>

<p>1. Lost Instruments — Action to Recover — Indemnity.</p> <p>A court of law--especially one which is vested with jurisdiction both at law and in equity — has power to require a plaintiff to give a bond of indemnity as a condition precedent to a recovery in an action brought therein on a lost negotiable instrument.</p> <p>2. Same.</p> <p>The payee of a negotiable instrument, who claims to have lost the same before maturity, but that it had not been indorsed, should not be allowed to recover thereon against the maker without giving reasonable indemnity, unless the evidence that the paper has been actually destroyed is so cogent that there is practically no risk of its reappearance. A finding of the jury in such an action that the instrument was not negotiated, but was lost while unindorsed, is not in itself a ground for dispensing with the requirement of indemnity, since it would not be available to the maker as a defense against an action by a third person who produced the instrument properly indorsed.</p>

This was an action for damages for an excessive levy. In the amended complaint upon which the action was tried the defendant in error, J. L. Fuller, alleged.that on October 4, 1894, the plaintiff in error, Sue A. Hoyt, caused a writ of attachment against him for the sum of $517.50 to be levied upon 23,000 bushels of his corn in the crib, which was then situated in Guthrie county, in the state of Iowa; that this property was worth $11,500, and the levy was excessive in the…

<p>1. Army — Pay op Officers — Bight to Commutation for Quarters.</p> <p>Under section 1480 of the army regulations, which provides that “officers on duty, without troops, at stations where there are no public quarters, are entitled ro commutation therefor,” any suitable quarters provided by the government for the use of an officer answer the requirement J'or "public quarters,” though not expressly built for army officers; and an officer assigned to duty as an Indian agent, and furnished a suitable building on ihe reservation for his quarters, without charge, is not entitled to receive commutation for quarters.</p> <p>2. Samk — Overpayment op Officer through Mistake of Law— Recovery</p> <p>Where an army paymaster has paid an officer a sum a.s a commutation allowance through an error of law, the United States is not bound by such payment, and may recover the money so paid in a proper action, with interest from the date when the officer’s accounts were settled by the treasury department, at the rate established by the laws of the state in which the action is brought.</p>

Ill Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. The plaintiff in error, Staver Carriage Company, sued in assumpsit to recover damages for alleged breach of a contract for the sale of tire steel. «• The court below sustained a demurrer to the declaration as amended, and the plaintiff elected to stand by its pleading, whereupon judgment was entered against it, and writ of error issued.

<p>1. PniN’eii’Ai, and Surety — Discharge or Surety.</p> <p>If the obligee in a bond obtains control of money or property of the principal therein, which he may lawfully apply io the discharge of that principal’s obligation to him, and to which he is not otherwise ontUlcd, and then voluntarily surrenders or releases the money or property, so that the surely loses the benefit of the security it furnishes, the latter is discharged from liability on the bond to the extent of the value of the money or property thus surrendered.</p> <p>2. Same.</p> <p>But the release by an obligee in a bond for the payment of a decree of a levy upon real estate in Ouiorado of an execution issued upon a decree whose record constituted a lien upon the properly before, the writ was issued, and after the release of the levy, will not discharge a surety on the bond, because it does not affect the lien of the obligee nor diminish the security of the surety.</p> <p>3. Appeal and Biuiok — Breach of Appeal Bond — Damages.</p> <p>The measure of damages for tlio breach of the condition of a bond to “answer all damages and casts,” wlilcli works a supersedeas under Rev. St. m 1000, 1010, 1012, in a writ of error to reverse a personal judgment for money, or in an appeal from a decree which directs the payment of money from the appellant to the appellee, is the amount due to the obligee by the terms of the judgment or decree, jost damages for delay, and costs.</p> <p>4. Same.</p> <p>The measure of damages for the breach of the condition of a bond to “answer all damages and costs,” which is made to work a supersedeas under Rev. St. ⅜⅝ 1000, 1007, 1012, in an appeal from an order directing the issue of an execution under a decree in chancery for the payment of money, is the same as for the breach of the condition of such a bond in an appeal from the decree. It is the amount doe to the obligee under the decree, just damages for delay, and costs.</p> <p>(Syllabus by the Court.)</p>

<p>1. Mines and Minerals — Conveyance of Mineral — Severance from Surface.</p> <p>By an instrument under seal, duly acknowledged and recorded, an owner of land leased the same for a term of 100 years for a fixed price, to’ be presently paid, and an annual rental of one dollar, the lease being conditioned as follows: “It being, however, clearly understood that the possession which the said Thomas [lessee] acquires under this lease shall extend only to the use of the leased premises as a coal field; that is to say, the said Thomas shall have full right, power, and possession to search for coal anywhere on the leased premises, in any manner he may think proper, to raise the coal when found from the beds, at all times to enter and carry away the coal, ⅜ * * and to sell the same for his own benefit and profit. ⅜ * ⅞ These rights and privileges shall extend to the heirs * * ⅝ and assigns of the said Thomas during the term aforesaid.” The instrument further reserved the right to the lessor and his heirs, so long as they resided on the leased premises, to dig whatever coal they might want for their own use, “but not to sell, so as to interfere with the works of said lessee.” Held, that such instrument was a present demise, and, though in terms a lease, operated not only to work a severance of the surface of the land from the underlying coal, but as a sale of the coal with the right of removal within 100 years, and that after such severance the continued occupation of the surface of the land by the lessor and those claiming under him did not create title in them to the coal by adverse possession or by limitation.</p> <p>3. Same — Construction—Operation of Conveyance.</p> <p>(The title to the underlying coal having passed by such instrument to the lessee, the possession ivas thereafter referable to such title, which could only be extinguished by actual adverse possession distinct from possession of the surface. The failure of the lessee to enter and mine the coal for any length of time short of the 100 years would not affect his title, nor would it be forfeited to the lessor by a failure to pay the annual rental for a number of years, in the absence of any provision for such forfeiture in the lease.</p>

<p>1. Banks — Powers of Cashier — Certification of Check Drawn by Himself.</p> <p>'The cashier of a hank has no authority, by virtue of his office, to bind the bank by a certification of his own individual cheek drawn thereon; and, as in this case he had neither real nor apparent authority, the certification was invalid.</p> <p>2. Payment — Money Obtained Illegally — Recovery by Owner.</p> <p>A creditor who receives payment of his debt in money in due course of business, and in good faith, cannot be required to repay the money to one from whom the debtor illegally obtained it.</p> <p>3. Banks — Powers of Cashier — Draft Issued in Payment of Individual Debt.</p> <p>The cashier of a bank, as .such, has no authority to issue cashier’s drafts to his own order in payment of his individual debts, and a creditor accepting a draft so drawn takes the risk of such lack of authority.</p> <p>4. Same — Evidence to Establish Implied Authority.</p> <p>To warrant a finding that the cashier of a bank had implied authority to issue cashier’s drafts to his own order in payment of his individual debts, such as will bind the bank and protect a creditor in accepting a draft so drawn for a sum so large as to be out of the usual line of conduct in the banking business, a settled course of business must be shown, by which he •was permitted, with the acquiescence of the directors, to exercise such authority during a series of years or in numerous transactions; and evidence that he had drawn not exceeding nine drafts in all in payment of his own debts, only four of which were to his own order, and all of which were issued within the preceding six months, is insufficient.</p>

<p>1. Statutk os ftoAuns — Salks—Barter ani> Exchange.</p> <p>The statute of frauds, requiring some part of goods purchased to be delivered or some part of the purchase money lo be paid to render a sale valid, whore no memorandum in writing is made, is applicable to a case of barter and exchange; each party in such case being both a buyer and a seller.</p> <p>2. Samk — Part Payment ok Prick.</p> <p>Bnder the statute of frauds of Now York, which provides that a contract for the sale of goods, where no note or memorandum in writing is made, shall he void unless the buyer shall receive some part of the goods, or "shall at the time pay some part of the purchase money,” as construed by 1he courts of the state, in order that the receipt by the seller of a part of the consideration for goods sold, after the time when a verbal agreement for the sale was originally made, shall render the contract valid, the payment must have been made for the expressed purpose of complying with the statute, or there must have been ht the timo a restatement or rr-a£Rrmauee of the contract.</p> <p>3. Same.</p> <p>Plaintiff! and defendant were the owners of all but 5 of the 2,500 shares, of a joint-stock mercantile company, of which plaintiff was vice president and general manager and a director, while his father was also a director, and his brother the manager of the company’s business in Japan. Plaintiff owned one-fourth of the stock, which was pledged to defendant to secure an indebtedness; defendant being the owner of the remainder of the stock. The parties made an oral agreement that plaintiff should “get out” of the business, and he and his relatives should resign their positions, in consideration of which he should receive one-fourth of the goods owned by the company, after deducting the amount of his indebtedness to defendant. After this agreement there was talk of a different arrangement, and several days passed, when plaintiff delivered to defendant the resignation of himself and brother; stating that it was in fulfillment of the agreement. These were accepted by defendant, and plaintiff subsequently brought suit to compel delivery of the goods. Helé that, in legal effect, the contract was one for the exchange of plaintiff’s shares of stock for the goods, and that, regarding plaintiff as a buyer and the resignations as a part of the consideration to be paid, there was no such restatement or reafiirmance of the contract at the time of their delivery as to render the payment one made “at the time,” which would validate the contract under the New York statute of frauds; defendant, regarded also as a buyer of plaintiff’s shares, having neither received any part of the goods nor paid any part of the price. Shiprüan, Circuit Judge, dissenting.</p> <p>4. Contract — Validity—Public Policy.</p> <p>A contract by which a shareholder and officer of a joint-stock association agreed to resign his office and sell his stock to another shareholder, receiving payment in goods belonging to the association, while ordinarily .it would be void, as against public policy and a violation of trust towards the association, cannot be so regarded as between the parties, where they are the principal beneficial owners of the association, although there be one or more minor holders of stock, each of whom is liable for all the debts of the association, who do not consent and have no knowledge of the.transaction. Thomas, District Judge, dissenting.</p>

In Bankruptcy. On proceedings to review an order of Jean A. Flit tie, referee, requiring a creditor to surrender a preference, or, in the alternative, that its claim previously allowed be expunged.

In Bankruptcy. On creditor’s petition for an order allowing him to subject property claimed by the bankrupt as exempt to the payment of a debt against which such property is not exempt under the state statute.

<p>Bankruptcy — Preferences—Payments on Account.</p> <p>Tbe fact that partial payments made by a bankrupt to a creditor on account, within four months prior to the filing of petition, in the usual course of business, and received by the creditor without knowledge of the debtor’s insolvency, were made for the purpose of obtaining more goods on credit, and that the creditor extended such credit, does not take the case out,of the established rule that such payments constituted preferences, which, under Bankr. Act 1898, § 57g, must be surrendered before the creditor’s claim can be allowed against the bankrupt’s estate.</p>

<p>1. Corporations — Requisites op De Facto Corporation:</p> <p>There cannot be a corporation de facto where such corporation could not exist de jure.</p> <p>2, Sauk — Unauthorized Assumption of Corporate Francuise — Banks under Dakota Statute.</p> <p>Comp. Daws Dak. § 2892, which provides that “the due incorporation of any company claiming in good faith to be a corporation under tills chapter and doing business as such, or its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such de facto corporation may be a party,” is merely declaratory of the law as it previously existed, and applies only to de facto corporations. There having been no law of the territory of Dakota under which a corporation could be formed for banking purposes, an attempted incorporation for that purpose under the laws of the territory is not within the protection of such provision, and the incorporators may be charged as partners on legal contracts made iu the name of such pretended corporation.</p> <p>3. Bankruptcy — Partnership—Illegal Incorporation.</p> <p>An association of persons claiming to incorporate as a bank under the laws of the territory of Dakota, by which Such corporations were not authorized, and which has conducted business as a bank since then, under the corporate name assumed, may be held subject to the provisions of Bankr. Act 1898, as a partnership.</p> <p>4. Same — Acts of Bankruptcy — Consent to Appointment of Receiver.</p> <p>The consent of a partnership, although insolvent, to the appointment of a receiver for its property by a state court, and the surrender of its property to such receiver, do not constitute an act of bankruptcy, under Bankr. Act .1898, where it is not shown that any creditor thereby obtained preference over another.</p> <p>6. Same — Insolvency—Partnership.</p> <p>To constitute insolvency of a partnership, within the meaning of Bankr. Act 1898, the property of the firm, together with that of all the partners applicable to the partnership debts, must be insufficient to pay such debts.</p>

<p>1. Unfair Competition — Fraud and Deceit the Foundation of Action for.</p> <p>The basis of a suit for unfair competition in trade is fraud. To warrant relief in such a suit, there must be proof of the fraudulent Intent to palm off the goods manufactured by others as those manufactured by the plaintiff, or proof of facts and circumstances from which such an intent and fraud may be fairly inferred.1</p> <p>2. Appeal — -Decree Presumptively Correct.</p> <p>When a court has considered conflicting evidence, and made its finding and decree thereon, they must be taken as presumptively correct, unless an obvious error has intervened in the declaration of the law, or some serious mistake has been made in the consideration of the evidence.</p> <p>3. Equity — Rin/rxo ox Objections to Evidence — Necessity.</p> <p>A ruling by the trial court upon objections to evidence in equity must be obtained or refused, an exception taken, and these proceedings must appear in the record, to warrant a consideration of the questions they suggest in an appellate court.</p> <p>(Syllabus by the Oourt)</p>

For former opinion, me 96 Fed. 237. The bill of complaint of the William Mann Company, appellant, alleges infringement of letters patent of the Fnited States No. 58L.123, granted to Leon M. Leslie, assignor to the William Mann Company, for “improvemenfs in binders,” dated April 20, 1807, on application filed August 3, 1896, and the appeal is from a decree of dismissal on final hearing.

<p>1. JURISDICTION 01' CONVICTION OF INFAMOUS CRIME.</p> <p>Tbe circuit courts of appeals have no jurisdiction of cases of convictions of capital crime.</p> <p>2. Jurisdiction — Test of Conviction of Capital Grimm.</p> <p>The test which determines whether or not a case is one of conviction of a capita! crime is not the penalty which is actually imposed, but it is that which may be imposed. If the crime may be punished with death, and there is a conviction, it is a case of a conviction of a capital crime.</p> <p>3. Murder of an Indian f.y an Indian a Capital Crime.</p> <p>The murder of one Indian by another is punishable with death, under section 5339, Iiev. St., and section 9, c. 341, p. 885, 23 Stat. The power of the federal courts to punish this offense with death was not revoked by 29 Stat. 487, c. 29.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>Abatement and Revival — Suit for Forfeiture for Violation of Customs Laws — Death of Defendant.</p> <p>An action by the United States to enforce a forfeiture of the value of imported goods because of fraudulent undervaluation, under section S> of the customs administration act of dune fO, 1890, is one highly penal in character, and abates on the death of the defendant, and cannot be revived against his legal representatives. a</p>

<p>Master and Servant — Injury of Servant — Assumed Risk.</p> <p>An employ®, a part of whose duty for more than two years had been to sweep and clean out the bottom of an elevator shaft several times a week, who was injured, while performing such duty, by the descent of the car upon him, must be held to have assumed the risk of such injury, where the danger was obvious, and no change had been made in the mode of operating the elevator during the time of his employment. Smith v. Baker [1891] App. Cas. 325, doubted.</p>

The action in the court below was in case for damages growing out of the publication of an alleged libel.

<p>In Error to tbe Circuit Court of tbe United States for tbe Northern Division of tbe Northern District of Illinois.</p> <p>The defendant in error was the plaintiff in the court helow, and obtained a verdict and judgment against the plaintiff in error, defendant helow, in the sum of two thousand eight hundred and ninety-five dollars damages for personal injuries received by the defendant in error in the mines of the plaintiff in error. The principal error relied upon is that the court refused, at the conclusion of the testimony, on motion of the plaintiff in error, to instruct the jury to find a verdict for'the plaintiff in error.</p> <p>The evidence was somewhat contradictory, but tbe facts found by tbe verdict of the jury, upon the instructions given, and supported by a sufficient weight of evidence, may he stated as follows:</p> <p>The plaintiff in error was, on the 20th of December, 1894, a corporation under the laws of Indiana, conducting a coal mining business in Sullivan county in that state.</p> <p>The general plan of the mines, so far as it need be considered, is, in substance: A long horizontal passageway called the “main entry” runs north and south past the foot of the hoisting shaft. This passageway is used for-drawing cars of coal to the shaft. Other similar passageways used for the same purpose are cut at right angles to the main entry or passageway, and they also run in a horizontal direction, and the coal cars are drawn in them from the “rooms” where the miners excavate the coal, over to the main entry, where they turn and traverse the main entry to the hoisting shaft. These latter passageways, which run east and west, or at right angles to the-main passageway or entry, are high enough for a man to walk in and wide enough for cars to he pulled through, averaging from six to nine feet in width.</p> <p>From these east and west passageways the miners bore into the coal veins at regular intervals or distances along the passageway, and make what are-called .“rooms.” The room is made by excavating or removing tbe coal, and it is in these rooms that the actual mining work of dislodging coal is performed. Before the room is made, there is a piece of technical work performed called “turning the room,” which means making a doorway from the passage into the room. This is done by picking or blasting a hole about four feet wide and four feet high into the side of the passageway, a distance of about six feet. When the miner clears out such a hole he may then remove the coal lying beyond and open up the area called the “room.”'</p> <p>Sections 7472 and 7479 of the Mining Act of Indiana (Burns’ Rev. St. 1S94) are as follows:</p> <p>“7472. Duties of Bosses. — That the mining boss shall visit and examine every working place In the mine at least every alternate day while the miners of such place are, or should be at work, and shall examine and see that each and every working place is properly secured by props or timber, and that safety in all respects is assured, and, when found unsafe, he shall order and direct that no person shall be permitted In an unsafe place, unless it be for the purpose of making it safe. He shall see that a sufficient supply of props, caps and timber are always on hand at the miners’ working places. He shall see, also, that all loose coal, slate and rock overhead wherein miners have to travel to and from their words are carefully secured.”</p> <p>“7479. Mining Boss — Duties.—That in order to secure the proper ventilation of each coal mine, and promote the health and safety of the persons employed therein, the owner, operator, agent or lessee shall employ a competent mining boss, who shall bo an experienced coal miner and shall keep a careful watch over the ventilating apparatus and the air ways, and shall see that, as the miners advance their excavations, all loose coal, slate and rock overhead are carefully secured against falling therein, on the traveling and airways. He shall measure the air current at least once a week at the Inlet and outlet, and at or near the face of the entries; lie shall keep a record of such measurements which shall he entered in a book kept for that purpose, the said book to be open for the inspection of the mine inspector. He shall, also, on or about the first day of each month, mall to (he inspector a true copy of the air measurements given, stating, also the number of persons employed in or about said mine, the number of mules and horses used and the number of flays worked in each month. Blanks for this purpose shall be furnished by the state to the inspector and by the inspector to each mine boss.”</p> <p>In the operation of these mines the miners were paid sixty cents a ton for the coal mined and loaded, and two dollars for turning The room. In a general way, a miner, with his help or buddy, worked a room, each other miner, with his help or buddy, working some other room; but occasionally •a miner had more than one helper, especially when he wished to help one who was waiting for a place as an employee.</p> <p>The plaintiff. Hermau Schmidt, was a practical coal miner of about twenty-four years experience, but had been employed in the defendant’s mine for about two weeks. With his buddy, he was engaged in mining coal from one of the rooms.</p> <p>On the day when the accident occurred the mine was shut down to such an extent that there could be no service of the coal cars. At the breakfast table that morning Schmidt was told by another miner, Ferdinand Yochem, that Yochem was about to start a new room about a thousand feet distant from the room assigned to Schmidt, and that if Schmidt and his buddy would help in turning this new room, the two dollars would be divided between them. To this Schmidt agreed. They went separately to the mine, the superintendent having been told by Schmidt that he was going to his room to finish picking up some loose coal, so that the room would be ready for the cars when they started again; and having been told by Yochem that he was going to the place assigned for the turning of the new room.</p> <p>There was some dispute on Hie trial whether the superintendent had been told by Yochem that Schmidt would assist him in the turning of the room. The testimony of Yochem on that subject was as follows:</p> <p>“Q. Did or did you not have any conversation with the superintendent about whom you should have to help you?”</p> <p>“A. Well, I said to Lawrence [the superintendent] I take Fenger LYochom’s buddy] with me to this place and he said all right.”</p> <p>“Q. Tor said nothing abont Schmidt? Did you say anything to him about Schmidt or Neuroth.?”</p> <p>“A. Tes, I told him in the morning I go down, I said to Schmidt and Neu-roth you got lots of coal, you come down and help me in my place, and he said all right, I have nothing against it.”</p> <p>“Q-.When you were talking with the superintendent was Schmidt there?”</p> <p>“A. No, sir, Schmidt he was away before me at the boarding house.”</p> <p>The instructions given to the jury by the court upon this point were as follows:</p> <p>“If you believe from the evidence that the plaintiff was engaged by the defendant to work in its mine in a certain room, and that the duties of the plaintiff did not call him to assist Tochem and Fenger, then the Court instructs the jury, that, unless they further believe from the evidence, that plaintiff was authorized or permitted by the defendant or some servant of the defendant’s in charge and authority over the plaintiff to go to the place where he was injured, and that the condition of such place was unknown to the plaintiff, then the jury should find the defendant not guilty.”</p> <p>“The Court instructs the jury that if you believe from the evidence, that Herman Schmidt went to the place where Tochem and Fenger were at work, to aid them in firing the shot, without any instruction or authority or permission, expressed or implied, from the defendant or its duly authorized agent, to go there, and was injured by reason of his going there to assist in firing such shot, or to see that the same was afterwards properly fired, then the Court instructs you as a matter of law, to find the defendant not guilty.”</p> <p>There was no timbering or other protection to the passageway of the mine, and none at the place where the new room was to be turned. Immediately above this point was a fissure or seam in the ceiling of the passageway of such a .nature that a portion of the rock in the seam was supported by the piece of the wall which was to be blasted away to make the doorway. The danger imminent from this fissure could have been avoided by the putting in of appropriate timbers. Tochem and the mine boss talked of this rock the day before, Tochem saying that the place “looked no good,” but the mine boss saying that it could not fall down; that it was solid rock. Schmidt’s attention, so far as the evidence goes, was not called to this fissure.</p> <p>After doing a little work, on the morning of th'e injury, in his own room, Schmidt and his buddy went to the place where Tochem proposed to turn the new room. The blast was set, and Tochem and Schmidt, with their buddies, withdrew until it was fired off. Shortly afterwards they returned, Schmidt being in advance, when the rock overhanging the seam fell, and caused the injuries for which the action was brought. Had the gangway at this place been properly timbered, the rock would not have fallen.</p> <p>Some of the counts of the declaration proceed upon the common law obligation of the mining company to furnish a safe place in which the employees may work, and some of them upon the special statutes hereinbefore set out.</p> <p>The bill of exceptions does not show that any exceptions were taken, after instructions, before the withdrawal of the jury, and the brief filed by the plaintiff in error does not set out specifically any instructions given, or instructions refused, or any evidence admitted, or evidence ruled out, upon which error is predicated.</p>

On Motion by Plaintiffs for Leave to Continue Suit as Poor Persons. In 1893 this action was instituted to recover damages for the death of the husband and father of plaintiffs. A trial was had, and a judgment entered on the verdict of a jury for the sum of $8,000.

<p>1. Bankruptcy — Petition vok Review — Practice.</p> <p>A proceeding in the circuit court of appeals, under Bankr. Act 1898, f 24b, to review proceeding's of a district court, sitting in bankruptcy, in matter of law, is required by General Orders No. 37 to follow as nearly as may be the rales of equity practice established by the supreme court; and the petition must in some way set out enough of the tenor of the record in the district court to present the issue of law which it seeks to raise.</p> <p>2. Same — Parties.</p> <p>A circuit court of appeals cannot revise the proceedings of a district court in bankruptcy, on petition therefor filed under Bankr. Act 1898, § 24b, without an issue made and presented by parties who have a substantial interest in the controversy, or at least without a proper opportunity given therefor; and, where it appears that a creditor against whom a petition for review is filed has no longer any interest in the question sought to he raised, the petition will not he heard until other creditors who may have an interest are brought in by proper notice.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Exemptions—Effect of Waiver in Note.</p> <p>Under Bankr. Act 1898, § 70a, and its other provisions relating to exemptions, exempt property claimed by the bankrupt constitutes no part of the assets in bankruptcy, and no title thereto vests in the trustee; nor is the court given jurisdiction and control over such property, where the exemption is allowed by tbe laws of tbe state, by tbe fact that a creditor bolds notes in wbicb tbe bankrupt waived tbe benefit of tbe exemption laws.</p>

<p>BANKRUPTCY — COMl'KKS «TON OF 1ÍKFKHKW.</p> <p>Ruder general orders in bankruptcy No. 35, par. 2 (32 C. C. A. xxxiy., 89 Fed. xiii.), which provides that “the compensation of referees prescribed by the act shall be in full compensation for all services performed by them under the act or under these general orders,” a court is not authorized to allow compensation to a referee in addition to that prescribed in Bankr. Act, § 40a, because of services performed on a reference to him of an application for discharge as authorized by general order 12, par. 3 (32 G. C. A. xvi., 8!) Fed. vii.).</p>

In Bankruptcy. On petition for review of certain orders of the referee made in the course of proceedings for the election of trustee.

<p>Suit to Recover Drawbacks on Imported Articles Re-exported.</p>

<p>1. Post Office — Offenses—Indictment for Mailing Obscene Matter.</p> <p>An indictment for violation of Rev. St. § 3893, prohibiting the mailing of publications of a certain described character, must charge specifically that the publication mailed by defendant was of the character declared nonmailable by the statute, and it is not sufficient to merely set out a copy of such publication, leaving its nonmailable character to be inferred therefrom; nor is the defect cured by the conclusion of a subsequent count, “contrary to the form of the statute.”</p> <p>2. Same — Description of Offense — Knowledge.</p> <p>An indictment under Rev. St. § 3893, which charges that the defendant, “did knowingly deposit and cause to be deposited” in a post office, for mailing, certain newspapers containing an article claimed to be nonmailable under said section, is fatally defective on demurrer where it fails to charge that the defendant knew at the time that the papers contained matter prohibited by the statute.</p>

<p>Patents — invention—Sweat Pads.</p> <p>The Barstow & Hanna, patent, No. 353,913, for a sweat pad for horse collars, is void for lack of invention, the article described being in structure merely an imitation of the collar itself.</p>

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

<p>Collision — Burden of Proof — Barges Improperly Anchored.</p> <p>The rule is strict in behalf of a vessel injured in collision while at anchor, where properly anchored; but there is no presumption in favor of barges which' were unnecessarily anchored where they swung into and obstructed the narrow channel of a river, and were left there at night with no one to attend to their lights. The D. H. Miller, 22 C. C. A. 597, 76 Fed. 877, distinguished.</p>

Bill by the Celluloid Company against Robert Ifl. McOafferty and Morris L. Holton, co-partners under the firm name of MeCafferty & Holton, for infringement of letters patent No. 542,452, dated July 9, 1895, and No. 546,360, dated September 17, 1895.

On January 19, 1899, Crawford Livingston, the defendant in error, brought an action in the court below against the county of Hughes, in the state of South Dakota, the plaintiff in error, to recover the amount doe upon coupons cut from 56 bonds issued by that county, and dated July 6, 1891.

<p>BAmatonTCY — Voluntary Petition — Right to Withdraw.</p> <p>Where there are no creditors of the estate of a voluntary bankrupt who have proved their claims or who object thereto, he is entitled to withdraw his petition, and his right cannot be affected by the objections of subsequent creditors, who have acquired liens on his wages, and desire to prevent the institution of new proceedings.</p>

<p>1. Bankruptcy — Partnership—Firm ano Individual Debts.</p> <p>Where a partnership and its members have been adjudged bankrupts, individual notes of a partner, executed to a creditor of the firm, and credited, on a. note of the firm held by such creditor, constitute prima facie payments of so much of the firm indebtedness, and are provable against the separate estate of the partner who gave them.</p> <p>2. Same — Brooks op Heat. Nature op Claim.</p> <p>The real nature of the transaction relating to a note given by a bankrupt firm may be shown, to determine whether the debt is one provable against the firm or the individual partners, notwithstanding the failure to enter the transaction at large on the books of the creditor.</p> <p>3. Same — Solvent Partner op Bankrupt as Creditor.</p> <p>On the bankruptcy of a partnership and its members, one of whom was also a member of another firm, which is solvent, because of the solvency of the remaining partner, the latter becomes an individual creditor of the bankrupt estates as to an indebtedness growing out of dealings between his firm and the bankrupt partner or the bankrupt firm for the amount which might be recovered in an action of account to settle the partnership dealings.</p> <p>4. Same — Interest on Balances between Partners.</p> <p>A solvent partner in a firm is not entiiled to claim interest against the estate in bankruptcy of his partner on the balances in his favor shown by the partnership books, in the absence of a mutual agreement that such interest should be charged.</p>

<p>In Bankruptcy. On objection by trustee to sufficiency of claim.</p>

<p>Bankruptcy — Provable Debts — Claim: Arising After Piling of Petition.</p> <p>Tbe rights of the creditors of a bankrupt in general relate to the date of the filing of the petition. A debt not then in existence, although arising before the adjudication, cannot be proved against his estate, nor is it released, by his discharge; and the trustee takes title, under Bankr. Act, §' 70, only to property or rights of property with which the bankrupt was so vested prior to the filing of the petition that he could transfer them.</p>

<p>In Bankruptcy.</p>

<p>Bankbottcy — Provable Debts — Dkcuke fob Costs.</p> <p>Costs adjudged against a complainant, after his adjudication as a bankrupt, in a suit brought by him prior to such adjudication, do not constitute a provable debt against his estate, under Bankr. Act 1898, § (51!, and he is not entitled to be protected by the bankruptcy court from arrest, on an execution therefor. ^</p>

<p>Bankbuptcy — Exemptions—Catuvornia Statute.</p> <p>Under Code Civ. Proe. Cal. § 090, subd. 0, which exempts from execution “two horses * * ⅞ and one cart or wagon, by the use of which a cartman, drayman, * * ⅜ teamster or .other laborer habitually earns his living,” a bankrupt whose occupation was that of a white-washer, kalsominer, paper hanger, and repairer of plastering, and who owns a horse and wagon, which he uses exclusively for the'purpose of conveying his supplies, tools, ladders, etc., from his residence to the places where he has jobs of work, and without which he could not carry on his occupation at a profit, is entitled to claim such horse and wagon as exempt.</p>

<p>1. Patents — Suit for, Infringement — Estoppel by Prior Adjudication.</p> <p>To sustain a defense of estoppel in a suit for infringement by a prior adjudication between the same parties in relation to the same patents, the proofs must show that the identical claims of the patents and parts of the patented device were involved in the two suits.</p> <p>2. Same — Construction of Claims — Scope of Invention.</p> <p>The claims of a patent, unless they are restricted in terms or by necessary implication, will include all changes of form, whether of size or shape, or changes in location of the parts of a combination, if the mode of operation is not changed, and the parts still perform the same duty.</p> <p>3. Same — Separate Improvers — Equivalents.</p> <p>. In patents granted to different improvers on former constructions designed to produce the same result the invention of each is- measured by his improvement. One cannot invoke the doctrine of equivalents against another merely because ,a part produces the same or a similar result.</p> <p>4. Same — Infringement—Steam Valvb.s.</p> <p>The Frost patent, No. 428,072, for improvements in steam engines, relating particularly to steam-actuated valves controlling the admission of steam into the cylinder, was not anticipated, and is valid; but such patent is not infringed by the device shown in the Metcalf patent, No. 442,905, which does not employ a steam reservoir external to the cylinder, •which is the distinguishing feature of the Frost invention.</p>

This is an appeal by the Metallic Extraction Company, the defendant below, from an order enjoining the infringement of United States letters patent No. 471,264, granted to Horace F. Brown, the appellee, on March 22, 1892, under an application that was filed August 14, 1891.

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

In Admiralty. The steamboat Longfellow, while on a voyage from Cincinnati to New Orleans, came into collision with a stone pier of the Chesapeake & Ohio Railroad bridge -which crosses the Ohio river at Cincinnaii, and was instantly sunk. The boat and her cargo were almost a total loss, the appraised value of the wreck being only 8250. Several passengers, the chief clerk, and one or more of her crew lost their lives.

<p>In Error to the Circuit Court of the United States for the District of North Dakota.</p> <p>This is an action at law for damages in the sum of $4,000 for the wrongful sale of a pledge. It was commenced in August, 1897, in one of the courts of the state of North Dakota: and the original complaint counted upon a personal liability of, and prayed for a personal judgment against, Joshua A. Hanway, who was described in the title of the action as stockholders’ agent of the National Bank of North Dakota, at Fargo, N. D. On April 16, 1898, the plaintiff, the Guarantee Company of North Dakota, a corporation, filed an amended complaint in which it alleged that the defendant, Joshua A. Han-way, held and wrongfully sold the pledge in his official capacity of shareholders’ agent of the National Bank of North Dakota, and prayed for judgment against him as sneli agent, anti not against liim personally. Thereupon, and upon May 13, 1898, the defendant tiled a petition and bond for the removal of the ease to the United States circuit court for the district of North Dakota. This petition alleged that the National Bank of North Dakota was a corporation organized under the laws of the United States; that the comptroller of the currency appointed a receiver of this bank in 1893, who served as such until August, 1895, when the petitioner was chosen shareholders’ agent, and qualified and acted as such; that upon his final accounting as such agent on December 20, 1897, the United States circuit court adjudged him to be indebted to the trust estate in a sum exceeding $10,000; that he then resigned his office as agent, and that court appointed one D. B. Holt as receiver, to wind up the affairs of the bank; that the action now before us was brought to obtain a judgment against Hanway in his official capacity, and to enforce the same as a claim against the proceeds of the assets of the bank; that it related to the winding up of the affairs of a national bank, and was ancillary to the administration of the trust; that he, as stockholders’ agent of the bank, was an officer of the United States; that the original complaint stated no cause of action against him as such officer, but this cause of action first appeared in the amended complaint; and that the time to answer, demur, or otherwise plead to the amended complaint had not expired when he presented his petition. Upon this petition the case was removed, to the United States circuit court. No motion was ever made to remand it, but an answer to the amended complaint was filed, a motion for judgment on the pipadings was made by the plaintiff and denied by the court, the case was tned without a jury, and judgment was rendered for the defendant. The writ of error challenges this judgment.</p>

<p>Removal op Causes — Citizenship op Comoration — INCORPORATION in Another State.</p> <p>A railroad corporation organized under the laws of another state, which subsequently also incorporates in Nebraska in compliance with the provisions of the constitution and statutes of that state, which require such incorporation to entitle a foreign railroad company to exercise the power of eminent domain or acquire real estate for right of way or other railroad purposes, by that act becomes a corporation of Nebraska so far as concerns its relations to the constitution and laws of that state, and subject to state regulation as a domestic corporation, as has been authorita.-tively determined by the supreme court of the state; but it does not thereby change its citizenship for the purposes of the jurisdiction of the federal courts, but remains for such purposes a citizen of the state in which it was originally incorporated, and is entitled to remove a suit commenced against it in a state court of Nebraska by a citizen of that state into the federal coui’t on the ground of diversity of citizenship.</p>

This action was brought by William II. Dent, as receiver of the First National Bank of Decorah, to recover from the Security Trust Company, as administrator of the estate of Sumner W. Matteson, deceased, the plaintiff in error, the amount which wTas alleged to be due to the receiver on five promissory notes executed by S. W. Matteson in his lifetime, which became the property of the First National Bank of Decorah, Iowa, before their maturity.

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

<p>1. Surface Water — Obstruction on Flow — Liability for Damasks.</p> <p>No action lies against a railroad company for damages on account of tbe obstruction of the flow of surface water by embankments made for its roadbed.</p> <p>2. Same — Slough.</p> <p>A slough which carries water only in time of freshet or excessive rainfall is not a water course, the obstruction of which by a railroad embankment without openings will render the company liable for damages.</p> <p>8. Water Courses — Negligent Obstruction.</p> <p>The leaving of piling, used while constructing a railroad bridge across a river, standing- after its completion at such height as to collect débris and cause tbe river to overflow its banks, is negligence which renders the company liable for damages to adjacent property, caused by the overflow.</p> <p>4. Jurisdiction of Federal Courts — Amount in Controversy — Joint Suit in Equity.</p> <p>Landowners whose property is injured by the overflow of a stream, caused by its unlawful or negligent obstruction by defendant, may unite in a suit for injunctive relief in a federal court of equity, provided the injury to each of the several complainants amounts to §2,000.1</p> <p>5. Same — Allegation of Damages.</p> <p>A bill filed in a federal court by several landowners to enjoin the maintenance of an alleged nuisance by obstructing a stream and causing it to overflow upon the lands of the complainants, must clearly show that the amount of damage to each complainant is sufficient to give the court jurisdiction, and an allegation of the difference in the value of the land of a complainant with and without the overflow is not a good allegation of such damage.</p> <p>6. Equity — Jurisdiction to Abate Nuisance — Adequate Remedy at Law.</p> <p>Ordinarily, where injury is done to land by an occasional overflow of a stream, caused by the erection and maintenance of a nuisance, and the wrongdoer is solvent, the injury may be adequately redressed by an action a.t law, and a court of equity will not entertain a suit to enjoin the nuisance, but there may be cases where the constant exposure of the lands to such overflow causes damages to the owners for which they cannot recover adequate compensation at law; and in such cases, where the right is clear, a court of equity will grant relief without waiting for a judgment at law establishing- the fact of the nuisance and the complainants’ legal rights.</p>

In Equity. , Suit by the receiver of a bank to foreclose deeds alleged to have been given as mortgages. H. F. Auten, receiver of the Hirst National Bank of Little Rock, Ark., filed two bills to foreclose deeds alleged to be mortgages executed to Nick Ivupferle for the benefit of the bank.

<p>In Equity. On motion by complainant for leave to dismiss his bill.</p>

<p>1. Water Right — Abandonment.</p> <p>The abandonment of the right to divert and use the waters of a stream is not different in its character from the renunciation of any other right which is asserted and maintained by its use.</p> <p>2. Same — Express—Implied.</p> <p>Abandonment is either express or implied. It may be effected by a plain declaration of an intention to abandon. It may be inferred from acts or' failures to act so inconsistent with an intention to retain and assert the right that the unprejudiced mind is convinced of the renunciation.</p> <p>3. Finding op Chancellor Prevails where Testimony is Evenly Balanced.</p> <p>Where the chancellor has considered conflicting evidence, and made his finding and decree thereon, they must be taken to be presumptively correct, and will not be disturbed unless an obvious error has intervened in the application of the law, or some serious mistake has been made in the consideration of the evidence.</p> <p>4, Conveyance of Mill Site Cabbies Appurtenant Water Right.</p> <p>A deed of a mill site, without specific mention of a right to divert water from a stream and to use it to operate a mill which, has been used thereon, conveys the water right as an appurtenance to the mill site, in the absence of any reservation of it, of any conveyance of it to another, or any other evidence that the grantor did not intend to part with it.</p> <p>5. Water Right Appurtenant to Hite on Which It is Used.</p> <p>A water right used upon a mill site to treat ore extracted from a mining- claim, and brought to the mill site for treatment, is not appurtenant to the mining claim, hut to the mill site.</p> <p>(Syllabus by the Court.)</p>

<p>1. Pledges — -Validity op Sale — Fraud and Collusion.</p> <p>A pledgee of the bonds of a street-railroad company, securing notes given by the owners of the stock of the company amounting to something more than half the face value of such bonds, sold the same at public sale,' after due notice to all parties Interested; the makers of the notes and the company having become insolvent and made default in the payment of Interest. At the sale the bonds were purchased by a bank, which had acquired other claims against the company, for about S3,000 less than the amount due on the notes secured. This sum the bank also paid, taking an assignment of the notes. By a previous arrangement, the hank, which was of good financial standing, borrowed from tiie pledgee something over 90 per cent, of the amount it paid for the bonds, giving its own note therefor, secured by a pledge of the same bonds. The direct testimony of the parties showed without contradiction that the pledgee had no interest, direct or indirect, in the purchase of the bonds at the sale, and that its only purpose in assisting the purchaser by a loan was to obtain part payment of its debt, and the substitution of a solvent for an insolvent debtor for the remainder. Eeld that, in view of such evidence, the facts were not sufficient to impeach the good faith of the sale, and to warrant the court, in a suit to foreclose the mortgage securing the bonds, in disregarding it as fraudulent, and limiting the recovery to the amount of the original debt, to which such bonds were collateral.</p> <p>2. Same — Conditions of Sale.</p> <p>The delivery by a corporation of its bonds to a third person for the express purpose of enabling him to pledge the same as security for a loan to be obtained for the benefit of the corporation carries with it implied authority to make the hypothecation on the terms usual in such eases as to the manner of selling the bonds in case of .default in payment of the debt.</p> <p>3. Same — Law Governing.</p> <p>Where bonds are pledged in another state from that in which the debt- or resides to secure notes there payable, the law of such state governs as to the sale of the security.</p> <p>4. Same — Mutual Mistake.</p> <p>A mutual mistake by which bonds separately pledged to secure two different notes to the same creditor are applied in each case to the wrong note is immaterial, and does not affect the validity of the pledges, where, on a sale of the bonds, those constituting the separate pledges do not in either case realize enough to pay the smaller note.</p>

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

<p>Railroads — Suits to Foreclose Mortgages — Intervention by Bondholder.</p> <p>. A bolder of second mortgage bonds of a railroad company, wbo was an active participant in litigation resulting in decrees foreclosing the mortgages on the property, and its sale thereunder, is not entitled to file a petition of intervention three years after such decrees were entered, attacking the validity of the proceedings on account of an alleged fraudulent collusion between the receivers and other bondholders, by which the foreclosure of the first mortgages was brought about, where it does not appear that he has been deprived of any rights which were accorded to any other bondholder, or that he sustained any injury from such alleged fraud, if it existed.</p>

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

<p>1. Public Lands — Mineral Character — Building Stone.</p> <p>Land chiefly valuable ior granite which it contains, suitable for quarrying, and of good merchantable quality, is mineral land, within the meaning of the exception in the grant of July 2, 1864, to the Northern Pacific Railroad Company, and did not pass under said grant.</p> <p>2. Same — Railroad Grant — Exception op Mineral Lands.</p> <p>The term “mineral lands,” as nsed in excepting such lands from the grant of July 2, 1864, to the Northern Pacific: Railroad Company, was subject to enlargement in its meaning at any time before the grant attached by the definite location of the road; and. conceding that, as used and understood by congress at the time of the grant, it did not include lands chiefly valuable for building stone they contained, subsequent acts of congress prior to 1879 iixed the status of such lands as mineral, and they were excluded from the grant along the portions of the road not definitely located until after that date.</p>

<p>1. Public Lands — Patents as Evidence op Title.</p> <p>The issuing of a patent for public lands being a ministerial act, the validity of a patent depends on the legal authority of the department to issue it; and one issued under the homestead law, which shows upon its face, in connection with legislation of which the court is required to take judicial notice, that the land embraced therein had been previously appropriated and was not subject to entry under such law, is void, and is not admissible in evidence to establish title.</p> <p>2. Same — Incorporation into City — Lands within Indian Reservation.</p> <p>Act Dak. T. March 7, 1885, amending the previous act incorporating the city .of Chamberlain by extending the corporate limits of the city, not having been disapproved by congress, was valid, notwithstanding the fact that a portion of the land so included in the city was. at the time within the limits of the Great Sioux Indian reservation, since the land was within the jurisdiction of the territorial legislature, and the act in no manner affected the title, or the rights or property of the Indians therein; and on the extinguishment of the Indian title, if not before, such act, which was continued in force with the other laws of the territory after South Dakota was admitted as a state, became operative as .to the lands previously within the reservation.</p> <p>3. Same — Homestead Entries — Lands within Limits of City or Toivn.</p> <p>Act March 3, 1891, repealing the pre-emption law (26 Stat. 1095), did not have the effect of extending the right of homestead entry to lands included within the limits of an incorporated city or town, although it repealed Rev. St. U. S. § 2258, which expressly excepted such lands from those subject to pre-emption, and also by reference in the homestead law from homestead entry, since such lands are not “unappropriated,” within the meaning of Rev. St. TT. S. § 2289, as amended by said act, which authorizes homestead entries only on “unappropriated public lands.”</p> <p>4. Same.</p> <p>Rev. St. U. S. § 2258, by expressly exempting from pre-emption entry lands included within the limits of a city or town, clearly authorized states and territories to incorporate public lands within the limits of a city or town; and the territorial legislature of Dakota, by Act of March 7, 1885, while said section was in force, incorporated within the limits of the city of Chamberlain certain lands then included in the Great Sioux Indian reservation, which act was continued in force by the state. Act Cong. March 2, 1889 (25 Stat. 888), extinguished the Indian title to a portion of ■the reservation, including such lands, and provided that on proclamation, of the president it should be subject to disposition under the homestead law, and “under the law relating to town sites.” Held, that the effect of the action of the territory was to appropriate the lands incorporated into the city to city or town-site purposes, and that on their restoration to the public domain they did not become subject to homestead entry as “unappropriated public lands.”</p>

<p>1. Master and Servant — Defective Appliances — Questions for Jury.</p> <p>A railroad coal shed was equipped with boxes or chutes holding about five tons each, which, on. being tripped, slid out over a tender, when the pulling of a pin permitted an apron to drop, and the coal was discharged into the tender. On one occasion one of the chutes failed to slide out on being tripped, and plaintiff, an employs, was directed by his foreman to stand on the tender and pull on it. It suddenly slid out, knocking plaintiff into the tender, and the apron fell, dumping the entire contents upon him. and causing his injury. There was evidence tending to show that 10 days after the accident only 1 of the 12 chutes in the shed would operate properly, and as they were designed to operate, and evidence was also introduced by defendant to the effect that they were inspected daily. Held, that such evidence warranted the submission to the jury of the questions whether the chute was in proper repair, and, if not, whether defendant knew or should have known its defective condition.</p> <p>2. Same — Assumed Risk.</p> <p>In sueh case plaintiff must necessarily have known that from some cause the chute did not slide properly, and must be held to have assumed the risk therefrom; but that fact would not warrant the court in holding, as a matter of law, that he also assumed the risk from the defective fastening of the apron, by reason of which the coal was prematurely discharged upon him, or preclude a recovery for injuries caused thereby, and in the absence of evidence clearly showing that he had, or should have had, knowledge of such defect, that question was one for the jury.</p> <p>8. Release — Validity—Procuring by Deceit.</p> <p>Plaintiff received quite severe injuries while in the employ of the defendant railroad company. A few days afterwards he signed a release of all claims for damages on account of such injury, for the stated consideration of “medical attention.” He testified that he was sent for by the foreman and asked to sign the paper, and on his stating that he could not read or write English the foreman read the release to him, and told him the company would pay his doctor hill and give him a light job; that he supposed that to be the purport of the paper, and did not understand it i.o be a release of his claim for damages, or he would not have signed it. Meld that, under the circumstances, plaintiff had the right to rely upon the foreman for an explanation of the meaning and effect of the paper, and if he was misled as to its effect by the statements of the foreman, without negligence on his part, — which was a question for the jury, — -it would not be binding upon him.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

This is a suit for the wrongful seizure and conversion of certain chattels under a writ of attachment. William if. Hynes, his wife, Philomana Hynes, and Clara Smith, as executrix of Samuel H. Smith, deceased, the defendants in error, were the plaintiffs in the lower court, while the plaintiffs in error, S. S. Shapard, C. G. Moore, and F. W. Phelps (the latter being the officer by whom the attachment writ was levied), were the defendants.

S. S. Sanger, Jr., the plaintiff in error, did not attain his majority until the 19th day of August, 1895. During his infancy he engaged, as a retail dealer, in the mercantile business in the Indian Territory, and purchased goods on a credit from Hibbard Bros., the defendants in error, and other wholesale merchants.

E. L. Dubois and. Joseph Williams made a contract with Salt Lake City on March 10, 1891, to furnish the materials and perform .the necessary work, except that required to make the excavations, to construct a covered conduit for the purpose of leading the waters of Parley’s creek from a point in Parley’s canon to Salt Lake City, — a distance of about six miles.

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

<p>1. State Court — Injunction Inoperative on Suit in Federal Court.</p> <p>A state court may not, by injunction rostra ining tbe collection of taxes, prevent a federal court from proceeding to judgment. in an action of which it has jurisdiction, nor from enforcing its judgment by mandamus to compel the levy and collection of taxes to pay it.</p> <p>8. Same — Construction of State Constitution and Statutes — When Obli-satory — Rule.</p> <p>The national courts uniformly follow the construction of the constitution and statutes of a state given by its highest judicial tribunal in all cases that involve no question of general or commercial law and no question of right under the constitution and laws of the nation.</p> <p>3. Same — Question of General Jurisprudence.</p> <p>The question whether or not the illegal action of a municipal or quasi municipal body, in the exercise of a power granted to it, constitutes a defense to bonds issued pursuant to such action, and held by a bona fide purchaser, is a question of general jurisprudence, which the national courts must determine for themselves.</p> <p>4. Same — Exception to Rule — Construction by State Courts After Rights Accrue not Controlling.</p> <p>It is a well-settled exception to the general rule that decisions of state courts which affect the validity of contracts between citizens of different states, which were made, or under which rights were acquired, before such decisions were rendered, are not obligatory upon the courts of the United States in cases involving those rights. ■</p> <p>5. Precinct in Nebraska not a Corporation.</p> <p>A precinct in Nebraska is not a municipal or quasi municipal corporation, and cannot contract, sue, or be sued.</p> <p>6. Precinct Bonds in Nebraska are the Bonds of the County which Issues Them.</p> <p>Bonds issued by a board of county commissioners of a county in Nebraska upon a favorable vote of the electors of a precinct, under sections 3518, 3519, and 3520 of the Compiled Statutes of Nebraska of 1899, are the bonds of the county whose board issues them.</p> <p>7. Municipal Bonds — Recitals—Estoppel.</p> <p>The recitals of the officers of a municipal or quasi municipal corporation, who are invested with the power to perform a precedent condition to the issue of negotiable bonds, or with authority to determine when that condition has been performed, to the effect that they have found that all the requirements of law necessary to authorize the issue of the bonds have been fully complied with, preclude inquiry, in an action on the bonds by an innocent purchaser, as to whether or not the precedent condition was actually performed before the bonds were issued.1</p> <p>8. Same.</p> <p>A board of county commissioners which had power to divide its county into precincts, and to subdivide the precincts and change the lines thereof (Comp. St. Neb. 1899, § 2141), which in the exercise of this power defines the boundaries of a precinct, and fails to make them correspond with the wards of a city of the second class, which is located upon a portion thereof (section 1520), and upon a favorable vote of the electors of that precinct issues bonds, and certifies therein that it has found that all the requirements of law necessary to authorize the issue of the bonds have been fully complied with, is estopped, as against an innocent purchaser, from denying that the precedent condition requiring the establishment of a legal precinct was fulfilled.</p> <p>9. Same — Recitals—Estoppel.</p> <p>A recital in municipal bonds, authorized to be issued under a statute, that they are issued for the purpose stated in the law, and that all the requirements of the law have been complied with, estops the corporation from defending an action on them by an innocent purchaser on the ground that the proposition submitted to the electors upon which the bonds were issued stated that they were to be issued for an unlawful purpose, and did not correspond with the conditions of the bond. Such a recital relieves the innocent purchaser of all inquiry, notice, or knowledge of the proposition submitted to, and the vote of, the electors, and estops the county from denying that a legal proposition was submitted, and a favorable vote had.</p> <p>10. Same — Use of Proceeds.</p> <p>A recital in municipal bonds authorized under a statute, that they were issued for the purpose therein stated, and that all the requirements of the statute have been complied with, estops the corporation from defending an action upon them by an innocent purchaser, on the ground that their proceeds were applied to an unlawful purpose.</p> <p>11. Political Subdivision and Ofmoers de Facto.</p> <p>When a quasi municipal corporation and its officers have created, with ample statutory power (Comp. St. Neb. 1899, § 2111), but not in the way prescribed by the statute (section 1520), a political subdivision of the quasi municipality recognized by the organic law, and that subdivision and its inhabitants have assumed to act as such, and the quasi municipal body and its officers have assumed to act on behalf of such subdivision, and the existence of the subdivision and the acts of these officers have been recognized by the officers and departments of a state and by private citizens, without objection, for a considerable period of time, until the rights of private citizens have become vested and fixed in reliance upon the existence of the subdivision and the validity of the acts of the quasi municipality and its officers, the district comprised in the subdivision becomes a political subdivision de facto, and its acts, and the acts of the officers de facto, who represented it, have all the force and validity of acts of a subdivision and of officers de jure. The quasi municipal corporation and its officers, the political subdivision and its citizens, are alike estopped to question, in litigation over the rights of private parties, the existence of the subdivision or the validity of the acts of its officers de facto.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to tbe Circuit Court of the United States for the Northern District of Iowa:</p> <p>This was an action upon a policy of insurance of !?3,000 on the life of Edward M. Travis for the benefit of his wife, Olive M. Travis, the plaintiff in error, and the defense was that no conlrad of insurance was ever consummated. There was a trial to a jury, and at the close of the evidence the court instructed them to return a verdict for the. defendant upon this state of facts: The Nederland Life Insurance Company, Limited, the defendant in error, was a foreign corporation engaged in the business of life insurance. L. I. Dubourcq, whose office was in New York City, was the president of its United States branch, and the only person in this country authorised to accept applications for insurance or to issue policies on its account. Edward Ferguson, whose office was in the city of Chicago, was the manager of its Western department. Leisander & Love were its general agents under Ferguson for the state of Iowa, with authority to procure applications for policies of insurance and to discharge the duties which usually devolve upon managers of agencies, and .Tames II. B. Woodroffe was a soliciting agent under them. On November 11, 389(5, Woodroffe obtained from Edward M. Travis his written application to the defendant for a policy of insurance of $3,000 on his life for tlu> benefit of his wife, the plaintiff, and his promissory notes for the amount of the first annual premium. Woodroffe mailed this application and these notes to Leisander & Love at Des Moines, Iowa, who forwarded the application by mail to Edward Ferguson at Chicago, used the notes as collateral to a loan which they obtained for themselves from a bank, and reported that the premium was paid. Ferguson mailed the application to Dubourcq in New York for iiis acceptance ^or rejection. Travis was a medical examiner for the defendant in the town where he lived, and on November 12, 1899, the day after liis application, he wrote to Leisander & Love that they should not send his policy to him if the company was to have another medical examiner, one McGrath, in his town, and its agent was to turn over examinations 1o the latter, as lie had been doing. McGrath was at this time and continued throughout to be a medical examiner of the. defendant in the town where Travis resided. On November 38, 3896, Travis wrote Ferguson at Chicago, and directed him wot to send his policy if the company was to have two medical examiners in his town. This letter was referred by Ferguson to Leisander & Love, who, on November 20, 1896, wrote Travis to tiie effect that the company still had, and would continue to have, two medical examiners in his town, and that it would divide its business equally between them. This correspondence was not communicated to Mr. Dubourcq prior to November 27, 189(5, and on that day, in ignorance of: the facts which it discloses, lie approved the original application, and issued a policy in accordance with its terms, which was sent to Travis, and was received by him on December 3, 1890. On December 8, 1899, he returned tills policy to Leisander & Love in a letter in which he stated that the reason for his action was that the company had two medical examiners in his-town. There was further correspondence, and subsequent conversations, but the contractual relations of Travis and the company remained in the same condition in which they were left on December 8, 189(5, until he was drowned, on March 9, 1897. Counsel for plaintiff in error claim that upon this state of facts a contract was established, and the plaintiff should have recovered.</p>

This writ of error assails a judgment In garnishment which was the result: of the following proceedings: On April 25, 1897, F. G. Logan, the plaintiff in error, commenced an action in the court below against A.' G. Goodwin, W. L. Chamberlin, I. Goodwin, and Grace C. Chamberlin, and filed an undertaking in garnishment, which recited that an order of garnishment had been issued, and which was conditioned to pay to the defendants, or any of them, any damages which they might…

<p>In Error to the Circuit Court of tbe United States for the District of Montana.</p> <p>The plaintiff in error seeks to review a judgment which was rendered against him npon a demurrer to his complaint. In the complaint he alleged, in substance, the following facts: That on November 24, 1897, the plaintiff And the defendant entered into a contract, as follows: “That the party of the first part [the plaintiff] agrees to furnish to the party of the second part [the defendant] all mining- limbers required and used by Hie party of Hie second part on the Broadwater Mines lease at Xeiliart, county of Cascade', and state of Montana, during- the year A. I). eighteen hundred and ninety-eight (1808). All mining- timbers to be in the following dimensions: 8" to In", 10" to 12", 12" to 14", at the small end, and sixteen (Ui) feet long-. All lagging or cribbing to be from 4½" to 5½" at small end, and sixteen (10) feet long. The party of the first part agrees to deliver any or all of the above-mentioned mining timbers to tunnels Xos. 2, 3, and 8, as designated on the maps of the party of the first part, and in the sizes and quantities as required by the party of the second part. The party of the first part agrees to deliver to the party of the second part all the lagging or cribbing, the dimensions hereinbefore mentioned, at tunnels Xos. 2, 3, and 8, and said lagging or cribbing to be delivered as requested at the tunnels mentioned, and in quantities designated by the parry of the second part. The party of the second part agrees to pay to the party of the first part for all the mining-timbers from 8" to 10", 10" to 12", 12" to 14", at the small-end, and sixteen (16) feet long, six cents per linear foot,, about six hundred. For all .lagging- or cribbing received by the party of the second part, as follows:</p> <p>Tunnel No. 2, price per piece, thirty (30) cents ]</p> <p>Tunnel No. 3, pries; per piece, twenty-live cents ¡- about 15,000.</p> <p>Tunnel No. 8, price per piece, twenty (20) cents j</p> <p>—The party of the first part agrees to take Ills; count and measurements of the party of the second part, or their agent.” That immediately after the execution of the contract the plaintiff employed a large number of men and teams to carry out the contract on Ms part, and proceeded to cut and haul six hundred mining timbers of the size and dimensions named in the contract, and fifteen thousand pieces of cribbing and lagging, as therein provided, and at great expense transported the same to Xeiharr, and there had the same ready for delivery fo the defendant as provided in the contract, and that he fully performed said contract upon ills part, but that the defendant received from the plaintiff only fifteen of the mining timbers, and two thousand of the pieces of lagging and cribbing, and refused to receive the remainder, to the plaintiff’s damage in four thousand dollars.</p>

<p>Appeal — Kmvikw—Instructions.</p> <p>Where the charge of the court, as a whole, fairly presented to the jury rhe law applicable to tire evidence, isolated sentences will not be considered by the appellate court, apart from their context, for the purpose of determining assignments of error thereon.</p>

Division of the Northern District of Illinois. The action in the Circuit Court was in assumpsit by the plaintiffs in error ■against the defendant in error, to recover damages for alleged breaches by the defendant in error of three certain agreements hereinafter referred to.

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

<p>Costs — Taxation—Construction of Rules.</p> <p>Under Cir. Ct. Rules 17 and IS, which were designed to conform the practice in regard to the taxation of costs, as nearly as practicable, to that of the state courts under the statute, a bill of costs filed by the successful party within the required time, properly itemized and verified, is prima facie evidence that the items thereof were necessarily incurred and are properly taxable, unless an item should appear otherwise on its face; and the burden of overcoming such prima facie proof rests on the adverse party filing objections, the party filing the bill being required to furnish further proof only in rebuttal. In case the clerk should determine that an item did not appear on its face to be properly taxable, he may receive evidence in support of the same.</p>

<p>In. Bankruptcy.</p>

In Bankruptcy. On petition in involuntary bankruptcy. In the matter of the above petition it is agreed, for the purposes of this hearing, between the petitioning creditor and the debtors, that an assignment for the benefit of their creditors was made by Miner, Beal & Co., as set forth in their answer to said petition, which assignment was recorded in the office of the clerk of the city of Boston on the 24th day of February, 1900, and that their property was transferred…

<p>1. Bankruptcy — Debts Released by Discharge — Defalcation While Acting in Fiduciary Capacity.</p> <p>In the provision of Bankr. Act 1898, § 17, subd. 4, which exempts from the debts released by a discharge in bankruptcy debts created by the defalcation of the bankrupt “while acting as an officer or in any fiduciary capacity,” the words “fiduciary capacity” embrace only technical trusts, and not those which the law implies from the contract, nor relations merely of general trust and confidence;' and one who is intrusted with money of another to be loaned on approved security, and authorized to receive payments of the interest or principal of such loans, and remit the same to the lender, does not receive such payments in a fiduciary capae-. ity, within the meaning of the statute, but merely as an agent, and a claim against him for money so collected, and not remitted, is not within the exemption, but is one from which he is released by a discharge in bankruptcy.</p> <p>3. Same.</p> <p>An agent intrusted with money by his principals, to be loaned on trust deeds or mortgages, who takes a trust deed securing such a loan to himself as trustee, becomes technically a trustee with respect to the property or its proceeds which comes into his hands through a foreclosure of the security, and his failure to pay over such proceeds to the beneficiary, in compliance with the express requirement of the deed, results in a debt created by his defalcation while acting in a “fiduciary capacity,” within Bankr. Act 1898, § 17, subd. 4, from which he is not released by a discharge.</p> <p>3. Same — Debt Created by Fraud.</p> <p>An agent intrusted with money of his principals to be loaned on real-estate security made such a loan, taking as security a trust deed to his partner as trustee. This deed he afterwards caused to be foreclosed, and bid in the property in his own name, but without paying therefor, and received a deed from the trustee. He made no report of the transaction to his principals, but subsequently conveyed the property away, and retained the proceeds. Held, that the transaction was outside of, and in violation of, his agency, and his liability to his principals resulting therefrom was a debt created by fraud, within the meaning of Bankr. Act 1898, § 17, subd. 4, from which he was not released by a discharge in bankruptcy.</p> <p>4. Limitations — Fraudulent Concealment — Missouri Statute.</p> <p>Under Rev. St. Mo. 1899, § 4290, which provides that where the commencement of an action is prevented by any improper act of the defendant, limitation shall run only from the time such prevention ceases, limitation does not begin to run against an action to recover from an agent for converting to his own use money and property of his principals, who resided in a distant state, where he fraudulently represented to them in his letters that he had not received such money or property until fchov discovered the fraud.</p>

<p>In Bankruptcy.</p>

<p>1, Attorney at Law — Presumption of Authority to Act in Court.</p> <p>An attorney at law, who is admitted to practice in a court, is presumed to be duly authorized to appear and act for any party whom he claims to represent in that court, and, in the absence of countervailing evidence or statutory prohibition, that presumption is conclusive.</p> <p>2. Same — Authority to Represent Creditor under Bankruptcy Law.</p> <p>The bankruptcy law of 1898 (subdivision 9, § 1) and general order in bankruptcy No. 4 provide, and form No. 20 in bankruptcy contemplates, that an attorney at law admitted to practice in the United States district court will be presumed to be duly authorized to appear and act for any creditor whom he assumes to represent in bankruptcy proceedings, and in his behalf to oppose the discharge of the bankrupt, without any written power of attorney or authority so to do. The general presumption of law that he is authorized to appear and to do the acts on behalf of his client which he assumes to perform is recognized by the bankruptcy law and the general order, and, in the absence of countervailing evidence, it is conclusive.</p> <p>(Syllabus by the Court.)</p>

Customs appeal from decision of board of general appraisers affirming an assessment of duty on certain imported law books.

<p>Customs Duties — Classification-— Sardines.</p> <p>Small lish packed in oil in quarter tins of the sifie and style designated in paragraph 208 of the tariff act of 1894 (28 Stat. 523), and so labeled as to he known to the trade generally as “sardines in oil,” are dutiable as such under that paragraph, and not under paragraph 211 as fish in cans, not specially provided for, although they are not in fact sardines, hut sprats, and are known among importers as “sprats in oil.”</p>

<p>In Error to the District Court of the United States for the District of Idaho.</p> <p>The plaintiffs in error seek to review the judgment of the district court of the United States for the district of Idaho in a case in which they were convicted of a conspiracy to commit an offense against the United States. The facts on which the indictment was based are tire following: On April 2!>, 1899, the Northern Pacific Kailway train was boarded by a large number of armed men at different points between the towns of Bnrke and Wallace. When the train reached Wallace some of these men compelled the engineer to run his train over the track of the Oregon Kailroad & Navigation Company to Wardner Junction, a place about 12 miles west of Wallace. They then proceeded to the mill of the Bunker Hill & Sullivan Mining & Concentrating Company, near Wardner Junction, and destroyed it by the use of dynamite, after which they dispersed, and returned on the train towards Wallace and the points from which they had come. There were three counts to the indictment, but on the trial, at the conclusion of the evidence, the second and third counts were ordered dismissed. The indictment in the first count charged that the plaintiff's in error did “unlawfully, wickedly, and maliciously confederate and conspire together to commit an offense against the United States; that is to say, to unlawfully, willfully, maliciously, and knowingly delay, prevent, obstruct, and retard the movement a,nd passage of a certain railway car and train over the lines and tracks of the Northern Pacific Railway Company, by the said Northern Pacific Kailway Company, the said Northern Pacific Railway Company then and there being engaged in the business of a common carrier of the. mails of the United States, which said railway car and train were then and there carrying and transporting the mails of the Uidted States.” The indictment then proceeded to charge the commission of an overt act in pursuance of said conspiracy. The iffainlifi's in error demurred to the indictment, and, after verdict thereon, moved in arrest of judgment, upon the ground that the facts stated in said count of the indictment do not constitute a public offense.</p>

<p>1. Unfair Competition — Similarity of Name..</p> <p>Complainant and its predecessor in interest had for many years manufactured and sold a soap under the name of “Old Country Soap,” which was used as a trade-mark. Defendant commenced the manufacture and sale of a soap under the name of “Our Country Soap.” The boxes in which defendant shipped its soap and the wrappers around the bars were dissimilar from complainants in the printed matter thereon and in the color of the lettering, and each, as well as the bars themselves, contained defendant’s name and address, which did not resemble complainant’s. The bars of each party, while similar in color and general appearance to those of the other, had stamped upon one side the name of the soap, andi on the other the name of the maker. Meld, that the mere similarity of name, in view of the other facts, was not sufficient to constitute unfair competition, it not appearing to be such as to deceive a buyer of ordinary intelligence and observation into buying defendant’s soap for that of complainant 1</p> <p>2. Trade-Names — Protection in Equity — Use for Purpose of Deceit.</p> <p>A complainant using the name of “Old Country Soap” on a soap manufactured in the United States for the purpose of inducing persons who came to this country from Europe to believe such soap was made in the “old country,” is not entitled to protection in the usé of such name as a trade-name by a court of equity.</p>

<p>Patents — Appeal from Order Granting Preliminary Injunction — Effect of Expiration of Patent.</p> <p>A preliminary injunction against the infringement of a patent terminates with the expiration of the patent by limitation, and an appeal from the order granting such injunction, pending and undetermined at the time of such expiration, will be dismissed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>The appeal in this case is taken from a final order and decree dismissing the suit as to one of the parties complainant. The Excelsior Wooden-Pipe Company, claiming to be the licensee of patent rights granted to it by Charles P. Allen, the inventor and patentee of an improvement relating to wooden pipes, joined the said Charles P. Allen as a co-complainant in a suit against the Pacific Construction Company, claiming that the latter had infringed the rights so conveyed to the licensee. The bill alleged that the said Charles P. Allen, by an instrument in writing of date December 20, 1892, granted unto the Excelsior Redwood Company, a corporation, its successors and assigns, the exclusive right, license, and privilege within Northern California and other states and territories of manufacturing and selling wooden pipe under and in accordance with the letters patent to the full end of the term thereof, and that thereafter the Excelsior Redwood Company, with the written consent of said patentee, transferred to the appellant the said exclusive license. Charles P. Allen moved to dismiss the suit as to him for the reason that it was brought by the Excelsior Wooden-Pipe Company, and that he was made a party complainant without his knowledge or consent, and that the license by virtue of which the Excelsior Wooden-Pipe Company manufactured and sold pipe under said patent had been revoked prior to the commencement of the suit. The motion was supported by the affidavit of said Allen, in which he admitted the execution of the license, but deposed that the license by its terms provided that upon the breach of certain conditions therein contained it should be at once revoked; and ihat the said Excelsior Wooden-Pipe Company, ever since the granting of the said license, had repeatedly and continuously violated the said conditions; and that the contract “is now, and has been for a long time, revoked, and null and void.” There was filed, also, the affidavit of one of the officers of the Pacific Construction Company, the defendant in ihe suit, stating that the said defendant Allen had, about a year prior to the suit, granted to the defendant a license to manufacture wooden pipe, and had stated to it that the license granted lo the complainant was null and void, and bad ceased to exist. Affiant alleged that, in order to determine the validity of the license which was claimed by tbe complainant, it was necessary that the said Allen be made a party defendant in said suit, and prayed that he he made such defendant. Opposing these affidavits was the affidavit of the. manager of the Excelsior Wooden-Pipe Company denying that the said corporation had violated the conditions of the license which had been granted to it, and denying that the license was revoked. Upon these affidavits the court sustained the mo-’ tion to dismiss as to the complainant Allen.</p>

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

On motion to dismiss appeal. It appears from the record that a libel was filed by the appellee against the propeller New York to recover the damages sustained by the steamer Oonemaugh and her cargo by reason of a collision with the New York.

<p>1. Admiralty — Appeals—Questions Revtewable.</p> <p>Under section 11 of Act March 3, 1891, creating the circuit courts of appeals (26 Stat. 826, c. 517), which provides that “all provisions of law now in force regulating the methods and system of review through appeals or writs of error shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals,” an appeal in an admiralty cause, which by such act is taken to that court instead of to the circuit court, as formerly, is to be heard and determined under substantially the same rules and limitations that regulated the determination of admiralty appeals in the circuit courts prior to the passage of that act; and, under the settled rule, such an appeal vacates entirely the decree of the district court, and brings the cause up for trial de novo upon every issue raised by the pleadings, those determined by the district court in favor of the appellant as well as those determined against him.</p> <p>2. Marine Insurance — Abandonment of Vessel — Liability of Underwriters for Services in Saving Vessel.</p> <p>An abandonment of a vessel to the insurers after her loss relates back to the time of the disaster, and the title becomes vested in the underwriters as of that date, and they are responsible for reasonable expenses incurred by the master after that date in an attempt to save t lie vessel, especially where they were represented at the place of the disaster by an agent during a large part of the time ihe work is being done, and approved the action of the master.</p> <p>3. Same — Extent of Inability.</p> <p>In such case the underwriters become the owners by the abandonment, as of the date of the disaster, of the entire vessel, and not merely of the insured interest, each being a part owner in the proportion that Ids insurance bore to the entire insurance; and each is liable, under Act dune 20, 1884 (23 Stat. 53, 57, c. 121, § 18), for the same proportion of the entire indebtedness incurred by the master for work done in the attempt to rescue the vessel.</p>

<p>Maritime Law — Injury of Se amar — Liability of Shipo wiser.</p> <p>A corporation which is the owner of a ship, and which has exercised due care in making her seaworthy for a voyage, in her equipment and supplies, and the selection of her officers and crew, cannot be held responsible for the proper performance of the details of navigation during the voyage, and is not liable for an injury received by a member of the crew through the negligence of an officer or another member in leaving a hatchway open, the navigation of the ship during the voyage being a common undertaking, for which all the ship’s company in their several stations are employed, and in respect of which they are regarded by the maritime law, as well as the common law, as fellow servants.</p>

Action at lave by a citizen of the state of Washington against two defendants; one being a corporation of the state of West Virginia, and the other an alien corporation. Heard on motion to remand.

<p>Trusts — Expenses of Administration — Suit to Determine Right to Fund.</p> <p>A trustee is required to protect diligently and faithfully the interests of the beneficiaries, and all of them; and where he acts with prudence, discretion, and economy he is entitled to be reimbursed for the costs and expenses incurred in the administration of-the trust. He is also entitled to the judgment of the court upon the demands of rival claimants to the fund, and, where he has invoked such judgment before paying over the fund, neither he nor the unsuccessful claimant can be required to pay the, costs and expenses of the proceeding unless they have been guilty of Vexatious conduct or bad faith, but such costs and expenses are a charge upon the general fund.</p>

<p>Corporations — Accounting—Parties.</p> <p>The president of a corporation is a proper party to a'suit against such corporation and others to require an accounting for property of a third corporation, which property it is alleged in the hill was delivered to the defendant corporation under an agreement made in its behalf hy the president, and was, through fraud and collusion between the defendants, converted to their own use, in violation of such agreement.</p>

<p>Injunctions — Motion to Dissolve — Interlocutory Order Made by Judge of Equal Authority.</p> <p>A circuit judge will not grant a motion to dissolve an interlocutory injunction granted by a district judge sitting in a circuit court, where it can be made before the same judge who made the order.</p>

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

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

In 1896 the Denison & Northern Railway Company, the appellant, was a corporation authorized to construct railroads in the Indian Territory.

Under chapter 118 of the Laws of 1892, amended by chapter 171 of the Laws of 1893, certain bonds' of the town of Gravesend were claimed to have been issued, amounting to $148,000, to Ooffin & Stanton, a firm of bankers or bond dealers, $24,000 of which were pledged to the complainant by Coffin & Stanton as security for a loan. The validity of these bonds being disputed, the complainant brought this action in equity, substantially to determine the validity of the bonds.

<p>Appeal from tlie Circuit Court of the United States for the Central Division of the District of Idaho.</p> <p>The appellee brought suit in equity in the court below on June 2, 1897, to quiet the title to certain mining property commonly known as the “Gold Hill Mines,” situated in Boise county, Idaho. The appellant answered the bill of complaint, and filed a cross bill, praying (hat a decree in a partition suit entered in the district court of the Second judicial district in the state of Idaho, on the 10th (lay of November, L895, and the sale of the property pursuant to such decree to the grantor of the appellee, on the 2Cth day of June, 1896, be declared wholly void and of no effect. The circuit court heard the case upon the merits, and dismissed the action. It appears that on the 22d day of December, .1887, D. E. Couglitmour, William A. Coughanour, and Thomas Mootry, Jr., were tenants in common of the property the title of which is in controversy in this action. Thomas Mootry then brought an action in the district court of the Second judicial district, in the county of Boise, in what was at that time the territory of Idaho. The object of the action was a partition of the property, and such proceedings were thereupon had that on the 5th day of May, 1890, a decree was entered in (he district court providing for a sale of the property by a referee for a' sum not less than 8200,000. The decree also provided that a deed should be executed and delivered to the purchaser, and, after tlie payment of costs and expenses, the proceeds should be distributed to the several owners. The limitation of $200,000 on the selling price of the property was qualified by a provision of the decree that it should not be sold for a less sum without the consent of all the parties to the action, and that, if a sale should not be made before the return of the order of sale, the direction and limitation of the decree should apply to any side made under any subsequent order of sale issued in the action, unless waived by all the parties, or modified by the court upon notice to all the parties to tiie action. The territory of Idaho was admitted into the Union as a state on July 3, 1S90. By the act of congress •of that date and the constitution of the state, all cases pending in the territorial courts at the time of the admission of Idaho into the Union as a state were transferred to the corresponding state courts, to be there proceeded with in due course of law. At the time the state courts succeeded to the jurisdiction of the territorial courts no sale had been made of the property mentioned in the decree just referred to, and nothing further appears to have been done in the matter until August 14, 1894, when Thomas Mootry began a new action in partition in the Third judicial district of the state of Idaho for the'county of Boise against his partners, D. E. and W. A. Coughanour. To the complaint in this action the defendants answered, and set up the decree of May 5, 1890, as a judgment in bar to the action. Thereupon the plaintiff filed an amended complaint praying for a partition of the property and for a modification of the decree of May 5, 1890. On July 19, 1S95, a decree was entered upon stipulation, and by agreement of counsel in open court, and by consent of the parties to the action, providing that the property should be sold at not less than $75,000 instead of $200,000, as provided in the original decree, and providing, also, for the appointment of a new receiver or commissioner to make the sale and carry the judgment or decree into effect. On November 16, 1895, the court, on motion of the plaintiff, modified the order of July 19, 1895, so as to inwide that the commissioner and receiver should proceed to sell the property as provided by law without any limitations as to price, it appearing that the property could not be sold for the price named in the order of July 19, 1895. By this decree the sale was fixed for January 11, 1896. On December 1, 1895, the plaintiff, Thomas Mootry, died, leaving his sisters Mary Mootry and Margaret Mootry sole heirs, and on the 17th day of June, 1896, Margaret Mootry died intestate, leaving Mary Mootry her heir at law. On December 27, 1895, the court made an order modifying the decree of November 16, 1895, by changing the date of sale to February 20, 1896, and providing for the publication of the notice of sale. On January 8, 1886, in accordance with the stipulation of the parties, the sale was ordered postponed to June 20. 1896. The stipulation provided, further, for the sale of certain property belonging to the Gold Hill mine, and the application of the proceeds to the payment of the debts of the Gold Hill Mining Company. On June 16, 1896, K. R. Grayson, the appellee herein, telegraphed from San Francisco to th.e judge of the court in which the suit was pending, as follows: “Has sale of Golden Mine been postponed? If not, I will have an agent on 20th to make bid. Answer immediately, giving full particulars.” The, answer to this telegram does not appear in the record, but on the following day Grayson sent a second dispatch, as follows: “Your message received too late to leave to-day. I will leave to-morrow for Idaho. Postpone sale, if possible, until June 24th. Answer immediately.” On June 18, 1896, the court, on motion of counsel for defendants, made an order reciting that “it appearing to the satisfaction of the court, from two telegrams offered in support of said motion, that it is to the best interests of the parties to this action that said sale be postponed, ordered that the sale heretofore ordered to be made by the receiver in this action on the 20th instant be, and the same is hereby, continued and postponed until the 24th instant, at one o’clock p. m.” A notice of the change of the date of sale was ordered published in the Idaho World. In accordance with the terms of the decree as modified and the notice of sale, the receiver offered the property for sale at the time mentioned. The highest bid of the appellee was $10,000. D. E. Ooughanour, one of the defendants in the suit, bid $15,000, whereupon the property was declared sold io the latter. The decree for sale, and the receiver’s notice of the sale, required that the property should bo sold “to the highest and best bidder for cash, lawful money of the United States.” The purchaser was not able to pay cash. He testifies that he told the judge that he wanted 48 hours in which to go down to Boise and get the money and pay for it, and that Hawley, his attorney, gave him 15 minutes in which to raise the money. Judge Richards, who was the presiding judge of the district court in which the action was pending, testifies: “The court took a recess pending the time the sale was being made, and when the property was knocked down 1 walked back into the court room. Mr. Coughanour immediately came in, and staled that he must have thirty days’ time in which to make the payment on his bid. I told him I could not consider any application made in that way; that the receiver was ordered to sell the property to the highest bidder for cash. I stated, further, that I had no doubt that, if he would make such a payment as would show his good faith, a proper order could be made for an extension of time on the balance. He said he did not have a dollar. I informed him then that I could do nothing further than to require the receiver to comply with the order, and sell the property, but before anything was done I would send for Ms counsel, Mr. Hawley, so lie could advise Mr. Coughanour as to wliat his rights were. This ended my conversation with Mr. Coughanour. * ⅞ * I sent the sheriff for Mr. Hawley, who was his counsel of record. In a few minutes he came in, and I explained the matter to him as I have previously stated in my conversation with Mr. Coughanour, and informed him that unless he had some good reason to show why the order of sale should not be complied with I would direct the receiver to obey that order at once. Mr. Hawley said that he thought the court was perfectly right, and he had notMng to ask, and thereupon I directed the receiver to comply with the order of sale.” The receiver, in his report of the sale to the court, referring to this transaction, says: “Upon demanding the money for the sale, Mr. Coughanour said that he did not have the money, but would try to raise it in a few days.” No further action appears to have been taken by Coughanour to complete the purchase of the property, and accordingly, on the same day, and shortly after this attempted sale, Iho property was again offered for sale, and sold for the sum of 84,500 to A. H. Boomer, who was the only bidder. On the same day the receiver conveyed the property to Boomer, and on the next day Boomer conveyed the property to Grayson, the appellee. The purchase price of the property was paid to the receiver by R. R. Grayson, the appellee, who thereafter, on the ¾)⅛ day of December. 1896, made application to the United States government for a United States patent for the several mining claims included in said property, and on July 10, 1897, patents were issued to him accordingly. For the purpose of quieting the title thus acquired by the appellee, the present action was commenced.</p>

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

Proceeding by a telegraph company to condemn a right of way for its line over and along the right of way of defendant railroad company.

<p>Corvoratiom — Stockholder's Liability — Enforcement under Kansas Statutes.</p> <p>'Laws Kan. 3898, c. 10, which provides for the enforcement of the constitutional liability of stockholders in a corporation by a receiver for the benefit of the corporation and all the creditors alike, does not supersede the provisions of the prior statute, which gave a creditor the right to <tn force the liability of any particular stockholder for his own individual benefit, as to contracts made while such statute was in force, since the right thereby given became a part of the contract, which would be materially impaired by the substitution of the restricted remedy given by the subsequent act.</p>

<p>1. Libel — Telegraph Message — -Liability for Transmission.</p> <p>Where a message presented to the receiving clerk of a telegraph company for transmission is in language such that a person of ordinary intelligence, knowing nothing of the parties or circumstances, would not necessarily conclude that its purpose was defamation, it is his duty to send it, and for the performance of such duty the company incurs no liability.</p> <p>2. Same.</p> <p>Defendant received in New York for transmission to' plaintiff, in Minneapolis, a message signed by the sender, and stating that a person named had stated in the presence of the sender that plaintiff had been “bought up” by another person named, in a political campaign. Defendant’s cleric who received and forwarded the message had no knowledge of any of the parties, or the matters referred to. Held, that there was nothing in the language of the message from which the clerk could reasonably have inferred that its purpose wus to defame the plaintiff, to whom it was addressed, or to warrant a recovery against the defendant because of its transmission.</p>

<p>1. Municipal Corporations — Contracts—Construction by Parties.</p> <p>By a contract between a water company and a city, the company was required to sluice the gutters in the city without charge. The city subsequently constructed on some streets what were termed “sanitary sewers,” which to some extent, at least, served the purpose of gutters; and the company, on its request, flushed such sewers without charge for a period of nine years, and until a change in its management. Úeld, that such action constituted a practical construction of the contract by the parties as including such sewers -under the term “gutters,” and precluded any recovery by the company for flushing the same.</p> <p>2. Same — Requisites op Contract to Bind City.</p> <p>A water company cannot recover against a city on a claim for flushing sewers, amounting to a considerable sum, in the absence of some contract entered into on behalf of the city, by somebody authorized to bind it, to pay for such service.</p>

<p>Indemnity — Discharge of Indemnitors — Right to Defend Action against Indemnitee.</p> <p>A notice to an indemnitor to appear and defend an action on which his liability depends gives him the right to use all means of defense which would be open to him had he been made a party, including the right to prosecute an appeal or writ of error; and where indemnitors served with such notice employed counsel and contested the case, and after an adverse judgment sued out a writ of error and prepared the case for hearing in the appellate court, the action of the defendant in paying the judgment on the day set for such hearing, without the knowledge or consent of the indemnitors, not only rendered it ineffective as an adjudication against them, but, under the circumstances, which showed bad faith on the part of the defendant, operated to discharge them from liability on their undertaking.</p>

<p>1. Lieu Insurance — Defense of Suicide — Missouri Statute.</p> <p>Rev. St. Mo. 1889, § 5855, which provides that, in suits on policies of life insurance issued by any company doing business in the state, it shall be no defense that the insured committed suicide, unless it is shown that he contemplated suicide at the time he made application for such policy, and that “any stipulation in a life insurance policy to the contrary shall- be void,” was applicable, as has been judicially determined, to policies or certificates of assessment companies issued and delivered in that state to a citizen thereof prior to the taking effect of Act March 30, 1887, for the regulation of assessment companies (Rev. St. 1889, 5860-5872). This act applied to foreign assessment companies doing business in the state, and contained a proviso that nothing contained therein should subject companies doing business thereunder to the provisions or requirements of the general insurance laws of the state, except as distinctly therein set forth. Reid that, conceding that under said act the provisions of section 5855 did not apply to certificates of assessment companies thereafter issued, yet, as to a certificate previously issued, said section was a part of the contract, and by its terms rendered void a provision tnerein exempting the company from liability in case of the death of the insured by suicide, and that the subsequent act of March 30, 1887, could not be construed as bringing such provision into effect, since, if given such effect, it would be unconstitutional, as impairing the obligation of the contract made by the parties, and in consideration of which the insured had paid his assessments.</p> <p>2. Same — Construction of Statute.</p> <p>In Rev. St. Mo. 1889, § 5855; which excludes a defense to an action on a life insurance policy on the ground that the insured committed suicide, the won Is coromiiti'd suicido" are used in their popular sense as comprehending: all cases where the insured took his own life, whether while sane or insane. Sanborn, Circuit Judge, dissenting.</p> <p>8. Same — Amendment of Constitution of Company — Retrospective Effect.</p> <p>The legislative aets of a private corporation, like those of a public body, are presumed to be intended to operate prospectively only; and amendments to its constitution adopted by an assessment insurance corporation, which, if given a retrospective operation, would change the contracts made by its outstanding certificates or policies by reducing- the amounts payable thereunder by their plain terms, will be construed as intended to affect only policies subsequently issued, unless there are imperative reasons which forbid such construction.</p> <p>4. Same — Assent of Policy Holder to Future Amendments.</p> <p>A clause in an application for a policy of life insurance in a mutual assessment company, that the applicant agrees, if accepted, “to abide by the constitution, rules, and regulations of the company, as they now are, or may be constitutionally changed hereafter,” cannot be reasonably construed as giving Ms assent in advance to any change which the company may see fit to make in its constitution or laws in the future which materially lessens the value of his policy, by reducing the amount of indemnity which by its terms the company promised to pay; nor will it have the effect of rendering such action binding upon him or the beneficiary in his policy.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>1. Questions Rkvif.wablb.</p> <p>A second appeal or writ of error in the same case only brings up for review the proceedings of the trial court subsequent to the mandate, and does not authorize a reconsideration of any question, either of law or fact, which was considered and determined on the first appeal or writ of error, notwithstanding a contrary decision of such question in the meantime by a state court in a different ease.</p> <p>2. Pleading — Aider by Verdict.</p> <p>Where the evidence supports the verdict, the pleadings, if defective, will be treated as amended to conform to the proofs.</p> <p>3. Same— Variance — Estoppel.</p> <p>A plaintiff cannot raise the objection of variance because of the absence of an allegation which was stricken from defendant’s answer on his own motion.</p>

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

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

Mary Jane Kimberlin, a white woman, the plaintiff in error, seeks by this writ of error to obtain a writ of mandamus to the commission to the Five Civilized Tribes, commanding it to enroll her as a citizen of the Chickasaw Nation. Her right to the writ rests upon the facts disclosed hy .her amended complaint, which were admitted by a demurrer. Those facts were these; William ⅛.

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

<p>In Error to the Circuit Court of the United States for the Distinct of Montana.</p> <p>This is an action originally brought by the St. Louis Mining & Milling Gompany, a Montana corporation, plaintiff in error, in the circuit court of the United States for the district of Montana, to recover damages for trespass, and the value of certain ores alleged to have been wrongfully appropriated and taken by the Montana Mining Company, Limited, a corporation of Great Britain, defendant in error. After trial by a court and jury, resulting in a verdict for the plaintiff in error in the sum of S23,20O, plaintiff in error now brings The suit to this court upon certain assignments of error, which, it alleges, deprived it of a larger verdict There is practically no contention between the parties as to the facts. The plaintiff in error is the owner of the St. Louis mining claim, situated near Marysville, in the state of Montana; and the de-' fendant in error owns the Nine Hour mining claim, adjoining the St. Louis claim on its easterly side. The St. Louis claim is the older location. It contains two'veins, known in the record as the Discovery rein and the Drum Lum-mon vein. The accompanying map gives the general location of the two claims, and all details of description which need be considered in this opinion:</p> <p> </p> <p>By way of explanation of the map, it may be stated that the line, E, C, D, is the dividing line between the two claims. The line marked "133-ioot plane” is a. projected line plane parallel to the southerly line of the St. Louis claim, and 133 feet southerly from the point, G, on the line, C, E. The line marked ‘•108-foot plane” is a similar plane 108 feet from the said point, G, and the line marked “520-foot plane” is a similar plane 520 feet southerly from the northeasterly comer of the St. Louis claim on the line, D, C. The strip of land included within A, B, G, E, is a strip 30 feet wide, called in the record the 30-foot or compromise .strip. The arrows show the direction of the dip of the vein to he eastwardly, and underneath the Nine Hour claim. The Discovery vein is not shown upon the map, hut it is established by the evidence to have a northeasterly and southwesterly trend, following generally the length of the claim as located. As to the Drum Lummon vein, there is a discrepancy between (he complaint and the evidence. The complaint alleges that it enters the easterly line of the St. Louis claim at the point, IT, or the 520-foot plane, and departs from the claim at the 333-foot plane at F. The evidence shows a different state of facts, to the extent that it appears therefrom that moro of the Drum Lummon vein is within the St. Louis claim to the north, and that the foot wall does not pass out of the St. Louis claim until a considerable distance southerly of the 133-foot plane, if it does at all. But the case will be considered as if the vein were located according to the allegations of the complaint (and the map so shows it), as the assignments of error herein are based upon such an assumed state of facts. Upon the trial of the cause, the plaintiff in error claimed the right to pursue the Drum Lum-mon vein extralaterally so long as any part of the apex of the vein was within the boundaries of the St. Louis claim. The defendant in error denied this right in toto, basing such denial upon the following state of facts: IVhen the predecessors in interest of the plaintiff in error applied for a patent to the St. Louis ground, they included the so-called 30-foot strip shown upon the map in the claim. The owners of the Nine Hour claim opposed the issuance of the patent so far as this strip was concerned, asserting that it was a part of the Nine Hour claim. A compromise was entered into, by which the owners of the St. Louis claim agreed to convey to the owners of the Nine Hour claim, upon their receiving a patent, the said 30-foot strip; and this was afterw'ards done, after suit had been brought for specific performance of the contract. The defendant in error claimed that by this deed, owing to its language and the nature of the transactions leading up to it, the plaintiff in error was foreclosed of the right to pursue the Drum Lummon vein under the said 30-foot, strip. The trial court permitted evidence of the value of ores alleged to be appropriated by the defendant in error from the vein as it passed under the Niue Hour claim and the 30-foot strip, between the 520-foot plane and the 108-foot plane, to go to the jury, and charged the jury that the effect of the proceedings had was to make the 30-foot strip a part of the original Nine Hour claim, and that the defendant in error had the same rights therein, and no further rights, than as if it had been originally patented as a part of the Nine Hour claim, and further charged the jury that the line, E, O, was a side line common to the two claims, and that, so long as the Drum Lummon vein apexed entirely within the St. Louis claim, the plaintiff in error could follow it in its dip under the Nine Hour claim, including the 30-foot strip. Upon this the jury rendered a. verdict in favor of the plaintiff in error for the sum of $23,209. A writ of error was sued out by the defendant in error to this court, and this court, in Montana Min. Co. v. St. Louis Min. & Mill. Co. (C. C. A.) 102 Fed. 430, sustained the lower court upon these propositions as submitted to the jury, holding the line, E, C, D, as shown upon the map, to be a boundary lino between the two claims and a side line of each claim, and granting the plaintiff in error here the right of lateral pursuit under both the 30-foot strip and the remainder of the Nine Hour claim. Hence in this opinion the 30-foot strip will not be treated separately, but will' be regarded as part and parcel of the Nine Hour claim. Upon the trial, however, the plaintiff in error further offered evidence to show the value of ores alleged to have been appropriated by the defendant in error, contained in the said Drum Lummon vein between the 108-foot plane and the 133-foot plane. This offer was made — -First, as to the portion of the vein between said planes underneath the 30-foot strip; and, secondly, as to the portion thereof under the Nine Hour claim to the easterly of the 30-foot strip. But, for the purpose of applying the principles of law which will control here, these two offers may be considered as one, in accordance with the decision in 102 Fed. 430, supra. The court sustained objections to the evidence offered, and, upon assignments of error based upon these rulings, the case is now before this court.</p>

<p>1. Post Office — Action on JVIaiu Contractok’s Bond — Evidence of Breach.</p> <p>In an action by the Uniteci States on the bond of a mail-route contractor. to recover damages resulting from the alleged abandonment of the contract by defendant, where the answer contains a general denial it is incumbent on the plaintiff io prove the alleged abandonment; and a certifícate of the postmaster general and correspondence of the post-office department in relation thereto, and a telegram from a postmaster to the department stating the fact of abandonment, are insufficient to make out a prima facie case of entire failure to perform the contract.</p> <p>3. Same — Fines for Violation of Contract — Evidence.</p> <p>A document authenticated by the postmaster general, tinder the seal of the department, reciting the imposition of a fine upon a mail-route contractor for nonperformance of his contract, as authorized by Rev. SI. § 3ÍMÍ2, is admissible as evidence of such fact, under section 882, and is sufficient, prima facie, to support a charge against the contractor, in his account with the department, of the amount of the fine.</p>

In Bankruptcy. On motion to confirm report of referee recommending that a discharge be denied the bankrupt, and on exceptions thereto.

<p>Bankruptcy — Administration of Estate — -Betting Aside Assignee’s Sake.</p> <p>Although it satisfactorily appears that a sale of property of bankrupts by an assignee to the wives of the bankrupts, the proceeds being subsequently turned over to the trustee in bankruptcy, is voidable, yet where the property has been resold, and such time has elapsed that it is doubtful whether the setting aside of the sale and the suit for an accounting thereby rendered necessary would result in any benefit to the estate, it will not be set aside at the instance of creditors, unless upon their giving a bond to indemnify the trustee for any loss which may result to the estate.</p>

<p>Bankruptcy — Right to Discharge — Fictitious Mortgage.</p> <p>The bankrupt, a woman, scheduled a debt to her sister for $3,000 for borrowed money, secured by mortgage on the bankrupt’s household effects and paintings. The sister did not prove her debt, and on a contested application for discharge (he only testimony to support the validily of the mortgage was that of the bankrupt herself, from which it appeared that at the time it was claimed the loans were made the sister was an orphan, unmarried, and but 38 or 20 years of age, who had inherited no property, and bad no business or occupation or apparent means, and who lived for the most part with her brothers or sisters. Her testimony was not taken by the bankrupt, although there was full opportunity, and the creditors were unable to obtain service of a subpoena upon her. Held, that on such testimony the mortgage must) be regarded as fictitious, and a discharge refused.</p>

<p>On Petitions by Lee Ping and Lum Tow for Writs of Habeas Corpus.</p>

<p>On Application for Appeal.</p>

<p>1. Patents — Suits to Obtain Issuance — Reissues.</p> <p>Rev. St. ¶ 4915, which provides that, “whenever a patent on application is refused, * * * the applicant may have remedy by bill in equity,” applies to applications for a reissue as well as to original applications.</p> <p>2. Same — Pleading—Sufficiency of Bill.</p> <p>In a suit brought under Rev. St. § 4915, to obtain the reissue of a patent refused by the patent office, the court exercises original Jurisdiction, and the inquiry extends to the invention as an entirety, the right of the complainant to be determined on all competent. evidence, and not merely on the record made on the patent office; hence the bill must fully disclose the facts upon which the invention is claimed.</p>

<p>1. Admiralty — Service, of Process — Following State Statute.</p> <p>Service of monition in admiralty may be made under the provisions of g. state statute regulating the mode of service in actions at law and in equity.</p> <p>'2. Foreign Corporations — Service of Process — California Statute.</p> <p>Under Code Civ. Proc. Gal. § 411, which authorizes service of process on foreign corporations “doing business and having a managing or business agent, cashier or secretary within this state,” by service on such agent, cashier, or secretary, to render such a service effective, where made on a person as the business agent of a foreign corporation, the corporation must be in fact doing a substantial part of its business within the state, so as to be subject to the statute, and the agent must be one having actual derivative authority bearing a close relation to that of managing agent, cashier, or secretary, and not merely an agency created by construction oi implication, contrary to the intention of the parties.</p> <p>8. Same — Business Agent.</p> <p>A broker in San Francisco, at his own solicitation, was furnished prices by a machinery manufacturing corporation of Illinois, and occasionally made a sale of articles made by if, to be deliyered on board cars at the factory, adding to the price given him a commission for himself. The company declined to appoint him an agent, and paid him nothing. Eeltl that such transactions did not constitute a doing of business by the corporation in California, nor make such broker its business agent in that state, ivithin the meaning of Code Civ. Proc. § 411, so that service of monition upon him in a suit in admiralty would give the court jurisdiction of the corporation.</p>

This was a bill tiled by Elizabeth L. Nix, the appellee, against Charles T. Hammon and George M. Seeger, the appellants, to remove a cloud upon her tide to the James V. Dexter lode survey, No. 416A, situated in the TJncom-pahgre mining district, Ouray county, state of Colorado.

The United States of America exhibited its bill in the United States circuit court for the district of North Dakota against the Northern Pacific Kailway Company, the appellant, to restrain it from creating an obstruction in the channel of the Red River of the North opposite the city of Grand Forks, in the state of North Dakota.

<p>Equity Pleading — Sufficiency or Bill— Statement of Cause of Action.</p> <p>A bill filed by alleged creditors of a corporation against its directors, to hold them liable for the amount of its indebtedness to complainants, because of their alleged violatior of the statute in their conduct of its business, must set out. the facts relating- to complainants’ claims against the corporation with particularity, so as to advise the defendants explicitly of what they are required to meet; and an allegation in such a hill that the corporation is indebted to a complainant in a sum “exceeding ?239,-000,” on a contract of indemnity and insurance against liability for death or injury of employes, etc., bearing a certain date (a copy of the form of such contract being set out), is wholly insufficient, where there is no statement of the happening of any occurrence which it is claimed created a. liability under such contract, or of any facts showing how or when any part of such liability arose, or that any claims or proofs were ever submitted to the company on account of it.</p>

In Equity. On questions certified to the court by the master as follows: “To His Honor, Judge Simontom The question under consideration being of very great importance, it is agreed by counsel that it be certified to your honor, waiving any points as to procedure.

<p>Injunction — Grounds—Restraining Publication of Libel.</p> <p>A court of equity is without jurisdiction to enjoin the publisher of a newspaper from inserting therein libelous articles against the complainant.</p>

<p>Water — Contracts for Supplying — Validity under Laws of California.</p> <p>Const. Cal. 1879, art. 14, § 2, providing that “the right to collect rates or compensation for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in a manner prescribed by law,” does not render invalid contracts for the supplying of water, and the payment of rentals therefor, until such time as the legislature shall expressly confer power by statute to make such contracts, but its purpose is to require conformity to such statutes if enacted.</p>

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

<p>Appeal — Appealable Orders.</p> <p>An order made by a circuit court granting leave to sue its receiver in a state court is discretionary and administrative, and is not appealable.</p>

The questions arising upon this writ of error originate in a petition filed by the United States for tlie condemnation and appropriation of certain property in the city of Cleveland, Ohio, for the purpose of constructing a building for the use of the government as a post office, court and custom house.

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

In this ease Mary S3. ITaydel, the plaintiff in error and the plaintiff below, sued the Mutual Reserve Fund Life Association,’ the defendant in error, to recover the amount alleged to be due on two policies of Insurance issued by the defendant company on the life of her deceased husband, F. L. Haydel, one of which was executed August 1, 1884, in the sum of $10,000, and the other on September 15, 1884, in the sum of $5,000.

<p>1. Carriers — Delay in Transportation or Stock — Measure of Damages.</p> <p>In an action against a railroad company to recover damages for an alleged unreasonable delay in the transportation of cattle, it is .not error to take as the basis for computation of damages the difference in the market price of the cattle in the market to which they were being shipped, where their destination was known to the defendant, although its contract covered their transportation only over its own line, and their delivery to a connecting carrier for the remainder of the shipment.</p> <p>2. Evidence — Competency of Expert Witnesses — Market Value of Cattle.</p> <p>Stockmen who for 10 years have been engáged in shipping and selling cattle in the principal markets, and are familiar with the grading of cattle therein. and with prices as given in the market quotations, are competent to testify to the value in such markets at a given time of a particular shipment of cattle, of whose quality and condition they had personal knowledge.</p> <p>3. Carriers — Dei,ay in Transportation of Stock — Defenses.</p> <p>A railroad company cannot he exonerated from liability for an unreasonable delay in the transportation of stock on the ground that a heavy dew rendered the track slippery and impeded the progress of Uie train; such an occurrence being an ordinary one, against the effect of which it was the duty of the company to provide.</p> <p>4. Appear — Affirmance-—Statutory Damages.</p> <p>The provision of Mans! Dig. 1311 (Ind. T. Ann. St. 1899, § 813), adopted and in force in the Indian Territory, which requires an appellate court, upon the affirmance of a judgment for the payment of money, which has been superseded, to award against the appellant 10 per cent, damages on the amount superseded, is obligatory on the United States court of appeals for the' Indian Territory.</p> <p>5. Carme ns — Damages for I)ei,ay in Shipment — Interest.</p> <p>An action against a railroad for delay in the transportation of stock, by reason of which the shipper suffered damage, is one for breach of contract, and interest is recoverable on the amount of the loss from the time compensation therefor was demanded.</p>

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

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

In Error- to the Circuit Court of the United States for the District of Kentucky.

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

Action at law to recover damages for the death of the husband and father of the plaintiffs, caused by an injury to the deceased while he was in the employ of the defendant ás a brakeman.

<p>At Law. On demurrer to declaration.</p>

<p>In Bankruptcy. Petition by receiver for restraining order.</p>

<p>1. Bankruptcy — Acts or Bankruptcy — Suffering or Permitting Preference.</p> <p>To constitute an act of bankruptcy, under Bankr. Act, § 3a, subd. 3, by suffering or permitting, while insolvent, a creditor to obtain a preference through legal proceedings, and not having discharged such preference at least five days before a sale or final disposition of the property affected, it is not necessary in all cases that an actual levy on property should have been made; but the payment of money to the sheriff holding an execution, by the debtor or another by his direction, the money being his, and its application by the sheriff on the execution, is a final disposition of property, which completes the preference, within the meaning of the statute, by giving the judgment creditor an advantage over other creditors.</p> <p>2. Same — Proof of Insolvency.</p> <p>The inability of a partnership to meet its matured obligations, together with its dissolution, and the transfer of practically all of its property to creditors, either 'by way of payment or security, leaving other debts unpaid, are facts sufficient to establish its'insolvency.</p> <p>3. Same — Petitioning Creditors — Creditor Who has Obtained, a Preference.</p> <p>A creditor of an insolvent, who, without fraud, has collected a portion of his debt on execution, is not thereby estopped from joining in a petition to have the debtor adjudged a bankrupt; but, before such adjudication will be made, where he is one of the three petitioning creditors required by the statute, he will be required to surrender the preference obtained by means of his judgment and execution, by paying the money collected thereon into court.</p> <p>4. Same — Amendment of Petition.</p> <p>Where, on a hearing before a referee on the issues joined on a petition in involuntary bankruptcy, the testimony of the alleged bankrupts discloses an additional act of bankruptcy, not specified in the petition, an amendment will be deemed to have been made to include such act.</p>

<p>In Bankruptcy. On claim of the bankrupt’s wife as a creditor.</p>

In Bankruptcy. On motion to confirm report of special master appointed to ascertain and report to the court the facts touching the acts of bankruptcy alleged to have been committed by Ralph W. Gillette and Louis Prentice, and by the firm of Gillette & Prentice, with his conclusions thereon.

<p>Bankruptcy — Fees op Marshal — Service op Papers Required by Ruees op Court.</p> <p>Where, by a rule of a federal court, service of the petition and affidavits upon which an order to show cause is based is required to be made together with such order, and the marshal makes such service in a bankruptcy proceeding, lie is entitled to charge and receive a reasonable fee therefor in addition to his fee for the service of the order under Bankr. Act 1898. § 02b, although the petition cannot be considered a writ within the meaning of Rev. St. § 829; and The same fee fixed by such section, for the service of a writ, where it has customarily been charged and allowed by the court, must be regarded as reasonable.</p>

<p>Bankruptcy — Title of Trustee to Bankrupt’s Property — Receiver of State Court.</p> <p>Code Oiv. Proe. N. Y. § 2468, provides that the property of a judgment debtor vests in a receiver appointed in supplemental proceedings, who has duly qualified, from the time of filing the order appointing him, subject to the exception that, “(2) where the judgment debtor at the time the order is filed resides in another county in the state, his personal property is vested in the receiver only from the time when a copy of the order, certified by the clerk in whose office it is recorded, is filed with the clerk of the county in which he resides.” Beld, that under such provision a receiver appointed in a county other than that in which the judgment debtor at the time resided, and a copy of whose appointment had not been filed in the county of the debtor’s residence at the time the latter was adjudged a bankrupt, had acquired no title or claim to the personal property of the debtor as against the trustee in bankruptcy.</p>

<p>In Bankruptcy.</p>

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

<p>In Bankruptcy.</p>

In Bankruptcy. On exceptions to report of a referee recommending the granting of a discharge to the bankrupt. Report of D. L. Grayson, Referee; In the Matter of tlie Specifications of Objection to Discharge Filed hy Bank of Charleston.

<p>In Bankruptcy. On question certified by referee.</p> <p>I, D. L. Grayson, one of the referees of said court 'in bankruptcy, do hereby certify that in the course of the proceedings in said cause before me the following question arose, pertinent to the said proceedings: The said bankrupt, H. W. Richard when examined at the first meeting of his creditors, admitted tha t he had In his house and under his control the sum of $150 in currency or notes, which he failed to schedule among his assets, claiming that, said money was the net proceeds of sale of a small grocery business which he had been engaged in running up to a period of about 10 days preceding the filing of his petition, under the name of H. W. Bichard, Agent, for his minor children, for whom he was guardian, and that said business was run and conducted by him upon capital belonging to his said wards, and that for this reason the proceeds of said sale were likewise the property of said children, and in no sense a part of his estate. The only proof taken upon this question was the testimony of the bankrupt himself, from which it appears that on January 6, 1806, the Mutual Life Insurance Company of New Stork paid to him, as guardian for five of his children, who were then minors, the sum of $492,42; this being the proceeds of the surrender value of a certain life insurance policy upon his own life taken out for the benefit of his wife and said children, the wife having died before the policy was surrendered. This money, when received by said bankrupt, was deposited in bank by him in the name of IT. W. Bichard, guardian, but at various times thereafter, and down until July, 1896, was drawn out by him on checks, until the entire sum was withdrawn, and the account closed upon the bank’s books. See exhibit furnished by bank. Subsequent to the closing of said account, it does not appear that any other bank account was kept of said guardianship fund, but thereafter, and until the date of the filing of this petition, all of said fund, except such portion thereof as was expended in the maintenance and support of said minors (and the amount of such expenditure for this purpose is not made to appear), was kept by the bankrupt about his own person in cash, together with any other moneys he received from other sources (he admitting that he had received other moneys from the proceeds of his own labor); and the two funds were kept mingled together as one, except that the bankrupt claims to have kept in a memorandum book a separate account of the trust fund, and to which was credited all profits earned as ihe result of various investments in eggs, clay peas, etc,, which the bankrupt made from time to time before entering into the grocery business with said trust money. The said memorandum book was not produced before me, and no statement furnished showing the exact status of the trust fund at the date of the filing of this petition. In the summer or early fall of 1896 the said bankrupt purchased, for $110 in cash, a small grocery business on Hast Ninth street, subsequently removing to Whiteside, and then to West Ninth street, where he sold out in October, 1890, to one J. J. Sullivan, for S200; the remaining $50, other than the fund of $150 now in controversy, having been expended in paying the filing fees in this case and in household expenses. Tt appears, as before stated, that this guardianship fund has, since the withdrawal from bank, never been kept separate and apart from the other moneys of said bankrupt, but that the fund, as a trust fund, has long since lost its identity as such, on account of the intermingling of it with other moneys earned by the bankrupt on his own account It further appears from his testimony that he made use of all of such moneys as a common fund out of which to pay obligations, who I her of a trust or general character, and only kept a separate record of the trust fund in a memorandum book, which he failed to produce. I am of the opinion from this evidence that said trust fund has lost its identity as such, in the sense which would entitle the wards to follow it into property in which it had been invested (at least, to the exclusion of other creditors), and that the proceeds of the sale of said grocery business are not, for the reasons stated, the sole property of said minor children, of whom there are now three, the remainder having come of age, and having been settled with, but said trust fund must be paid into this court for the equal and joint benefit of all creditors, and that said minors occupy no better position than any other creditor with respect to said fund, but are only entitled to share in the same pro tanto with other creditors. I therefore order that said bankrupt pay into this court within 10 days from this date said sum of $150, the proceeds of sale of said grocery business, admitted by him to be now in his possession and control at the date of filing of his petition. And the said question, at the request of the attorney for said bankrupt, is herewith certified to the Honorable O. D. CLARK, District Judge, for his opinion thereon.</p>

<p>Bankruptcy — Consent Order for Settlement of Estate — Rights of Creditors Subsequently Appearing.</p> <p>An order entered by consent of all known creditors in proceedings against an'insolvent’corporation for the settlement of the estate and distribution of the proceeds as therein provided, but not in accordance with any express provision of the bankrupt act, must be held subject to the rights of any unknown creditors who may appear within the time given by law and present their claims.</p>

<p>1. PATENTS — INVENTION—CONSTRUCTION OF CLAIMS.</p> <p>The fact that a patentee possibly did not appreciate every result of his inven Li on, or failed to state its full scope in his specification, will not deprive him of the benefit of claims which are broad enough to cover it.</p> <p>8. Same — Suit for Infringement — Evidence op Anticipation.</p> <p>Oral testimony of witnesses that an unpatented machine, which is not before them or in court for inspection, operates in the same way and "produces the same results as the machine of a patent, based on their recollection or upon a model produced, without any explanation of how, when, or by whom it was made, or for what purpose, and only identified with the machine in question by a general statement that it represents the construction of such machine, is not sufficiently certain to establish anticipation.</p> <p>3. Same — Burder of Proof.</p> <p>A showing by a defenflant that the owner of an unpatented machine, which is claimed to be an anticipation of the patented machine in suit, refused to permit it to be brought into court, and a disclosure of where it can be seen, do not relieve him of the burden of proving the anticipation by clear and certain evidence, or east upon the complainant the duty of inspecting the machine and disproving anticipation. By an application to the court, its aid could be secured, either for the production of the machine, or to obtain a correct reproduction for use at the trial.</p> <p>4. Same — Infringement—Crushing Machine.</p> <p>The Williams patent, No. 489,236, for a crushing and pulverizing machine, was not anticipated and is valid. Claims 1, 2, and 3 construed, and held infringed.</p>

<p>1. Patents — Anticipation—Prior Publications.</p> <p>A prior publication, referred to as an anticipation, must be given effect in accordance with what it actually communicates to the public, and expert testimony cannot be received for the purpose of showing that statements therein made were erroneous, and to give it the effect it would have if reconstructed so as to disclose matters which it might or should have stated, but which it in fact did not.</p> <p>3. Same — Dyes—Indoine Blue.</p> <p>The Julius patent, No. 524,254, for “Safranine Azo Naphthol Lake,” a blue dyestuff prepared from safranine azo naphthol, and which is soluble in water, and constitutes a cheap and valuable substitute for vegetable indigo, held not anticipated, valid, and infringed as to claims 1, 2, and 4.</p>

<p>1. Patents — Validity—Determination on Demurrer.</p> <p>A patent cannot be held invalid on demurrer unless its invalidity so clearly appears on its face tliat no evidence can change the leg'al aspect of the case, and entitle the complainant to recover.</p> <p>2. Same — Gas-Motor Road Vehicles.</p> <p>The Selden patent, No. ,549,100, for a road vehicle propelled by a liquid hydrocarbon gas engine of the compression type, the application for which was made in 1879, is not so clearly lacking in invention, in view of the then state of the art, that it can be held void on its face.</p>

<p>1 Patents — Validity—Brush Holders.</p> <p>Claims 4 and 5 of letters patent No. 462,973, dated November 10, 1891, granted to E. Thomson and W. O. Wakefield, for an “Improvement in Brush-Holders for Dynamo-Electric Machines,” are void as lacking patentable novelty, in view of the prior art.</p> <p>2. Same — Infringement.</p> <p>Claims 1, 2 and 4 of letters patent No. 394,999, dated December 25, 1888, granted to Edwin W. Rice, Jr., for a “new and useful Brush and Brush-Holder,” are valid, and claim .2 has been infringed by the defendant.</p> <p>(Syllabus by the Court.)</p>

<p>In Admiralty. On exceptions to interrogatories filed with answers.</p>

<p>1. Shipping — Construction of Charter — Delay for Repairs.</p> <p>A vejssel was chartered for a voyage from San Francisco to a European port with a cargo of wheat, and was to proceed in ballast from Australia, where she then was, to the port of loading. The charter provided that she should be in good condition, and a certificate of charterers’ competent surveyor was to be furnished the charterers, which, if not satisfactory to either party, should be followed by a special survey or arbitration. Following such provisions was one that, “should the vessel fail to pass satisfactory survey,-or, in ease of submission to arbitration, should the decision be against the vessel, or should the vessel be detained more than ten days for repairs, this charter to be void, at charterers’ option.” Held, that in view of the conditions existing at the time the charter was made, and the long voyage without profit which the vessel was required to make in order to enter upon the charter, the latter clause of such provision must be construed to relate to a delay for repairs occurring after the vessel had been tendered to the charterers, and found to be necessary by the surveyor or arbitrators, and that a delay of more than 10 days for repairs after the vessel reached San Francisco, but before she was tendered to the charterers, did not justify them in rescinding the charter.</p> <p>2. Same — Right to Rescind Charter — Delay in Delivery of Vessel.</p> <p>A total delay of 21 days after the vessel reached San Francisco, before she was tendered to the charterer, was not so unreasonable as to authorize him to rescind the charter, where she was tendered nearly a month before the expiration of the time allowed by the charter for her arrival.</p> <p>3. Same — Breach of Charter — Measure of Damages.</p> <p>The measure of damages lor a total breach of a charter by the charterer, by refusing to accept the vessel, is the difference between the net earnings which the vessel would have made under the charter and the net earnings which she actually made, or should have made, during the time which would have been required, under ordinary conditions, to make the voyage required by the charter.</p> <p>4 Same.</p> <p>Where, on the refusal of a charterer to accept the vessel, she was at once advertised for charter, and recliartered to the same person, for the same voyage, at a lower rate, which voyage she made, the difference between the freights to be paid under the two charters, plus the demurrage fixed by the original charter for the delay in obtaining the second, does not furnish the measure of damages, but the measure is the difference between the freight which would have been received under the first charter and the amount actually earned under the second, up to the time when the voyage under the first would have been completed, the expenses of the two voyages being presumably the same; and, where the one actually made was under ordinary conditions, it furnishes relevant evidence of the time which would have been required under the first charter.</p>

<p>In Equity. Suit for injunction.</p>

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

<p>Action at Law. On motion for new trial.</p>

<p>At Law. On demurrer to petition presenting question of jurisdiction.</p>

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

The plaintiff in error was a workman in the employment of the defendant in error, a corporation, which was operating a line of railway in the state of Oregon. The railroad ran through a certain cut bounded upon either side by steep and nearly perpendicular embankments.

<p>1 Trial — Statements by Counsel to Joky.</p> <p>It is not error to permit counsel for a defendant to state to the jury that he was unable to put in evidence the books of the plaintiff corporation because the court had excluded them, merely for the purpose of preventing the jury from drawing an inference unfavorable to the defendant because of their absence, where no attempt if made to state the contents of the books, or to comment on their, exclusion.</p> <p>2. Corporations — -Stockholders—Evidence op Relation.</p> <p>The fact that a person’s name appears on the books of a corporation as a stockholder is not sufficient evidence upon which to charge him as such, but, the relation of corporation and stockholder being contractual, the assent of both parties, either express or implied, must be shown.</p> <p>Thomas, District Judge, dissenting on the facts.</p>

<p>Reference — Consent Order — Review of Referee’s Findings.</p> <p>Where a case involving the examination of long and complicated accounts, and the taMng of the testimony of many witnesses, is by consent of the parties referred to a special master to hear and determine all issues of law and fact involved, his findings and conclusions have every presumption in their favor, and are not to be set aside unless there clearly appears to have been error or mistake, or for fraud or misconduct on his part.</p>

On Petition for Writ of Mandamus to Gompel Allowance of Appeal. The petitioner, Adler, was adjudged a bankrupt upon his voluntary petition by the district court for the Western district of Tennessee on the 12th day of October, 1899. With his petition he filed a schedule of his property, and a list of his creditors, as required by the bankruptcy act of 1898.

<p>In Bankruptcy.</p>

<p>Bankruptcy — Withholding Property from Trustee — Summary Proceedings.</p> <p>On the appointment and qualification of a trustee in bankruptcy he is vested with the title to the bankrupt’s property, which carries with it constructive possession. The property is thus brought into the custody of the court, and the trustee cannot be compelled to resort to a suit to recover its possession, where his right is not contested, but any one withholding such possession while making no claim to the property is guilty of a contempt of court, and may be summarily proceeded against for its recovery.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Transfer of Property to Attorney — Unexecuted Agese-me NT.</p> <p>An agreement by an insolvent debtor, made after the filing of a petition in involuntary bankruptcy against him and in contemplation of the filing of a voluntary petition, that his attorney should take certain goods in payment for his services, where there was no actual delivery or change of possession until after the adjudication upon the voluntary petition, did not constitute a transfer of the property, within the meaning of Bankr. Act, § 60d, and the goods, having been removed after such adjudication and while they were in custodia legis, must be restored to the trustee.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Virginia, in Bankruptcy. Mrs. Marian H. Richardson, a married woman, conducted a mercantile business at Plumpoint under the style of J. L. Richardson, Agent. J. L. Richardson, the agent, was her husband. The family consisted of the husband, the wife, and a daughter 13 years old, all of whom resided in a house owned by the wife.

<p>On Petition for Review of Decision of tbe Board of General Appraisers.</p>

<p>1. Homicide — Negligent Management of Vessel — Construction of Federal Statute.</p> <p>Eev. St. § 5344, first enacted in 1838, and revised in 1871, which subjects to prosecution for manslaughter “any captain, engineer or pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention .to his or their respective duties on such vessel the life of any person shall be destroyed,” is not restricted in its application to vessels propelled in whole or in part by steam, as was the original statute, but the word “vessel” must be construed, in accordance with its definition given in Rev. St. § 3, as including “every description of water craft, or other artificial contrivance used, or capable of being used, as a means of transportation on water.”</p> <p>2. Same — Elements of Offense — Intent.</p> <p>Under such statute the offense is complete when the misconduct, negligence, or inattention in the navigation of a vessel by one of the persons named results in the loss of human life, and an indictment thereunder need not charge a criminal intent.</p>

In Equity. Suit for infringement of patents. On pleas filed by each of the defendants separately, denying the jurisdiction of the court.

<p>1. Patents — Oonsteuction of License — Rights of Licensee Aftek Tekmt-natton.</p> <p>A license to manufacture a computing scale under a patent contained a provision that the licensees should “have the-right to determine this contract. and their obligation thereunder, by giving six months’ notice in writing to said first party of their intention to discontinue the manufacture and sale of such scales under this contract.” HeW>, that the effect of such notice was merely to terminate the contract relations between the parties, and that the provision did not impose upon the licensees any duty, after such termination, to cease the manufacture of the scale they had theretofore made and sold under the license, but left them with the same right a stranger would have to dispute the title or right of the former licensor.</p> <p>2. Same.</p> <p>The right of the licensees to terminate the contract and surrender the license, if it existed, ivas purely one derived from the terms of the contract itself, and the legality of their action in exercising such right cannot be affected by the motives with which they acted, and especially such motives could not affect their rights after the license had been surrendered and the surrender accepted.</p> <p>8. Same — Continued Use of Patentee's Name — Injunction.</p> <p>Where a manufacturer of an article under a license from a patentee avails itself of a provision of the contract to terminate the same and surrender the license, but continues to manufacture and sell the same article, it no longer has the right, as against the patentee or a subsequent licensee, to use the name of the patentee, in connection with its goods subsequently manufactured, in such way as to lead the public to understand that they are still made under his patent, and such use may he enjoined.</p>

<p>Cross Appeals from the District Court of the United States for the District of South Carolina.</p>

<p>1. Depositions De Bene Esse — Right to Take in Foreign Country.</p> <p>Depositions de bene esse cannot be taken, under Rev. St. § 863, in a foreign country.</p> <p>2. Admiralty Pleading — Issues—Petition oe Intervention.</p> <p>Where the respondent in a suit in admiralty desires to raise a new issue, in addition to those raised by the answer as filed, it should be done either by amendment to the answer or by a proper plea. When the answer was filed by the master of the libeled vessel as agent for the owners, such owners cannot raise a new issue by a petition in intervention, filed without notice to the libelant, or the service of a copy on him.</p> <p>3. Salvage — Actions—Pleading.</p> <p>Where the respondent in a suit to recover for salvage services relies upon a defense of misconduct on the part of libelants which forfeited their right to recover salvage, he must specially allege the facts constituting such misconduct, with due certainty of time, place, and circumstances, and the proof must support such allegations.</p> <p>4. Same — Amount of Award.</p> <p>A steamship grounded upon a reef off the Florida Keys. Her value with cargo and freight was from $200,000 to $225,000. She was rescued by libelants, who were licensed wreckers, without injury, and with the loss of but a small part in value of her cargo, which was jettisoned. She was off a lonely part of the coast, 90 miles from Key West, and there was considerable danger from storms at that season, although the weather was fair during the two days occupied in the salvage operations. Libelants employed in the service some 18 or 19 wrecking sloops and schooners, valued at about $27,000, and 120 to 130 men, who unloaded upon the wrecking vessels, as lighters, 130 tons of cargo, which was afterwards reloaded, and jettisoned about 130 tons of lumber. They were also aided on the second day, for a few hours, by a tug valued at $35,000. The service was attended by no great risk of life or property. The vessel was once floated and again grounded, and there was some evidence that the master wrecker was in part in fault for the second grounding, which rendered the services of the tug necessary. Held, that an award of $11,500 was proper, to cover all the services.</p>

<p>In Admiralty. Libel and cross libel to determine rights under a charter.</p>

<p>On Motion for Decree and Exceptions to Commissioner's Report.</p>

<p>Removal of Causes — Timm for Filing Petition — Extension of Time to Answer.</p> <p>It is the settled practice in the Second circuit that an extension of time to answer by an order entered in a state court extends the time for filing a petition for removal.</p>

<p>In Equity. On motions by defendants to dissolve a preliminary injunction, and by complainant to remand to state court.</p>

<p>On application for an order requiring witnesses to show cause why they should not be punished for contempt.</p>

<p>1. Appeal — Review—Questions of Fact.</p> <p>A finding by the court in an equity ease that a note and mortgage were fraudulent in fact because executed with intent to hinder and delay the other creditors of the mortgagor will not be disturbed on appeal, where the evidence is conflicting, unless some serious or important mistake has been made in its consideration.</p> <p>2. Fraudulent Conveyances — Exempt Property — Improvements- on Indian Lands.</p> <p>Under Act May 2, 1890 (1 Supp. Rev. St. [2d Ed.] p. 734, c. 182), which exempts improvements on Indian lands, unless made by persons or companies operating mines, railroads, or other industries, from attachments or from sale on execution except on the judgment of an Indian court, and permits their sale in supplemental proceedings only when owned by adopted citizens of a tribe or a resident who is not a citizen, a creditor of a citizen of an Indian tribe by blood cannot attack as fraudulent a conveyance by his debtor of improvements on agricultural lands, since, in a legal sense, he has no interest in the property.</p> <p>3. 'Set-Off — Right to Plead — -Equitable Garnishment.</p> <p>A defendant in a suit by a judgment creditor in the nature of an equitable garnishment, who is sought to be charged as a debtor of the judgment defendant, may make any defense which would be available against his creditor, including that of offset; and, since the plaintiff has no rights beyond those Of his own debtor, he cannot compel the defendant to resort to a mortgage to secure payment of a note of the judgment defendant which he has pleaded as an offset.</p>

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

<p>1. Cittkknsiitp — Women Married to Aliens.</p> <p>The political status of a native-born American woman who marries a citizen oí France or England, and removes with him to his country, follows that of her husband.</p> <p>2. Internal Revenue — War Revenue Act op 1898 — Legacy Tax.</p> <p>War Revenue Act 1898, § 29 (30 Slat. 464), which imposes a tax upon legacies and distributive shares of personal property which pass “either by will or by the intestate laws of any state or territory,” does not apply to a bequest of property, unless such property, in the absence of a will, would be distributable under the intestate laws of some state or territory.</p> <p>8. Same.</p> <p>Such act contains no provision evidencing an intention to give property, for the purposes of the tax, a situs separate from that of the owner; arid it must therefore be presumed that it was intended to apply only in cases where the persons and property have a recognized legal situs within the United States, and not in cases where the transmission of the property which is the subject of tlie tax is governed by the law of a foreign country, owing to the domicile there of the decedent, although the property itself may be within this country, and be here administered upon.</p> <p>4. Same — Law Governing Transmission op Personae Property.</p> <p>Code Civ. Proc. N. X. § 2894, which provides that the validity and effect of a tosí ament ary disposition of personal property situated within the state, and the ownership and disposition of such property, where it is not disposed of hy will, are regulated hy the laws of the state or country of which the decedent was a resident at the time of his death, does not mate the foreign law a part of the law of the state in such sense that the primary source of power to transmit or receive property owned hy a nonresident alien decedent is found in the laws of the state, so as to bring it within the provisions of War Revenue Act 1898, § 29 (30 Stat. 404), hut is merely ■ declaratory of the generally recognized rule, and the title transmitted springs from the foreign, and not the domestic, law.</p> <p>5. Same — Bequest by Nonresident Alien.</p> <p>A woman who was a citizen of, and domiciled in, France, died abroad, and hy her will, which was executed and probated in New York, bequeathed to her daughter, also a nonresident alien, property consisting of an account against citizens of New York and stock and bonds of American, corporations which were actually within the state. Held, that such bequest was not subject to the tax imposed by section 29'of the war revenue act of 1898.</p>

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

The trial court made a special finding of facts which supersedes the necessity of any other statement of the case.

<p>1. Bankruptcy — Jurisdiction of Proceedings — District of Bankrupt’s Place of Business.</p> <p>Proof that an alleged bankrupt, whose residence and domicile had for years been in another state, had her principal place of business in the district where the petition was filed, up to a time four months prior to the filing of such petition, after which she had no place of business, is not sufficient to give the court jurisdiction of the proceedings under Banlsr. Act 1898, § 2, subd. 1, which confers jurisdiction over the estates of bankrupts who have had their principal place of business within the territorial jurisdiction of the court “for the preceding six months or the greater portion thereof.”</p> <p>2. Same — Jurisdiction must Affirmatively Appear.</p> <p>The essential facts which give a court jurisdiction of bankruptcy proceedings must appear affirmatively and distinctly, and where such jurisdiction rests solely upon the allegation that the alleged bankrupt had her principal place of business within the district for the greater portion of the preceding six months, and it further appears that four months before the filing of the petition she made a general assignment under the state laws, it cannot be presumed, in favor of the jurisdiction, that her assignee continued the business for more than a month thereafter, even assuming that such fact, if shown, would constitute, in legal effect, a continuation of business by the alleged bankrupt.</p> <p>3. Same — Effect of Act on Assignments — State Decisions.</p> <p>The question of the effect of the bankruptcy law upon the validity of a general assignment made after its passage, in accordance with the provisions of a state statute, is not one which is governed by any rule of decision in the state, but will be determined independently by the federal courts.</p>

The firm of Steele & Co. and Daniel Steele, Anna M. Steele, William M. Steele, and Daniel H. Steele, the individual members composing the firm, were duly adjudged bankrupts in the district court of the United States for the Southern district of Iowa, Eastern division. All the parties were, when the proceedings in bankruptcy were instituted, heads of families, and citizens and residents of the state of Iowa.

<p>In Bankruptcy. Question certified by referee.</p>

<p>Bankruptcy — Objections to Discharge — Time for Filing.</p> <p>Specifications of objections to the discharge of a bankrupt, filed after the expiration of the time prescribed therefor by general order 32, without leave of court or valid excuse for the delay, will be dismissed on motion of the bankrupt.</p>

<p>In Bankruptcy. On rules to vacate restraining order and appointment of receiver.</p>

<p>In Bankruptcy. On petition to review action of referee.</p>

<p>Bankruptcy — Provable Debt — Stay of Suit on Unliquidated Claim.</p> <p>An unliquidated claim that might have been liquidated and proved against a bankrupt under the provisions of Bankr. Act 1898, § 63b, but which was voluntarily withheld until after the expiration of the time for proving claims, should be treated as a provable debt, from which the bankrupt will he released by a discharge under section 17; and he is entitled to an order staying a suit thereon subsequently brought in a state court, as provided in section 11, pending the determination of hi» application for a discharge.</p>

<p>In Bankruptcy. On certified proceedings asking for rule for contempt.</p>

<p>In Bankruptcy. On application by petitioning creditor for an injunction.</p>

<p>Public Lands — Prosecution for Cuttino Timber — Instruction Based on Mistake as to Law in Force.</p> <p>Defendant was prosecuted by information charging him with cutting timber on nonmineral public lands situated in Colorado. The court tried the case upon the theory that the information was based on section 4 of Act June 3, 1878 (20 Stat. c. 151), which prohibits the cutting of timber for sale or export upon any of the public lands in certain designated states and territories, and instructed the jury that under the evidence it was immaterial whether the lands from which the cutting was done were mineral or nonmineral. Such statute in fact is not applicable to the state of Colorado, but under Act June 3, 1878 (20 Stat. c. 150), authorizing citizens and bona fide residents to cut timber for certain purposes from mineral lands in accordance with prescribed regulations, which is in force in that state, defendant was entitled to show as a defense that his cutting, was in accordance with such act and the regulations made thereunder, and some evidence was introduced tending to sustain such defense. Held, that the court’s instruction, having been based on a mistaken view of the law applicable to the case, and not upon the evidence, was erroneous, and required a reversal of the judgment, where no question as to the sufficiency of the evidence to warrant the submission of the issue to the jury was made by either party, and the record did not show that all the evidence was contained therein.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

This was an action by the plaintiffs in error based upon section 4965 of the Revised Statutes oí 1he United States as amended by the acts of March 3, 1891, and March 2, 1895, to recover the penalties prescribed for infringement of copyrights.

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

<p>Shipping — -Breach of Charter — Inability to Insure Cargo.</p> <p>It was a condition of a parol charter of a sailing vessel to carry a cargo on the Great Lakes that the charterers should be able to procure insurance on the cargo. Owing to delays, the vessel did not arrive at the port of loading until November 14th,' some two weeks after th'e time her agent had stated she ought to arrive, and, by reason of the fact that navigation by vessels of her class was considered extrahazardous at that season of the year, the charterers were unable to insure her cargo, and they refused to load her. They applied to but a single agency in Buffalo for insurance, but such agency represented a number of companies, and did a large business in marine insurance. It appeared that the charterers acted in good faith, and they paid a higher rate of freight for the carrying of the cargo by a larger vessel, which enabled them to effect insurance thereon. Held, that they were not liable for damages for a breach of the charter.</p>

<p>Admiralty — Amendment of Decree — Expiration of Term.</p> <p>A court of admiralty has no power to amend a final decree on petition or motion for a rehearing filed after the expiration of the term at which the decree was enrolled, even though error in its findings is shown.</p>

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

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

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

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

<p>Appeal from the United States Court of Appeals in the Indian Territory. Clifford L. Jackson and Joseph M. Bryson, for appellants. G. A. Pate, Yancey Bewis, and J. H. Gordon, for appellees.</p>